1. Scope of Application/General Information
The following Terms and Conditions of Purchase apply to all orders, transactions and contracts. Any amendments or terms and conditions of sale which differ from the following Terms and Conditions of Purchase are not binding, even if they have not been expressly opposed. They shall only apply if we confirm them in writing. The acceptance of deliveries and services or payment for the same shall not constitute consent to the terms and conditions of sale of the Contractor. Only transactions and orders which have been placed in writing and signed are valid. Verbal agreements are only binding for us if they have been confirmed in writing.
2. Offer, Order and Order Acknowledgement (OA)
2.1 Offers shall be submitted at no cost to us and on a non-binding basis.
2.2 We reserve ownership rights and copyrights to illustrations, diagrams, drawings, calculations, files, software and other documents.
2.3 The content, type, volume and quality of deliveries and services shall be governed exclusively by our order and the information on the technical drawing. All the technical requirements serve to clearly and completely formulate quality characteristics and are based solely on the technical purchasing specification and/or the relevant German or European industrial standards, guidelines, approvals and codes of practice. Any amendments to materials, components, manufacturing processes, etc. are only permitted after obtaining express written consent.
2.4 Orders, transactions and delivery call-offs and any other legally relevant declarations or notifications which have to be submitted to the Customer by the Contractor after conclusion of the contract (e.g. fixing of time limits, warnings, declaration of withdrawal), must be in writing in order to be valid. A written contract or the Customer’s written confirmation shall be authoritative for any individual agreements reached with the Contractor in individual cases (including collateral agreements, amendments and modifications).
2.5 If the order acknowledgement differs from the order, the Customer shall only be bound if it has agreed to the deviation in writing. The Customer may waive the Contractor’s written order acknowledgement if an agreement has been reached thereon. This only applies if the Contractor does not deviate from the details contained in the order pertaining to price, delivery quantity and delivery date. In this case, the modified order acknowledgement shall be effected by the Contractor within three working days after receipt of the order. The details contained in the modified order acknowledgement shall be deemed as accepted by the Customer if the Customer does not oppose them within five working days.
2.6 Unless a different agreement has been reached in the text of the order, the Contractor shall supply a complete item, system or machine that contains all the parts required for faultless operation in compliance with the guaranteed data, even if spare parts required for this are not listed.
2.7 All details specified in the Contractor’s order, drawings and parts lists and all details specified in the Contractor’s offers, brochures, product descriptions and catalogues shall be deemed warranted. In particular, faithfulness to deadlines and compliance with delivery dates shall be deemed warranted.
3.1 The Contractor shall set up and maintain a documented quality assurance system of a suitable nature and scope that conforms to the latest state of the art. The Contractor shall create records, especially concerning its quality inspections, and make them available to the Customer upon request.
3.2 The Contractor hereby consents to quality audits to assess the efficacy of its quality assurance system by the Customer or a third party commissioned by the Customer.
4. Delivery time
4.1 The punctuality of deliveries shall be determined by the date on which the goods reach the receiving location specified by the Customer; in cases where goods have to be installed or assembled, or in the case of services, punctuality of delivery shall be determined by their acceptance.
4.2 In the event of identifiable delays with regard to a delivery or service, the Customer shall be notified without delay and the Customer’s decision shall be obtained.
4.3 If the agreed dates are not adhered to due to circumstances for which the Contractor is responsible, the Customer shall be entitled, at its own discretion and without prejudice to any other legal claims, after setting a deadline, to either withdraw from the contract, purchase a replacement from a third party or demand compensation due to non-performance. Any additional costs caused by late deliveries or services shall be reimbursed by the Contractor. Acceptance of a late delivery or service does not constitute a waiver of compensation claims.
4.4 If deadlines are repeatedly not met, the Customer shall be entitled to withdraw from the contract even if the Contractor is not responsible for the delay. The same applies to all cases of industrial action or operational disruptions at the Contractor's premises or suspension of payments by the Contractor or insolvency proceedings with respect to the Contractor.
4.5 The Customer shall be entitled to send back deliveries effected before the agreed delivery date, incomplete deliveries or non-approved partial deliveries and to charge the Contractor for the additional costs incurred for this.
5. Contractual penalty
If the agreed delivery dates are not complied with for reasons for which the Contractor is responsible, the Contractor shall pay a contractual penalty of 0.5% of the purchase price for each commenced week of delay, but not more than 5% in total. If the agreed date is deferred for reasons for which the Customer is demonstrably responsible, the effective date for the contractual penalty shall be postponed accordingly, if unavoidable, according to an agreement to be reached. In the event that the delivery delay for which the Contractor is responsible lasts more than ten weeks, the Contractor shall pay interest at 1% above the base rate applicable at the time, but at least 5%, on payments furnished by the Customer until then.
6. Embargo list/Intrastat
6.1 The Contractor shall state in the order acknowledgement and the invoice whether the goods to be supplied are included in the current export list, Annex AL to the German Foreign Trade and Payments Ordinance (AWV), on the respective date.
6.2 The Contractor shall specify the foreign trade number for Intrastat on the invoice.
7. Safety regulations/CE mark, etc.
The Contractor shall comply with the regulations applicable at the place of use of the delivery, especially with respect to accident prevention, ordinance on hazardous substances, environmental protection, TÜV (German inspection and product certification organisation), fire protection regulations, machine safety, and the relevant directives and standards of the authorities and trade associations. The Contractor shall state whether the goods to be delivered by it require a manufacturer's declaration or a declaration of conformity pursuant to the EC Machinery Directive and shall present this/these upon delivery if necessary. In addition, the Contractor shall supply instructions relating to storage, installation/assembly, maintenance and operation together with the delivery free of charge – also for use by end customers.
8. Passing of risk/Dispatch
8.1 Risk passes upon arrival of the consignment at the receiving location precisely designated by the Customer. In the case of deliveries involving installation or assembly, or in the case of services, the risk shall pass upon acceptance.
8.2 The shipping costs shall always be borne by the Contractor. If prices are ex works or ex the Contractor's sales depot, the goods shall be sent at the lowest cost in each case unless the Customer has stipulated a specific mode of transport. Any additional costs caused by non-compliance with shipping instructions shall be borne by the Contractor. If prices are quoted with free delivery, the Customer may also specify the mode of transport. Additional costs for any accelerated transportation which is necessary to comply with the delivery date shall be borne by the Contractor.
8.3 A packing note or delivery note stating the contents and the full order code (order number) shall be enclosed with each delivery. Differing articles shall be packed and labelled separately. Dispatch shall be notified immediately with the same details.
8.4 Deliveries involving cross-border goods transportation shall be delivered to the Customer duty unpaid (as authorised consignee in the Community Transit procedure). The Customer shall be notified of these deliveries in good time for the purpose of proper customs clearance. In particular, all relevant transport data shall be communicated in good time before the goods arrive, and the documents required for customs clearance, such as consignment note, commercial invoice, packing list, etc., shall be made available in good time.
8.5 If goods are to be supplied direct to clients of the Customer from the Contractor’s premises, the Customer must always be notified thereof prior to dispatch. At the latest on the day of dispatch, all relevant transport data, such as mode of transport, type of packaging, marking, gross/net weight and the customs invoices, packing lists, etc. included with the consignment, shall be communicated.
8.6 The German Packaging Ordinance (VerpackV) shall apply.
8.7 In the case of deliveries of hazardous goods, the Contractor shall be responsible for compliance with the applicable legal regulations until the goods have been fully unloaded.
8.8 Quality assurance and inspection/test documents (inspection/test and measurement reports) as well as inspection/test and factory certificates and safety data sheets which are required and requested in the order text shall be included with the delivery free of charge.
The order codes shall be specified in the invoices (Order No., Item No., Article No., Supplier No.). For as long as these details are missing, invoices are not payable. Invoices shall always be sent in duplicate – the invoice copy shall be marked as the duplicate. Invoices should preferably be sent as a PDF document to the email address email@example.com. The purchase invoice shall contain all the information required by the applicable law pursuant to section 14 (4) in conjunction with section 14a (5) of the German VAT Act (UStG). Manufacturers of electrical and electronic equipment must additionally state on their business letters – and therefore also on invoices – their registration number required according to the German Electrical Equipment Act (ElektroG).
10. Prices and payments
10.1 The price specified by the Customer is binding and applies franco domicile, including packaging and duty paid (DDP according to Incoterms 2010), unless otherwise agreed between the parties. Prices are always fixed prices and binding. Prices which are not expressly listed in our order must be submitted for approval in good time prior to delivery.
10.2 Payments shall be furnished, subject to an inspection of the invoice, within 10 days minus 2% discount or after 30 days net unless otherwise agreed.
10.3 The payment period for the deduction of discount shall commence as soon as the delivery or service has been rendered on time and in full and the properly issued invoice has been received. The deduction of discount is also permissible if the Customer offsets or withholds payments to a reasonable amount due to defects; the payment period shall commence after any defects have remedied in full.
10.4 The Customer shall be entitled to assert rights of offset and retention and the plea of non-fulfilled contract to the extent stipulated by law. The Customer shall especially be entitled to withhold any due payments for as long as it is still entitled to claims against the Contractor arising from incomplete or defective goods or services. The Contractor only has a right of offset or retention on account of counterclaims which have been finally established in law or are undisputed.
11. Insolvency, suspension of payments
If it comes to our notice that an application has been filed for the institution of insolvency proceedings with respect to the Contractor's assets, or proceedings have already been instituted, the contract may be unilaterally terminated by the Customer. The same applies if the Contractor suspends payments, encounters financial difficulties or seeks an out-of-court settlement, or if measures are implemented for voluntary or compulsory liquidation. The Customer shall still be entitled to the aforementioned right if the contract has been honoured by one or both of the contracting parties in whole or in part, provided the Contractor's warranty obligation still applies.
12.1 The warranty period of 24 months shall commence upon the passing of risk. In the case of deliveries to locations where the Customer carries out orders for clients outside its factories or workshops, the warranty period shall commence upon acceptance by the Customer's client. It shall end at the latest 36 months after the passing of risk.
12.2 If defects are detected prior to or upon the passing of risk or occur during the warranty period, the Contractor shall, at its own expense and at the Customer's discretion, either remedy the defects or render a new delivery or service which is free from defects. This also applies to deliveries where the inspection is restricted to spot checks. The Customer shall make a choice at its reasonable discretion.
12.3 If the Contractor does not remedy the defects or supply a replacement delivery or service within a period of time set by the Customer, the Customer is then entitled to withdraw from the contract in whole or in part without compensation or to demand a reduction of the purchase price or to itself remedy defects or reperform the deliveries or services at the expense of the Contractor, or arrange for such to be done, or to claim damages in lieu of performance. The same applies if the Contractor declares that it is unable to remedy the defects, supply a replacement delivery or service within an appropriate time period.
12.4 For parts of the delivery which are serviced or repaired within the limitation period for the Customer's warranty claims, the limitation period shall restart from the date when the Contractor has settled the claims to subsequent performance/replacement delivery in full.
12.5 If the Customer incurs costs due to the defective delivery of the contractual item, especially costs of transport, tolls, labour or materials or costs for a receiving inspection that exceeds the usual scope, the Contractor shall bear these costs. The same applies with regard to the cost of deinstalling the defective goods and installing a faultless product. The Contractor shall also bear these costs irrespective of whether there is any fault or negligence on its part with regard to the defectiveness of the product.
12.6 Acceptance shall be subject to accuracy and suitability/fitness for use. The Contractor shall be liable for defects in the goods or service for the duration of the warranty period, regardless of whether they are recognisable immediately or only become apparent later. If defective goods are delivered or defective services are rendered repeatedly, the Customer shall be entitled to withdraw from the contract. If a general inspection becomes necessary that goes beyond the standard receiving inspection due to defective delivery, the Contractor shall bear the costs involved.
12.7 The deliveries shall be inspected for defects within three weeks according to the Customer’s standard practices, and any defects shall be notified without delay.
12.8 The aforementioned claims shall become statute-barred one year from notification of the defect. The limitation of the Customer’s claims shall be interrupted for as long as the Contractor has not finally rejected the Customer's claims after the timely notification of defects.
12.9 Other legal claims, especially to the reimbursement of processing or finishing costs expended to no avail, shall not be affected.
12.10 The aforementioned provisions shall also apply accordingly to services relating to the rectification of defects.
12.11 The Contractor shall bear the cost and risk of sending back defective delivery items.
12.12 The Contractor shall guarantee freedom from third-party industrial property rights and shall release the Customer from any liability in the event of an infringement.
12.13 In the event of a claim being asserted by the end customer under product liability law due to a defective product of the Contractor, the Contractor shall in this respect release the Customer from liability.
12.14 The liability of the Contractor also includes any consequential damage incurred by the Customer due to the defectiveness of the delivered product.
13. Subcontracting of orders to third parties
The subcontracting of orders to third parties without the Customer’s written consent is not permissible and shall entitle the Customer to withdraw from the contract in whole or in part and demand compensation.
14. Provision of materials by the Customer
14.1 Materials or goods provided by the Customer shall remain the Customer's property and shall be stored separately, labelled and managed free of charge. They may only be used for the Customer’s orders. Compensation shall be paid by the Contractor in the event of a reduction in value or damage. This also applies to the invoiced provision of materials connected to an order.
14.2 The processing, conversion or finishing of the material shall be carried out for the Customer. The Customer shall become the direct owner of the new item. Should this not be possible for legal reasons, the Customer and the Contractor are agreed that the Customer shall become the owner of the new item at every time of processing or finishing. The Contractor shall hold the new item in safe custody for the Customer free of charge with the due care of a prudent businessman.
15. Tools, Samples, Confidentiality, Patents & Industrial property rights
All manufacturing resources, documents, prototypes, samples and manufacturing know-how disclosed to the Contractor shall be kept secret and must neither be utilised, duplicated, transmitted, sold or pledged nor made accessible to third parties, other than for agreed or contractual purposes. Any tools, samples, models, sections, semi-finished/finished goods, drawings, standards, printed matter, templates or software provided by the Customer as well as any items produced according to these must neither be forwarded to third parties nor used for purposes other than the contractual purpose without the Customer’s written consent. They shall be protected against unauthorised inspection or use. Subject to other rights, the Customer may demand their surrender if the Contractor breaches these obligations. The Contractor shall not make any information it obtains from the Customer available to third parties unless it is generally known or has otherwise become known to it legitimately. The Contractor shall be liable, with respect to deliveries and services, for the infringement of patents and industrial property rights, in such a way that it shall support the Customer in any out-of-court or in-court dispute with the patent holder or holder of the industrial property right, shall reimburse the Customer for all the costs incurred and release it from any awarded compensation claims of the patent holder or holder of the industrial property right.
16. Assignment of accounts receivable
The assignment of an account receivable is allowed only with written approval by the Customer unless otherwise stipulated in section 354a of the German Commercial Code (HGB).
17. Execution of work/Insurance cover
When carrying out contractual work at the factory site or at the premises of third parties, the provisions of the respective company regulations shall be adhered to and the existing regulations for entering and leaving the factory facilities shall be observed. Liability for accidents at the factory site is excluded unless intent or gross negligence is proven. The Contractor shall provide sufficient insurance cover for the work to be carried out.
Industrial disputes, operation disruptions and cases of force majeure shall release the Customer from the obligation of acceptance if they result in a reduction in the Customer's requirements.
19. Insurance cover and product liability
19.1 The Contractor is liable within the scope of the contractual relationship for any damage for which it is responsible up to the maximum amount.
19.2 The liability for personal injury is governed by the statutory provisions.
19.3 The Contractor shall take out third-party liability insurance with a worldwide cover of EUR 10 million for personal injury, damage to property and pecuniary losses resulting from the contractual items which it delivers to the Customer. This must also include such damage whose cause is attributable to the contractual items supplied by the Contractor and reworked/reprocessed or blended by the Customer without recognising an obvious or hidden defect (consequential damage). The Contractor shall demonstrate the existence of corresponding third-party liability insurance upon conclusion of the contract by presenting confirmation from the insurer, in which the sums insured, excesses (deductibles), term of the current insurance period, insured products/items, insured risks, insured countries and the fact that the insurance premium payable for the current insurance period has been duly paid are confirmed. Even if the insurance does not cover the damage incurred by the Customer or third parties in full, the liability of the Contractor vis-à-vis the Customer shall remain in full. On expiry of the insurance policy, the Contractor shall present the new third party liability insurance policy to the Customer without delay and without being prompted.
20. REACH clause
The Contractor must fulfil all specifications and measures resulting from the REACH Regulation for all materials, preparations and products supplied/provided to Customer.
21. Minimum Wage Act (MiLoG)
The Contractor undertakes to comply with the Act Regulating a General Minimum Wage (section 1 of the German Minimum Wage Act) and, in particular, the release from all claims arising from a violation thereof. This also applies to any subcontractors used.
22. Code of Conduct
The Contractor recognises the code of conduct for AVANCO/ INOMETA business partners and undertakes to comply with this guideline, which can be accessed on the homepage www.inometa.de. We reserve the right to review compliance with these standards and to take appropriate measures in the event of non-compliance, which may result in the contractual relationship being terminated. We shall obligate our suppliers to also communicate these requirements within their supply chain.
23. Health protection
The Contractor shall ensure occupational safety and health protection at the workplace within the scope of the national regulations as well as continuous further development for improving the working environment.
24. Place of performance, place of jurisdiction, applicable law
24.1 The place of performance for deliveries and services is the receiving location specified by the Customer; in the case of payments, it is the Customer’s registered office.
24.2 The place of jurisdiction is Herford.
24.3 German law shall apply to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
25. Final provision
25.1 Should one of the provisions of the contract or of these Terms and Conditions be or become invalid, the validity of the contract or the remainder of the Terms and Conditions shall not be affected thereby. In this case, the parties shall be obliged to replace the invalid provision with a provision that is equivalent to it in terms of the economic result, if this is legally possible.
25.2 Any amendments to this agreement must be in writing. The same applies to the amendment of this written form requirement; this shall also take place in writing.
Latest version: 01. September 2017