General terms and conditions of purchase
1.1 These General Terms and Conditions of Purchase shall apply to all our - including future - orders for goods, services and contract work and to the performance of such orders towards businesses within the meaning of Section 14 (1) of the German Civil Code (BGB). We do not accept any terms and conditions of the supplier that conflict with or deviate from these Terms and Conditions of Purchase unless otherwise stipulated in the contract with the supplier - whereby, in the event of participation in electronic platforms of the supplier, it shall not be deemed acknowledgement or consent if, due to the system, selection fields must be activated for acceptance of the terms and conditions of use or other general terms and conditions of the supplier. If we accept the goods without express objection, it can in no case be inferred from this that we have accepted the supplier's terms and conditions.
1.2 Oral agreements made by our employees shall only become binding upon our confirmation in text form.
1.3 The German version of these General Terms and Conditions of Purchase shall prevail for the interpretation of these General Terms and Conditions of Purchase, even if translations are provided to the supplier or signed by the parties.
1.4 If provisions in these General Terms and Conditions of Purchase or other contractual provisions be or become ineffective, the remainder of the contract shall remain in effect.
1.5 Unless otherwise agreed by contract, the Incoterms in the version applicable at the time of conclusion of the contract shall apply.
2. Enquiries, Offers, Orders
2.1 Our enquiries are non-binding. Our orders are only binding for us if and insofar as we have confirmed them in text form.
2.2 If the supplier deviates from our enquiry in its offer, the supplier must expressly point this out. Offers shall be made free of charge and shall be non-binding for us; no remuneration shall be granted for visits, preparation of plans, drawings and the like without express agreement in text form.
3. Prices, Payment
3.1 Agreed prices shall be binding. Unless otherwise agreed, the prices shall be DDP in accordance with the Incoterms in the version applicable at the time of conclusion of the contract, including the costs for packaging, transport, insurance, customs duties, taxes and other charges. If the delivery is not made DDP on the basis of an agreement between the parties, the supplier shall take out transport insurance at its own expense.
3.2 Invoices shall be submitted separately from the con- signment of goods in triplicate, stating the respective destination, our order number and any other markings required in the order.
3.3 Unless otherwise agreed, payments shall become due and payable at our option within 14 days upon receipt of invoice and goods with a 3% discount or within 30 days upon receipt of invoice and goods net. Insofar as documentation, test certificates (e.g. 3.1 acceptance test certificates) or similar documents are part of the scope of performance, the aforementioned payment periods shall not commence before these documents have been handed over to us in accordance with the contract.
3.4 As a rule, payments shall be made by bank transfer. Payment shall be deemed to have been made on time if the bank transfer has been commissioned on the due date.
3.5 Interest on maturity cannot be claimed. The default interest rate shall be 5 percentage points above the base interest rate pursuant to § 247 BGB. In any case, we are entitled to prove a lower damage caused by default than demanded by the supplier.
3.6 We shall be entitled to rights of set-off and retention to the extent provided by law. In particular, we are entitled to retain the purchase price if and as long as agreed test certificates are not delivered to us.
4. Delivery and other services ("Performance")
4.1 Agreed dates and deadlines are binding.
4.2 Should circumstances arise which appear to jeopardise proper performance at the agreed time, the supplier must notify us of this immediately, stating the reasons. The obligation to comply with the agreed per- formance time shall not be cancelled by this. The supplier shall bear any additional costs for an accelerated mode of transport which becomes necessary due to the agreed delivery time being exceeded.
4.3 The receipt of the goods by us shall be decisive for compliance with the performance date or the performance period, unless otherwise agreed in text form.
4.4 If the supplier is in default of performance, we shall be entitled to the statutory claims. In particular, we shall be entitled to claim damages for non-performance if and insofar as the supplier fails to perform after a reasonable grace period set by us has elapsed. Our claim to the delivery is only excluded when the supplier has compensated us for our damages.
4.5 The unconditional acceptance of the delayed performance does not constitute a waiver of our rights, if any, for exceeding the performance time.
4.6 The supplier may only invoke the absence of documents to be made available to us which are necessary for the execution of the delivery if he has not received the documents despite a written reminder and the setting of a deadline.
4.7 Unless otherwise agreed, delivery shall be made "DDP" in accordance with the Incoterms in the version applicable at the time of conclusion of the contract; the supplier shall bear the risk until the goods are handed over at the place of destination. The quantities, dimen- sions and weights determined in our factory shall be decisive for payment.
4.8 Unless otherwise agreed in text form, the supplier shall provide packaging suitable for the delivery of the goods at its own expense. If we bear the costs of the packaging in an individual case, this shall be charged to us at the lowest possible price. The obligations to take back the packaging shall be governed by the German Packaging Act (Verpackungsgesetz) in the version applicable at the time of the conclusion of the contract, with the proviso that the packaging shall always be taken back at our registered office, unless otherwise agreed. The costs for the return transport and the disposal of the packaging shall in any case be borne by the supplier.
4.9 Shipping documents such as notes of lading, delivery notes, packing slips and the like as well as, insofar as contractually agreed, legally required or customary in the trade, works certificates and safety data sheets shall be enclosed with each consignment. The order numbers and the markings required in the order shall be indicated in all documents. A dispatch note and a delivery note (in dupli- cate) must be sent to us for each individual consignment no later than on the day of dispatch. Ship arrivals are to be notified to us 48 hours prior to receipt. If we do not have proper shipping documents at the time of receipt of the goods or if our order numbers are not correctly stated in the shipping documents, all additional costs incurred as a result shall be borne by the supplier. Clause 4.11 sentence 2 shall apply accordingly.
4.10 The supplier is only entitled to partial performance with our prior consent. Our right to demand partial performance from the supplier remains unaffected.
4.11 The supplier is not entitled to perform its service before the agreed time of performance. In the event of premature delivery, we shall have the right to refuse acceptance of the goods or to return the goods to the supplier at the supplier's expense and risk or to store them until the agreed performance time. When performing its services, the supplier shall observe our opening hours.
5. Declarations concerning the origin of the goods
5.1 At our request, the supplier shall provide us with a supplier's declaration on the preferential origin of the goods and / or a certificate of origin on the non- preferential origin of the goods at his expense.
5.2 In the event that the supplier makes declarations regarding the preferential or non-preferential originating status of the goods sold, the following shall apply:
a) The supplier undertakes to enable the verification of proofs of origin through customs authorities and to provide both the information necessary for this purpose and any required certification.
b) The supplier is obliged to compensate for the damage caused by the fact that the declared origin fails to be acknowledged by the competent authority as a result of faulty certification or the lack of the possibility of verification, unless the supplier is not responsible for these consequences.
Execution, Work on our premises, Performance documents, Deployment
6.1 Supplier's deliveries and services shall be performed in such a way that they comply with the contractual agreements, the relevant accident prevention regulations, the industrial safety, environmental and other regulations, the relevant technical standards as well as the generally recognised rules of technology and all applicable legal standards including the REACH Regulation. Furthermore, the relevant requirements for the protection of the envi- ronment, human rights, social and employee concerns in the supply chain must be observed, including the re- quirements regarding so-called conflict minerals. The supplier undertakes to provide us with the relevant decla- rations, certificates or other evidence free of charge. During performance, the supplier shall ensure that work is carried out in the most environmentally friendly manner possible, with the greatest possible conservation of resources and the greatest possible avoidance of emissions.
6.2 We are entitled to demand a modified performance even after conclusion of the contract, unless the modifica- tion demanded by us is unreasonable for the supplier, taking into account our interests.
6.3 Persons working on our premises in fulfilment of the supplier's obligations are subject to our instructions and the provisions of our operating regulations as well as the accident prevention, occupational safety, environmental and other regulations applicable to us. Hazardous substances may only be used within our premises after consultation with us and must be properly labelled.
6.4 The supplier may not use, reproduce or make available to third parties for purposes outside the scope of the contract any execution documents provided by us for the manufacture of the delivery item. The execution documents shall be returned to us upon request, at the latest after execution of the deliveries and services of the supplier.
6.5 The supplier shall provide us with plans, working drawings, technical calculations as well as other docu- ments and records relating to the goods insofar as we require these documents and records for the use, maintenance or repair of the goods or insofar as this has been agreed by the parties. Upon request, the supplier shall also provide us with spare parts drawings with suffi- cient information on the procurement of spare parts. Upon transfer or delivery of the documents, records and drawings, these shall become our property. Furthermore, the supplier shall submit to us for inspection all docu- ments and records relating to the goods - even before delivery of the goods - insofar as this is necessary for monitoring and verifying the conformity of the goods with the contract; any approval of such documents and records by us shall not release the supplier from its responsibility for the conformity of its performance with the contract, unless we insist on the performance requested byus despite supplier’s concerns having been communicated to us in writing.
6.6 Moulds, tools, print templates, etc. charged to us shall becomeour property upon payment; they shall be held in safe custody for us by the supplier free of charge and shall be handed over to us upon request.
6.7 Materials provided by us remain our property. Any processing or transformation shall be carried out for us without any obligation on our part. Material provided shall be stored clearly and separately from other items and shall be identified as our property; it shall be adequately insured against fire, water and theft at the supplier's expense.
Quality / Environment, Acceptance
7.1 The supplier shall carefully inspect the outgoing goods and establish and maintain a documented quality assurance and environmental management system which is suitable in terms of type and scope and which complies with the latest standard. He shall keep records, in particu- lar of his quality inspections, and make them available to the Buyer upon request. The supplier hereby consents to quality / environmental audits to assess the effectiveness of its quality assurance and environmental management system by the buyer or a person appointed by the buyer. In particular, we are entitled to enter the supplier's premises at any reasonable time after prior notice and to inspect the goods and the production process - including before completion of production. If the goods are located on the premises of a third party, the supplier shall take all measures to enable us to inspect the goods. Any defects identified during the inspection of the goods shall be remedied by the supplier. Any provisions in quality as- surance agreements shall remain unaffected.
7.2 If acceptance is required by applicable statutory provisions or by agreement, formal acceptance shall be carried out and an acceptance report shall be carried out.
Warranty provisions and statute of limitations
8.1 The supplier shall provide us with the goods free of material defects and defects of title. In particular, the supplier will certify that its deliveries and servies comply with the state of the art and with any contractual requirements and technical standards.
8.2 We will examine the quality and completeness of the goods upon its receipt to the extent both reasonable and technically feasible for us. A reasonable examination shall, in the absence of any contrary indication, not include possible defects which are not apparent to the eye, but detectable only in case of examinations of the inner properties of the goods. In the case of delivery of several products of the same kind, a random inspection of incom- ing goods shall suffice. Notifications of defects do not require any form and are - in cases of hidden or con- cealed defects – deemed to be in time if they reach the supplier within fourteen days. In such cases, the period for notification of defects shall commence at the time at which we - or in the case of drop shipment („Strecken- geschäfte“) our customers - have detected or should have detected the defect.
8.3 If the goods have a material defect, we shall be en- titled to the statutory rights at our discretion. If the supplier tries to remedy the goods, such remedy shall be deemed to have failed after the first unsuccessful attempt. We shall also have the right to withdraw from the contract if the relevant breach of duty by the supplier is only insignificant.
8.4 We can demand compensation from the supplier for those expenses in connection with a defect which we have to bear in relation to our customer if the goods were already defective when the risk passed to us.
8.5 In the event of a justified notice of defect, we shall be entitled to charge a flat-rate fee for warranty handling of Euro 100.00, unless the supplier proves a lower expense. Further rights remain reserved.
8.6 If the supplier allows a reasonable period of time granted to the supplier to expire without having remedied the defect or having delivered defect-free goods, we may elect to remedy the defect ourselves or have it remedied by a third party at the supplier's expense. This shall not affect either the statutory provisions pursuant to which a period of grace is not mandatory nor any statutory warranty remedy.
8.7 Our approval of plans, execution drawings, technical calculations, etc. of the supplier shall not affect his warranty obligation.
8.8 The limitation period for claims for defects is three years, unless the law provides for longer limitation peri- ods. The statutory provisions on the suspension of expiry for recourse claims remain unaffected.
8.9 The limitation period for claims for defects concerning items ordered as spare parts for goods purchased from the supplier shall not commence until the spare parts have been installed; however, the limitation period shall end no later than five years after delivery of the spare parts to us.
9. Contractual Penalty
If a contractual penalty has been agreed, we may de- mand payment of any contractual penalty even if we had not reserved suchright at accepting performance; however, the contractual penalty must be asserted at the latest at the time of final payment.
10. Release from liabilities arising from manufacturer´s and product liability, liability insurance
10.1 The supplier shall indemnify us against any liabilities to third parties arising from manufacturer's liability or product liability insofar as the supplier is responsible for the product defect giving rise to the liability.
10.2 The supplier undertakes to take out and maintain liability insurance with an appropriate sum insured for personal injury and property damage.
11. Set-off and retention, Exclusion of assignment
11.1 The supplier shall only be entitled to a right of reten- tion and a right of set-off to the extent that its counter- claims are undisputed or have been legally established,they are based on the same contractual relationship with us and / or they would entitle the supplier to refuse its performance pursuant to § 320 BGB.
11.2 The assignment of claims of the supplier against us to third parties is excluded; § 354a HGB remains unaffected.
12. Ethical standard, Corporate social responsibility, Anti-corruption
12.1 The supplier shall assume social and economic responsibility for sustainable business practices and the security of the supply chain. The supplier undertakes to ensure that in the manufacture and supply of products and in the provision of services all legal provisions on the protection of human rights, compliance with the relevant labour standards and the prohibition of discrimination as well as forced and child labour are complied with. Furthermore, the supplier undertakes to comply with the legal provisions of the Supply Chain Act and any other national or European provisions on the protection of the environment and human rights in the supply chain. The same applies to the legal requirements with regard to sustainability, Co2 emissions ("carbon footprint") and resource conservation. At our request, the supplier shall provide information and evidence free of charge. This shall also apply if the supplier is not subject to the direct scope of application of the relevant provisions. Finally, the supplier undertakes not to tolerate any form of corruption and bribery or to engage in this in any way.
12.2 We expect from our suppliers ethically impeccable conduct and compliance with ethical rules comparable to the ethical rules of Tata Steel, to which we have sub- scribed and which we will gladly send upon request. In particular, the supplier is obliged to
- comply at all times with all applicable laws, including anti-bribery rules, and to ensure that it does not violate or cause others to violate any applicable law;
- assist us at any time in any investigation of an accident or incident and in the resolution of any dispute in connection with the supplies by making personnel available for interviews, providing access to documents and files, allowing communications with authorities and supplying any information reasonably requested by us;
- allow us or our representative access to its premises, information and personnel at any time to allow us and / or our representative to verify compliance with the obligations set out in this clause;
12.3 If the supplier breaches any of the obligations in this clause, we shall be entitled to terminate the contract in whole or in part or to cancel all orders without incurring any liability to us.
12.4 The obligations in this clause apply to the supplier and its employees, subcontractors, agents, affiliates and any other persons involved in the performance of the supplier's obligations under the contract.
13.1 The supplier is obliged to keep confidential the confidential information received from us or brought to its knowledge, not to disclose it to third parties (subject to clause 13.2) and to use it only insofar as this is necessary for the proper execution of the contractual relations.
13.2 The supplier may only disclose confidential infor- mation to employees and consultants to the extent that this is necessary for the proper execution of the contrac- tual relationships. The supplier is obliged to impose on such employees and consultants the confidentiality obligation referred to in clause 13.1 and to prove this to us in text form upon request.
13.3 The confidentiality obligation shall not apply to such information which was already in the public domain at the time of its transmission to the supplier or which became in the public domain after its transmission without the supplier's involvement.
13.4 The disclosure of the confidential information and the possible transmission of corresponding documents shall not establish any rights to our industrial property rights, our know-how or our copyrights.
14. Supplementary conditions for contract work and other services
14.1 The supplier is obliged to subject goods provided by us to a proper incoming goods inspection and to notify us of any defects without delay.
14.2 Goods provided by us for processing or other treat- ment as well as materials, parts, containers and special packaging provided by us shall remain our property. Treatment and processing of our goods shall be carried out for us as manufacturer within the meaning of § 950 BGB (German Civil Code), without obligating us.
14.3 In the event of culpable depreciation or loss of our goods or items provided by us, the supplier shall pay compensation. The existence of sufficient insurance cover shall be proven to us by the supplier upon request.
14.4 The basis for the invoicing of contract work shall be exclusively the evidence acknowledged by us, in par- ticular time sheets. The goods delivered (processed) by the supplier shall be listed individually on a delivery note to be countersigned by us.
15. Place of performance, Place of jurisdiction, Applicable law
15.1 The place of performance for the delivery of the goods shall be the destination named by us. The place of performance for our payments shall be our registered office.
15.2 If the supplier is a merchant in the terms of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law or has no general place of jurisdiction in Germany, the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office. However, instead of the aforementioned court, we shall be entitled to invoke any other court having jurisdiction in accordance with the statutory provisions.
15.3 All legal relations between us and the supplier shall be governed by the laws of the Federal Republic of Germany supplementing these Terms and Conditions, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
16. Data storage
The General Data Protection Regulation (DSGVO) shall apply to the storage and processing of our data and the data of the supplier.
Fischer Profil GmbH
Tel: +49 (0) 27 37 – 5 08 – 0