General Terms and Conditions of Purchase

General Terms and Conditions of Purchase for SPL Spindel und Präzisionslager GmbH (as of November 2022)

1 Scope and form

(1) These General Terms and Conditions of Purchase (GTCPs) shall apply to all business relationships with our business partners and suppliers (“Sellers”). The GTCPs shall only apply where the Seller is an entrepreneur (Section 14 BGB [German Civil Code]), a legal entity under public law or a special fund under public law.

(2) The GTCPs shall apply in particular to contracts regarding the sale and/or delivery of movable items (“Goods”), irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the version of the GTCPs valid at the time the buyer placed the order, or at least the version last communicated to the buyer in text form, shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.

(3) These GTCPs shall apply exclusively. Any deviating, contradictory or supplementary General Terms and Conditions of the Seller shall only become an integral part of the contract if, and to the extent that, we have expressly consented to their applicability in writing. This requirement for consent shall apply in all cases, for example even if we accept the Seller’s deliveries without reservation with awareness of the Seller’s General Terms and Conditions.

(4) Individual agreements made with the Seller in individual cases (including ancillary agreements, supplements and amendments) shall always prevail over these GTCPs. Any written contract or our written confirmation shall be decisive for the content of such agreements, subject to proof to the contrary.

(5) Legally relevant declarations and notifications of the Seller in relation to the contract (e.g., the setting of a deadline, a reminder or withdrawal) must be made in writing, i.e., in writing or text form (e.g., a letter, email or fax). Statutory formal requirements and further evidence – in particular in the event of doubts about the legitimacy of the declarant – shall remain unaffected.

(6) References to the validity of statutory provisions shall be for the purposes of clarification only. Statutory provisions shall therefore also apply without such clarification, provided they are not directly amended or expressly excluded in these GTCPs.

 

2 Conclusion of the contract

(1) Our order shall be deemed binding at the earliest upon written submission or confirmation. The Seller shall inform us of obvious errors (e.g., typographical and calculation errors) and incompleteness of the order, including the order documents, for the purpose of correction or completion before acceptance; otherwise, the contract shall be deemed not to have been concluded.

(2) The Seller shall be obliged to confirm our order in writing within a period of 5 working days or to execute the order without reservation, in particular by sending the Goods (acceptance).

Any late acceptance shall be deemed to be a new offer and requires our acceptance.

 

3 Delivery time and delay in delivery

(1) The delivery time specified by us in the order shall be binding. If neither specified in the order nor otherwise agreed, the delivery time shall be 2 weeks from the conclusion of the contract. The Seller shall be obliged to inform us immediately in writing if it is unlikely to be able to meet the agreed delivery times for whatever reason.

(2) If the Seller fails to provide its services or fails to do so within the agreed delivery period, or if it defaults, our rights – in particular with regard to withdrawal and compensation for damages – shall be determined in accordance with the statutory provisions. The provisions of (3) below remain unaffected.

(3) If the Seller defaults, we may – in addition to further legal claims – demand flat-rate compensation for the damage incurred by us due to the default in the amount of 1% of the net price per calendar week commenced, but in total no more than 5% of the net price of the Goods delivered late. We reserve the right to prove greater damage. The Seller reserves the right to prove that no damage at all, or only a substantially lesser damage, occurred.

 

4 Performance, delivery, transfer of risk, delay in acceptance

(1) The Seller shall not be entitled to have the service it owes provided by third parties (e.g., subcontractors) without our prior written consent. The Seller bears the procurement risk for its services unless otherwise agreed in individual cases (e.g., limitation to available stock).

(2) Unless otherwise agreed in writing, delivery shall be DAP within Germany (Incoterms 2010) to the destination specified in the order. If the destination is not specified and nothing else has been agreed, delivery must be made to our registered office in 04720 Döbeln, Am Gewerbegebiet 7. The destination in each case shall also be the place of performance for the delivery and any subsequent performance (duty of delivery at our place of business).

(3) The packaging must be selected taking into account the relevant packaging standards so as to ensure a damage-free delivery and efficient internal handling at SPL.

(4) The delivery must be accompanied by a delivery note stating the date (issue and dispatch), the content of the delivery (item number and quantity) and our order identification (date and number). If the delivery note is missing or incomplete, we will not be responsible for any resulting delays in processing and payment.

(5) The risk of accidental loss and accidental deterioration of the item shall transfer to us upon handover at the place of performance. If an acceptance is agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply accordingly on acceptance. Handover or acceptance shall be deemed to have taken place if we are in default of acceptance.

(6) The statutory regulations shall apply for the occurrence of default of acceptance on our part. However, the Seller must also expressly offer us its service if a definite or determinable calendar time has been agreed for an action or cooperation on our part (such as provision of material). If we are in default of acceptance, the Seller may demand reimbursement of its additional expenses in accordance with the statutory provisions (Section 304 BGB). If the contract concerns a non-fungible item to be manufactured by the Seller (individual production), the Seller shall only be entitled to further rights if we have undertaken to cooperate and are responsible for the lack of cooperation.

 

5  Prices and payment terms

(1) The price stated in the order shall be binding. Unless otherwise agreed, all prices are exclusive of statutory VAT.

(2) Unless otherwise agreed in individual cases, the price includes all services and ancillary services of the Seller (e.g., assembly, installation) as well as all ancillary costs (e.g., proper packaging and transport costs, including any transport and liability insurance).

(3) Unless otherwise agreed in writing, the agreed price shall be payable within 30 calendar days following full delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the Seller shall grant us a 3% discount on the net amount of the invoice. In the case of a bank transfer, payment shall be deemed to have been made on time if our transfer order is received by our bank before the end of the payment period. We shall not be responsible for delays by the banks involved in the payment transaction.

(4) We do not owe any past-due interest. The statutory regulations shall apply for late payment.

(5) We shall be entitled to set-off and retention rights as well as to object to an unfulfilled contract to the extent permitted by law. In particular, we shall be entitled to withhold due payments for as long as we are still entitled to claims against the Seller due to incomplete or defective services.

(6) The Seller shall have a right of set-off or retention only due to legally established or undisputed counterclaims.

 

6  Force majeure

In cases of force majeure, strikes or lockouts, we may request performance at a later date without the Seller deriving any claims from this. In the event that the circumstance persists for more than four weeks, we are also entitled to withdraw from the contract without the Seller deriving any claims against us from this. If performance of the contract in such cases is unreasonable for the Seller, it may withdraw from the contract.

 

7 Confidentiality and retention of title

(1) We shall retain ownership and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents are to be used exclusively for the contractual service and shall be returned to us after completion of the contract. The documents must be kept secret from third parties, even after the contract has ended. The duty of confidentiality expires only if, and to the extent that, the knowledge contained in the documents provided has become generally known.

(2) The above provision shall apply mutatis mutandis to substances and materials (such as software, finished and semi-finished products) as well as to tools, templates, samples and other items that we provide to the Seller for production. Such items – as long as they have not been processed – are to be stored separately at the expense of the Seller and insured against destruction and loss to an appropriate extent.

(3) Any processing, mixing or combination (further processing) by the Seller of items provided will be carried out on our behalf. The same applies in the case of further processing by us of the delivered goods in such a way that we are deemed the manufacturer and acquire ownership of the product in accordance with the statutory provisions at the latest upon said further processing.

(4) The transfer of ownership of the goods to us must be unconditional and without regard to the payment of the price. However, if, in an individual case, we accept an offer from the Seller for transfer of ownership conditional on payment of the purchase price, the Seller’s retention of title shall expire at the latest upon payment of the purchase price for the delivered goods. In the ordinary course of business, we shall be entitled to resell the goods, with the advance assignment of the due receivables, even before payment of the purchase price (subsidiary application of simple retention of title and retention of title extended to resale). This shall exclude all other forms of retention of title, in particular the extended or forwarded retention of title, and retention of title extended for further processing.

 

8 Defective delivery

(1) Unless otherwise specified below, the statutory provisions shall apply to our rights in the event of material defects and defects of title of the goods (including incorrect and incomplete deliveries, as well as improper assembly or defective assembly, and inadequate user manuals or operating instructions) and in the event of other breaches of duty of the Seller.

(2) In accordance with the statutory provisions, the Seller shall be responsible in particular for the goods having the agreed quality at the time of transfer of risk to us. In any case, the product descriptions that are the object of the respective contract or have been included in the contract in the same way as these GTCPs – in particular by their being named or referred to in our order – shall be deemed to be an agreement on quality. In this case, it is irrelevant whether the product description comes from us, the Seller or the manufacturer.

(3) We shall not be obligated to examine the goods or to make special inquiries about any defects upon conclusion of the contract. In partial deviation from Section 442 (1) sentence 2 BGB, we shall therefore be entitled to claims for defects without restriction, even if the defect remained unknown to us at the time of conclusion of the contract as a result of gross negligence.

(4) The statutory regulations (Sections 377, 381 HGB [German Commercial Code]) shall apply to the commercial duty of inspection and notification subject to the following conditions: Our duty of inspection shall be limited to defects that come to light during our external inspection of incoming goods including the delivery documents (e.g., transport damage, incorrect or incomplete delivery) or that are identifiable by random sampling during our quality control. Provided an acceptance is agreed, there is no obligation to investigate. It shall also depend on the extent to which an investigation is feasible, taking into account the circumstances of the individual case according to the ordinary course of business. Our obligation to give notice of defects discovered later shall remain unaffected. Without prejudice to our duty to investigate, our complaint (notification of defects) shall be deemed to have been sent immediately and in good time if sent within 5 working days of discovery or, in the case of obvious defects, of delivery.

(5) Rectification shall also include the removal of the defective goods and reinstallation, provided that the goods have been installed in another object or attached to another object in accordance with their nature and intended use. Our statutory right to reimbursement of corresponding expenses shall remain unaffected. The Seller shall bear the necessary expenses of inspection and rectification, even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request for rectification of defects shall remain unaffected; in this respect, however, we shall only be liable if we have recognised – or failed to recognise due to gross negligence – that no defect existed.

(6) Without prejudice to our statutory rights and the provisions in (5) above, the following shall apply: Should the Seller fail to fulfil its obligation to remedy the defect – at our discretion by remedying the defect (repair) or by delivering a defect-free item (replacement delivery) – within a reasonable period set by us, we may remedy the defect ourselves and demand reimbursement from the Seller of the expenses required for this or a corresponding advance payment. Should the Seller’s rectification have failed or be unreasonable for us (e.g., due to particular urgency, danger to operational safety or imminent occurrence of disproportionate damage), no deadline shall be required; we will inform the Seller immediately of such circumstances, if possible in advance.

(7) In addition, in accordance with the statutory provisions, we shall be entitled to reduce the purchase price or withdraw from the contract in the event of a material defect or defect of title. In addition, in accordance with the statutory provisions, we shall be entitled to compensation for damages and expenses.

 

9 Supplier recourse

(1) In addition to the claims for defects, we shall be entitled to our statutory claims of recourse within a supply chain (supplier recourse in accordance with Sections 445a, 445b, 478 BGB) without restriction. In particular, we shall be entitled to demand from the Seller exactly the type of rectification (repair or replacement delivery) that we owe to our customer in the individual case. This shall not restrict our statutory right of choice (Section 439 (1) BGB).

(2) Before we acknowledge or fulfil a claim for defects asserted by our customer (including reimbursement of expenses in accordance with Sections 445a (1), 439 (2 and 3) BGB), we shall notify the Seller and, with a brief explanation of the situation, ask for a written statement. If a substantiated statement is not made within a reasonable period of time, and if no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the Seller shall be responsible for proof to the contrary.

(3) Our claims under supplier recourse shall apply even when the defective goods have been further processed by us or another contractor, such as by installation in another product.

 

10 Producer liability

(1) If the Seller is responsible for damage to a product, it shall indemnify us against third-party claims to the extent that the cause lies within the Seller’s sphere of control and organisation, and the Seller is personally liable in relation to third parties.

(2) Within the scope of its indemnification obligation, the Seller must reimburse expenses pursuant to Sections 683, 670 BGB that result from, or in connection with, a third-party claim, including recalls undertaken by us. We shall inform the Seller – to the extent possible and reasonable – about the content and scope of recall measures and give the Seller the opportunity to issue a statement. Further statutory claims shall remain unaffected.

(3) The Seller shall take out and maintain product liability insurance with a lump sum coverage of at least EUR 5 million per case of personal/material damage.

 

11 Limitation

(1) Unless otherwise specified below, the reciprocal claims of the contracting parties shall be time-limited in accordance with the statutory provisions.

(2) By way of derogation from Section 438 (1) 3 BGB, the general limitation period for claims for defects is 3 years from the transfer of risk. If acceptance has been agreed, the limitation period shall begin with the acceptance. The 3-year limitation period shall also apply, mutatis mutandis, to claims arising from defects of title, whereby the statutory limitation period for third-party claims for restitution in rem (Section 438 (1) 1 BGB) shall remain unaffected; furthermore, claims arising from defects of title shall in no case be time-barred for as long as the third party can still assert the right against us – in particular due to the absence of a limitation period.

(3) The limitation periods under sale-of-goods law, including the aforementioned extension, shall apply – to the extent permitted by law – to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (Sections 195, 199 BGB) shall apply, unless the application of the limitation periods under sale-of-goods law leads to a longer limitation period in individual cases.

 

12 Applicable law and place of jurisdiction

(1) The law of the Federal Republic of Germany shall apply to these GTCPs and the contractual relationship between us and the Seller to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) If the Seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – and international – place of jurisdiction for all disputes arising from the contractual relationship shall be our place of business in Döbeln. The same shall apply if the seller is an entrepreneur within the meaning of Section 14 BGB. In all cases, however, we will also be entitled to bring an action at the place of performance for the delivery obligation in accordance with these GTCPs or an overriding individual agreement, or at the general place of jurisdiction of the Seller. Overriding statutory provisions, in particular regarding exclusive competences, shall remain unaffected.