VIGOR General Terms and Conditions of Purchase of
version as of 09/2017
I. General provisions
- Our General Terms and Conditions of Purchase in their amended version, also retrievable under www.vigor-equipment.com, shall exclusively apply and any conflicting terms and conditions deviating from the terms and conditions of the supplier shall be excluded, unless we have expressly agreed to their application in writing.
- Our General Terms and Conditions of Purchase shall also apply if we accept the delivery of the supplier without reservations despite our knowledge of any conflicting or deviating terms and conditions of purchase of the supplier. With executing the contract, the supplier accepts our Terms and Conditions of Purchase. Any change in our Terms and Conditions contained in the confirmation of the order will be deemed to be a refusal of our order. However, should the delivery/service be performed, then this shall be deemed to be the acceptance of our Terms and Conditions of Purchase in accordance with the aforementioned.
- Oral collateral agreements shall not be made. The amendment or supplement of contracts which are concluded between us and the supplier shall require the written form. This shall also apply to any amendment of the requirement of the written form.
- Our Terms and Conditions of Purchase shall exclusively apply to commercial transactions with companies within the meaning of Section 14 BGB [German Civil Code], legal entities of public law or any special fund under public law.
II. Offer – offer documentation
- The preparation of an offer by the supplier will not be remunerated. Any deviations from our requests shall be expressly referred to in the offer.
- Orders, supply agreements and delivery schedules as well as their amendments shall require the written form to be effective. An order by means of electronic data interchange (EDI) shall be permissible.
- Should the acceptance of the order in writing or by means of EDI not be received by us within a period of eight days, then we will reserve the right to withdraw from the order for free.
- Within the limits of reason, we may request changes in orders with regard to construction, execution or delivery time if the Supplier has not fully fulfilled their obligations yet. For this reason, the effects (e.g. additional or reduced costs, delivery dates) shall be agreed upon reasonably mutually.
- In principle, the supplier shall have to perform their obligations themselves and may sub-contract only after written consent obtained by us.
- If we request initial samples/outturn samples, the supplier may begin only after obtaining a corresponding written approval by us for the production of the delivery object. The presentation of the initial/outturn samples, including initial sample inspection report shall be for free, unless an agreement deviating thereof has been met.
- Should the supplier cease their payments, cheque retours be performed or the opening of insolvency proceedings initiated, then we may rescind from the part of the contract which was unfulfilled notwithstanding of other rights.
IV. Scope of delivery and performance
- If research, constructions, developments, designs or other services are part of the order, then the supplier shall be obligated to hand over all results, particularly construction and production drawings as well as documentation, user manuals etc. to us and to grant us all unrestricted rights to use in these results of their works for free. Upon development of software, particularly the delivery of software in source and object programme format and the documentation of programme development and application shall be part of the scope of performance. This shall also apply to later updates as part of the maintenance contract.
- Only cardboard packages of the recycling system “RESY” can be accepted by us. Cardboard boxes without the requested imprint will be returned at the expense and risk of the supplier.
- When using reusable packaging, the supplier will provide the packaging by way of loan, whereby we shall be liable for damages during the loan period only in the event of intention and gross negligence. The return shall be performed at the expense and risk of the supplier. Should we exceptionally agree upon the assumption of the packaging costs, then those shall be calculated at cost price.
- Long-term supplier’s declarations shall be provided upon request to VIGOR for free.
V. Delivery dates, contractual penalty and transfer of risk
- Dates agreed upon shall be dates of receipt of goods and successful performance and shall be mandatorily complied with. This shall also apply to time limits. Partial deliveries/performances shall be permissible after prior written consent only.
- In the case of culpable non-compliance with the contractually agreed delivery dates, we will be entitled to payment of a contractual penalty in the amount of 0.1% of the net order sum for each working day exceeding the time limit, in total, however, a maximum of 5% of the net order sum. The agreement on a contractual penalty shall not exclude the assertion of further claims. The contractual penalty, however, shall be considered when calculating claims for damage. The agreement of new dates shall not imply the cancellation of already forfeited contractual penalties.
- In case of doubt of the ability or willingness to perform of the supplier prior to or after maturity of payment, particularly as the supplier announces not to be able or willing to perform on time and if we have an urgent interest in the clarification of the matter, then we may set a time limit for the supplier for clarification prior to or after maturity and for evidence of their ability or willingness to perform. After fruitless expiry of the term, we may rescind from the contract according to Section 323 BGB and/or assert claims for damage and/or compensation in lieu of performance in accordance with Sections 280,281 BGB. Any further rights shall remain unaffected.
- Should the supplier deliver prior to the agreed delivery date, then we will have the right to either refuse or accept the delivery at our own discretion and to retain the purchase price until the agreed due date.
- In the case of purchase agreements, the risk will always be transferred upon delivery to the location of receipt determined by us as part of the order only. This shall apply to work contracts after unconditional acceptance of the work only.
VI. Force majeure
- Should events occur which are beyond our control (e.g. strikes and lockouts, breakdowns and delay caused by subcontractors as well as any cases of force majeure) then we will be released from the obligation to accept for the term and scope of the events, unless we can avert the failure using reasonable means. We hereby undertake to inform the supplier of those conditions immediately. Should any such impediments persist over a longer period of time and should the economic purpose of the contract change, so that it would be unreasonable to adhere to the contract, then any party shall be entitled to rescind from the contract unless an adjustment by mutual agreement is possible.
VII. Quality, documentation, environmental protection
- The supplier shall be obligated to comply with all generally recognised codes of practice applicable to their supplies and services, applicable safety regulations and the agreed, technical specifications, dimensions and weights and other properties. Goods produced according to our drawings or the models approved by us shall comply with the specifications. Unless the order does not involve any further requirements, the supplies and services should particularly be delivered in merchantable quality and should DIN, VDE, VDI and other equivalent national or EU standards be applicable, then the supplies and services should be in compliance with those standards. They shall particularly be performed such that they comply with any legal provisions on technical work equipment, accident prevention, the protection at the workplace, hazardous substances, protection against emissions, water protection and waste legislation applicable to the locations of receipt determined by us for supplies and services.
- The supplier shall check our plans, drawings and other details for performance or any accessory parts for completeness, correctness and suitability for the intended purpose. If in doubt, then the supplier shall notify us immediately in writing. Should they fail to notify us, then they will become liable in case of any damage resulting from this failure. Any amendments of the supplies and services ordered shall require prior written consent of customer.
- For the labelling of safety components stated in the technical specifications or particularly by separate agreement, e.g. with „D“, the supplier will additionally prepare records about the time, type of control and controller regarding the properties being subject to documentation and which results were found after performance of requested quality checks. The control documentation shall be kept for a period of ten (10) years and to be submitted to us upon request. Previous suppliers shall be obligated to the same extent by the supplier as permissible by law. For reasons of instructions, we refer to the document by the VDA [German Automotive Industry Association] Nachweisführung – Leitfaden zur Dokumentation und Archivierung von Qualitätsforderungen [Records of evidence – Guideline for documentation and archiving of quality requirements“, Frankfurt am Main 1998.
- We will inform each other about options for quality improvement. In addition to that, the supplier will receive information about applicable safety regulations upon request.
- The period for examination and notification according to Section § 377 HGB [German Commercial Code] shall be two weeks from delivery at the location of receipt determined by us. The period for notification of non-apparent defects shall be two weeks from detection of the defect. Should a longer period be reasonable in the individual case, then this longer period shall apply.
- In the case of deliveries with larger numbers or quantities, random samples shall suffice for proper examination. Should the random sampling show that more than 5% of the random samples are deficient, then we will be entitled at our own discretion to control the entire deliveries at the expense of the supplier or to assert our rights to claim for damage due to defects for the entire delivery. Additional rights remain unaffected to our benefit.
- We shall be entitled to the unrestricted statutory claims for defects. In any case, we shall be entitled at our own discretion either to request the rectification of a defect or the delivery of a new good from the supplier. The right to compensation of damage, particularly to compensation in lieu of performance, shall expressly remain reserved.
- Returns of rejected goods shall be performed at the expense of the supplier. The delivery of a replacement shall always be performed “carriage paid”.
- Our claims for damage due to defective goods shall be statute-barred in three years, calculated from delivery at the location of receipt.
- A suspension of the statute of limitations due to ongoing negotiations according to Section 203 first sentence BGB shall require assertion of our alleged claims in writing vis-à-vis the supplier.
IX. Prices – Payment
- The agreed prices shall be deemed to be fixed prices and shall apply independently of the determined location of receipt/plant incl. packaging, transport insurance and all other additional costs.
- Increases in price by the supplier shall be effective only if they have been mutually agreed upon with us in writing until june 30th a year for the coming year. Invoices may not be sent with the delivery, but separately, stating all order details, to our seat in Remscheid or by mail to email@example.com, unless a credit procedure has been agreed upon. The invoices shall include signs and numbers of the trading units, boxes, partitions etc., numbers of the invoiced items, listed per type as well as gross and net weights.
- Payment shall be made after contractual receipt of goods and receipt of the proper and auditable invoice with us as well as performed examination of the goods upon receipt. The period will be extended if the delivery leads to objections and delays in the examination of the goods upon receipt. Also after this period, we will be entitled to deduct a discount for the retained amount according to item 3.
- The payment conditions shall be the following, unless agreed otherwise: on the 25th of the month following delivery. /. 3% discount, within 65 days without deduction.
- Any advance or instalment payments shall require a separate written agreement and shall be secured by the supplier by unlimited absolute bank guarantee in advance. The bank guarantee shall be subject to German law and refer to Remscheid as exclusive place of jurisdiction. Otherwise, the statutory regulation of Section 239 BGB shall apply.
- All rights and obligations resulting from orders being based on our General Terms and Conditions may, with the exception of any monetary claims, not be assigned or transferred by supplier without our prior written consent.
X. Right of retention / Offsetting
- The supplier may be entitled to offsetting only if their counterclaims are undisputed or legally established. The same shall apply to any rights of retention and refusal of performance according to Sections 320, 273 BGB. The supplier may execute those rights only if they arise from the same contractual relationship. Each individual order shall be deemed to be an individual contract in an ongoing business relationship.
XI. Product liability / Indemnification
- If the supplier is liable for a product claim, then the supplier shall be obligated to indemnify us to this extent from any claims for damage and other claims asserted by third parties if the cause is based in the supplier’s sphere of control and organisation and if the supplier is liable in the external relationship.
- As part of the liability according to item 1, the supplier shall refund also such expenses which we incur in connection with the execution of a product recall. We will inform the supplier about such a product recall and give them the option to give a statement. Any further statutory rights will remain unaffected.
XII. Third party property rights
- The supplier shall be liable for preventing that their delivery and its exploitation by us does not violate any patents or other property rights at home and abroad. We deliver worldwide. The supplier is not liable if they have produced the delivered goods in accordance with the drawings, models or any equivalent other descriptions or orders provided by us and cannot know in connection with the products produced by them that third party property rights are violated by them.
- The liability for damages shall refer to all expenses necessarily arising from or in connection with the assertion of claims by third parties.
XIII. Provided material
- Provided material/components shall remain our property and shall be stored separately by the supplier and be used for our orders only. The number provided shall be controlled and differences shall be immediately announced in writing. Any differences determined at a later time will not be accepted.
- If components are directly sent to the supplier by a third party, then the supplier shall be obligated to perform the control of the goods upon receipt and the quality control on our behalf. The supplier shall notify the subcontractor of any defects immediately and within the periods for the notice of defects in accordance with Section 377 HGB and to inform us about the matter in writing.
- Any processing or conversion by the supplier will be performed on our behalf. If the item provided by us is processed with other items not being part of our property, then we will acquire joint ownership in the new item pro rata to the value of our item in comparison to items at the time of processing.
- If the item provided by us is incorporated into any other items not owned by us, we will acquire joint ownership pro rata the value of the item provided by us in comparison to the other incorporated items at the time of incorporation. If the incorporation is performed such that the item of the supplier can be considered to be the main component, then it shall be deemed to be agreed that the supplier shall transfer their share in the joint ownership to us. The supplier will keep the joint ownership on our behalf. Any arrangements above shall apply mutatis mutandis if the supplier mixes or blends the material provided by us with other materials.
- The components provided by us or on behalf of us may not be sold, pledged or forwarded otherwise nor used by third parties without our prior written consent.
- The supplier will insure the item solely or jointly owned by us, including the new item created by processing against damage to property, loss etc.
- The supplier shall be entitled at any time to allow a control of the processed components and components to be processed by us and/or authorities during normal office hours.
XIV. Production materials
- Production materials, such as models, samples, moulds, tools, jigs, drawings, standard sheets and the like provided to the supplier by us or produced in accordance with our descriptions, shall be our property and shall be clearly labelled as such. The production materials above may neither be sold, nor pledged nor forwarded nor used on behalf of third parties in any other way. The same shall apply to the items being produced with the help of these production materials. They may be delivered to us only if we have not agreed to another use in writing. The supplier undertakes to insure all items owned by us against damage to property, loss etc. Sub-contractors shall be obligated mutatis mutandis.
- After settling of our orders and/or processing of an order by us for which we provide production materials to the supplier or which have been produced at our expense, those shall be returned to us without special request.
- Items which we have developed or post-developed in collaboration with the supplier may be sent to us only.
- The supplier shall grant us any rights of use in the results of their works with the production materials provided by us.
XV. Companies and brands
- Our companies as well as brands and component numbers shall be attached to the ordered goods if it is required by our drawing or if we have issued a corresponding instruction.
- The items so labelled may be delivered to us exclusively only, unless otherwise agreed.
- Any returned, objected goods labelled with our company or brands shall be rendered unusable against proof by way of a procedure agreed upon with us.
- The supplier shall be obligated to treat all non-apparent, commercial and technical details known to them as a business secret as part of the business relationship and not to exploit them themselves. This obligation shall survive the termination of the contract.
- The supplier may advertise their business relationship with us after our prior written consent only. This shall apply notwithstanding whether the advertisement is expressly referred to us or solely to the subject matter of the contract, i.e. the advertisement with our products and brand, the display and also the use of our products and our name in the sales documents, such as brochures, leaflets and annual catalogues.
XVII. Final provisions
- The extended and expanded retention of title of the supplier shall be excluded.
- The place of performance and exclusive place of jurisdiction for all contractual and non-contractual disputes shall be the company’s seat in Remscheid. This jurisdiction shall particularly exclude any other jurisdiction provided by law due to its personal or material connection. The supplier shall neither be entitled to assert a counter-claim nor off-setting rights nor a right of retention against us before a different court other than the court with exclusive jurisdiction. We are, however, entitled to institute legal proceedings at the seat of the supplier or any other competent court according to domestic or foreign law in the individual case.
- The legal relationship between us and the supplier shall exclusively be subject to the law of the Federal Republic of Germany under exclusion of the applicable domestic international law of conflict and the United Nations Convention on Contracts of the International Sale of Goods dated 11 April 1980 (CISG).
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