of VIGOR GmbH, 3/2012
I. Order Placement Policy
Our Purchasing Conditions, which can also be found in their current applicable version at www.vigor-equipment.com, apply exclusively; conditions of the Supplier that contradict or deviate from the terms of sale shall not be recognised unless we have agreed to their applicability explicitly in writing.
Our Purchasing Conditions shall also apply if we – in full awareness of such supplier conditions contrary to or deviating from these Purchasing Conditions – accept the delivery of the Supplier without any reservation. By executing the order the Supplier accepts our Purchasing Conditions. Any change to our conditions which is contained in an order confirmation shall be classified by us as a rejection of our order. If the delivery/service is nonetheless carried out, then in view of the statements made above this shall be regarded as acceptance of our Purchasing Conditions.
Our Purchasing Conditions are applicable exclusively in business transactions with businesses as defined by Section 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), legal persons under public law or special funds under public law.
II. Offer – Offer Documentation
No compensation shall be provided for the processing of an offer. Deviations from our requests must be explicitly indicated in the offer. An order shall only be valid once it has been made in written form or, in the case of a verbal order or order by telephone, once we have confirmed it in writing. Our orders shall be immediately confirmed by the Supplier by means of order copy.
If the acceptance of an order is not received by us within 8 days, we reserve the right to withdraw the order free of charge.
We may, within the limits of reason, demand changes to the order with regard to design, implementation or delivery times so long as the Supplier has not yet fully fulfilled its obligations. Here the consequences (e.g. additional or reduced costs, delivery dates) shall be regulated appropriately by mutual consent.
The Supplier must always perform services itself and may only allocate subcontracts following our written approval.
If we demand initial/outturn samples, the Supplier my only start the manufacturing of the delivery item once a corresponding written approval has been submitted by us.
If the Supplier ceases to make its payments, its cheques bounce or the opening of an insolvency proceeding on its assets is applied for, we may, without prejudice to any other right, rescind the contract with regard to the part of the contract that has not yet been fulfilled.
III. Prices, Scope of Delivery and Service
The agreed prices are fixed prices and shall apply with free delivery to the recipient location/plant specified by us including packaging, transport insurance and all other additional costs.
If research, designing, development, drafting or similar services are part of the order, the Supplier is obligated to transfer all results to us, in particular design and manufacturing drawings as well as documentation and user manuals etc., and to grant us all unrestricted usage rights free of charge for these results of its work. In the case of software development, the scope of delivery shall include the delivery of the software in source and object program form and the documentation of the software development and application; this also applies to later updates within the framework of a maintenance contract.
We can only accept cardboard packaging with the "RESY" recycling system. Cardboard packaging without the required overprint shall be sent back at the cost and risk of the Supplier.
If reusable packaging is used, the Supplier shall make the packaging available on loan. Here we shall only be liable for intentional damage and gross negligence in the event of damage during the loan. Returns will be made at the cost and at the Suppliers own risk. If we state our agreement to the taking on of packaging costs as an exception, these are to be calculated at the net cost price.
IV. Delivery Dates, Contractual Penalties and Transfer of Risk
Agreed delivery dates are the dates of the receipt of deliveries and completion of services and are must be adhered to. This also applies to deadlines. Partial deliveries/services are only permissible following our prior written approval.
If the Supplier is delayed, we shall have the right to demand lump sum compensation for the delay amounting to 1 % of the delivery value per ended week but no more than 10%; further legal claims (withdrawal and compensation) remain reserved. The Supplier has the right to prove to us that due to the delay no or very low damages have resulted. The reservation of the contractual penalty according to Section 341 par. 3 BGB can be asserted by us up until the final payment of the underlying contractual relationship, for framework or permanent contracts up until the end of the year of delivery but delivery year, but at least within 14 days after acceptance of fulfillment.
If doubt in the Supplier's ability or willingness to perform exists before or after the due date, in particular, because the Supplier has stated that it is not able or willing to perform in due time, and if we have an urgent interest in clarification, then we may set a deadline for clarification for the Supplier before or after the due date and, if necessary, a deadline to prove its ability or willingness to perform. Once this deadline has expired without success, we may rescind the contract according to Section 323 BGB and/or claim damages according to Section 280.281 BGB or damages instead of the service. This shall be without prejudice to further claims.
For purchasing contracts, transfer of risk to us always occurs upon delivery at the recipient plant stated by as part of the order; in the case of contracts for work and services this is always after unrestricted acceptance by the plant.
V. Disruptions and Defects
If events which lie outside our potential influence occur (e.g. strikes and lockouts, operational disruptions and delays by suppliers as well as all cases of force majeur), we shall be freed from the obligation to accept for the duration and scope of these events if we cannot prevent such a disruption by reasonable measures. We are obligated to inform the Supplier of such circumstances. If such hindrances exist for a prolonged period of time and if the economic importance of the contract changes in such a way that adherence to the contract would be unreasonable, each Party shall be entitled to rescind the contract if no adjustment with mutual agreement is possible.
The Supplier must adhere to the recognised technical rules, existing safety regulations and the agreed technical data, dimensions, weights and other properties for their services and deliveries. Productions according to our drawings or samples that have been approved by us must correspond to the specifications. If the order stipulates no further requirements, then services and deliveries are to be performed in the customary trade quality in particular and, where they exist, in accordance with DIN, VDE, VDI standards or the equivalent national or EU standards. In particular, they are to be performed in such a way that at the recipient plants for services/deliveries stated by us they correspond to the legal regulations for technical working equipment, accident prevention, workplace safety, hazardous materials, emission protection, water protection and waste law.
The Supplier must inspect our plans, drawings and the other specifications for the performance of the service or components that we have provided for their completeness, correctness and suitability for the intended purpose. If concerns exist in this regard, the Supplier must inform us immediately in writing. If the Supplier fails to do this, it is liable to warranty in this regard.
The examination and complaint deadline according to Section 377 of the German Commercial Code (HGB – Handelsgesetzbuch) amounts to 2 weeks after delivery at the recipient plant in accordance item IV, 4 of the above. For defects which are not detectable in the examination, the complaint deadline amounts to two weeks after the defect is discovered. In an individual case where a longer deadline is appropriate, this one shall apply.
For deliveries of large numbers or quantities of items, examination of random samples will be sufficient to comply with the examination required in the regulations. If test sample test determines that more than 5% of the random samples are defective, we are entitled to inspect the entire delivery at our own discretion and at the cost of the Supplier or to assert our defect rights for the entire delivery. For our benefit this shall be without prejudice to further rights.
We reserve legal claims for defects without restriction; in all cases we are entitled to demand at our own discretion the correction of defects by the Supplier or the delivery of a new item. The right to damages, in particular that to damages instead of the delivery, is explicitly reserved.
Return delivery of rejected goods takes place at the cost of the Supplier. Replacement deliveries must always be free of freight charges.
Our defect claims expire after three years, calculated from the delivery date at the recipient plant.
A suspension of the limitation period due to ongoing negotiations according to Section 203 sentence 1 BGB requires that we have exercised our asserted claims against the Supplier in writing.
VI. Payment – Assignment
Invoices must never be enclosed in the consignment and must instead be sent separately with all order information stated to our registered office in Remscheid if no credit note procedure has been agreed upon. The invoices must contain the markings and numbers of the packages, boxes, crates etc., numbers of the invoiced items with each sort listed individually as well as the net and gross weights.
Payment is always made after we have received the goods and the correct and checkable invoice and after the incoming goods inspection. Here the deadline is extended if the delivery results in complaints and thus to delays in the incoming goods inspection. After this period we shall be entitled to deduct a discount for the withheld amount in accordance with item 3 below.
Payment conditions unless agreed upon otherwise:
on the 25th of the month following the delivery ./. 3% discount, within 65 days without deduction
prepayments and advance payments require a specific written agreement and must be ensured by the Supplier in advance with permanent absolute bank guarantees. The guarantee must be subject to German law and identify Remscheid as the exclusive court of venue. In addition, the legal regulation of Section 239 BGB is applicable.
All rights and obligations from orders which are based on our Purchasing Conditions, with the exception of money claims, can not be rescinded or transferred by the Supplier without our prior written approval.
VII. Product liability
The Supplier shall take on the obligation of inspecting the items and vendor parts it delivers for manufacturing defects thoroughly and with a view to the intended use.
If the Supplier is responsible for product damage due to defects in design or manufacturing and/or a breach of its inspection obligation, then the Supplier shall be obligated to release us on first request from damages claimed by third parties in this respect. The same shall apply in cases where the delivery or conduct of the Supplier is the cause of the damage.
In the context of its liability for cases of damage as defined by item 2 above, the Supplier shall be obligated to reimburse any expenses according to Sections 683, and 670 BGB as well as Sections 830, 840 and 426 BGB which were incurred as a result of or in connection with a recall action carried out by us. We shall – to the degree possible and reasonable – inform the Supplier about the content and scope of the recall action measures to be carried out and provide the Supplier with an opportunity to make a statement. This shall be without prejudice to other legal claims.
In the event of claims against us by third parties in accordance with product liability law, the Supplier shall make available to us all information which is required in relation to the aforementioned case of product liability.
VIII. Property Rights of Third Parties
The Supplier shall be liable for ensuring that no patents or other property rights of third parties in Germany or abroad are violated by us with the Supplier's delivery or the exploitation thereof. We deliver worldwide. The Supplier shall not be liable if it has manufactured the delivered goods according to drawings, models or other descriptions or designs equivalent to these that were provided by us and it could know that the property rights of third parties would be violated in connection with the goods it manufactured.
The liability for damages relates to all necessary expenses incurred by us in connection with the making of a claim by a third party.
IX. Provision of Materials
Materials and parts which are provided remain our property and shall be stored separately and only used for our order by the Supplier. The quantity provided is to be inspected immediately and differences reported to us immediately. Differences which are determined later shall not be accepted.
If parts of a third party are sent directly to the Supplier, the Supplier must carry out the incoming goods inspection and the quality check on our behalf. The Supplier must notify the subcontractor of complaints immediately in accordance with the complaint deadlines of Section 377 HGB and inform us of this in written form.
Processing or reshaping is carried out for us by the Supplier. If the item provided by is processed with other items which do not belong to us, we shall acquire joint ownership of the new item according to the ratio of the value of our item to the other processed items at the time of processing.
If the item provided by is combined with other items which do not belong to us, we shall acquire joint ownership of the new item according to the ratio of the value of our item to the other combined items at the time of combination. If the combination occurs in such a way that the Supplier's item must be considered the primary item, then it shall be considered agreed that the Supplier shall transfer proportional joint ownership to us. The supplier shall retain the joint ownership for us. The above provisions apply correspondingly if the Supplier mixes or blends the item provided by us with other items.
The parts made available by or for us may not be sold, pledged or transferred in any manner to third parties or utilised for third parties in any other way without our written consent.
The Supplier shall insure the item which belongs to us on the basis of sole or joint ownership, including the new item resulting from processing, against property damage and loss etc.
The Supplier must always facilitate an inspection of the parts being processed or to be processed by us and/or the authorities during regular working hours.
X. Manufacturing Means
Manufacturing means such as models, samples, dies, tools templates, drawings, standard specification sheets and similar which are provided to the Supplier by us or which are manufactured by the Supplier according to our specifications are our property and are to be clearly marked as such. The aforementioned manufacturing means may not be sold, pledged or transferred in any manner to third parties or utilised for third parties in any other way without our written consent. The same applies for items produced using these manufacturing means; they may only be delivered to us unless we have declared our agreement to other uses in written form. The Supplier shall be obligated to insure items which are out property against property damage, loss etc. The same obligation shall be placed on sub-contractors.
After the completion of our orders and/or the settlement of an order by us which entail the provision of manufacturing means to the Supplier by us or the production of manufacturing means at our expense, these are to be sent back to us without any special request.
Items which we have developed or further developed in cooperation with the Supplier may only be delivered to us.
The Supplier shall grant us all usage rights free of charge for the results of its work with the manufacturing means provided by us.
XI. Company Names and Markings
Our company names as well as brands and part numbers are to be affixed to the ordered goods if our drawing specifies this or if we have issued an instruction to do so.
The items marked in this way – if no other agreement has been made – may only be delivered to us.
Returned and faulty goods which are marked with our company name and brand must be made unusable with verification by means of a process which is agreed upon with us in advance.
The Supplier shall be obligated to treat all commercial and technical details that are made known to it through the business relationship as a trade secrets if these are not already public knowledge and not to utilise them itself. This obligation continues to apply after the end of the contractual relationship.
The supplier may only advertise its business relationship to our company following prior written approval by us. This shall apply regardless of whether the advertising refers explicitly to us or only to the contractual object, i.e. for adverting with our products and brand, the exhibition of our products and also the use of our products and name in sales documents such as brochures, leaflets and brochures accordingly.
XIII. Final Provisions
Extended and prolonged reservation of proprietary rights of the Supplier are excluded.
The place of fulfillment and court of venue for all contractual and non-contractual disputes shall be that of our registered office. In particular, this jurisdiction shall exclude any other jurisdiction which may be legally provided for because of personal or material association. Furthermore, the customer shall not not entitled to initiate legal proceedings against our company before any court other than the exclusive court of venue. We are, however, entitled in isolated cases to bring charges in the jurisdiction of the Supplier's registered office or before other courts having jurisdiction based on of German or foreign law.
The legal relationship between us and the Supplier is exclusively subject to the law of the Federal Republic of Germany excluding the respective national provisions on the international conflict of laws, and the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11. April 1980 (CSIG).