Terms of purchase
Terms of purchase
(as revised on 01.05.2002) (only applicable to business with companies, public corporations, or special trusts under public law as defined in German Civil Code s. 310 (1) Clause 1
These terms of purchase for suppliers and service providers (referred to hereinafter as “Supplier”) shall apply until further notice to each and every order, including future ones. Any divergent agreement must be confirmed by us in writing. Applying Supplier’s divergent terms is herewith expressly refuted. On performance of the order at the latest, Supplier acknowledges these terms, also for later orders.
a) Unless otherwise expressly agreed in any individual case, and unless otherwise provided in these Terms of Purchase, the Incoterms as revised at the time shall also apply to clauses normally used in trading.
b) In the event of any part of these Terms being legally ineffective, the validity of the remaining provisions shall remain unaffected.
c) Personal data shall be processed and saved by computer to ensure the proper handling of business transactions. Supplier is herewith notified to this effect as defined in German Data Protection Act ss. 26 (1), 341 and 434.
a) In its quotation, Supplier shall keep exactly to the request for a quote, and in the event of any deviations expressly draw attention to them.
b) Quotations are to be made free of charge, and shall not create any obligation on the part of the party requesting a quote.
c) Supplier shall be bound by the content of its quotation for 24 working days after we have received it, and for 6 months in the case of fixed assets.
a) The agreed prices are fixed prices and are free user’s location, including packaging and freight costs. If a price “ex works” or “ex warehouse” is agreed, then we shall only assume the cheapest freight costs. All costs incurred before the goods are handed over to the freight carrier, including lading and carriage, shall be borne by Supplier. In the case of consignments sent by air or sea freight, FOB shall apply accordingly. The type of pricing shall not affect the agreement on place of performance.
b) The prices include all expenses incurred in connection with the deliveries and services to be performed by Supplier.
c) Prices which are higher than those given in the order shall only apply if we have expressly acknowledged them in writing before the delivery or service.
d) If we are forced to place orders without having reached an agreement on the price beforehand, then we reserve the right to acknowledge the price subsequently given or charged by Supplier.
e) If Supplier reduces its prices and improves its conditions between the date of order and the date of delivery, then the prices and conditions in force on the date of delivery shall apply.
a) Orders and agreements are only binding provided we have placed or confirmed them in writing. Statements by fax or telex, etc. must be confirmed in writing in order to become effective. Verbal alterations to an order shall only take effect if they have been confirmed in writing by fax or telex by a person authorised to take decisions at our business.
b) Supplier is under obligation to immediately confirm each order and alteration to an order in writing. If we do not receive confirmation within 2 weeks of our placing or confirming the order, then we shall be entitled to withdraw from the deal.
c) If we are prevented from accepting delivery of and using the supplies and services due to force majeure (incl. operational or transport hitches, government or court orders, fire, revolt, war, strikes, lock-outs and other extraordinary events) or if we have serious problems accepting delivery of or using the supplies for the same reason, then at our option we may rescind the contract in whole or in part, or demand that the delivery be made or the service be rendered at some later date, without this creating any manner of claims on Supplier’s part.
d) Supplier must himself discharge the assignment placed. Calling in sub-contractors or having supplies delivered or services rendered by third parties, either in whole or in part, must be approved by us in writing.
5. Deliveries & Services
a) The delivery period commences on the date of order. As soon as Supplier has reason to suspect that he cannot perform his contractual obligations in full or on time, he must notify us to this effect without delay, giving the reasons and the anticipated duration of the delay. If Supplier fails to make such notification, then he may not refer us to the obstacle
b) If Supplier fails to perform within the agreed delivery period, then he shall be liable in accordance with statutory regulations. Any contractual penalty which has been agreed in the event of late deliveries or services shall remain unaffected. Supplier waives reserving its rights on acceptance of the delivery or services pursuant to German Civil Code s. 341. Accepting delivery of late supplies or services shall not imply any waiver of compensation claims.
c) We reserve the right to accept early services, deliveries and part deliveries. In the event of part deliveries which we do not accept, the transport costs for any follow-up deliveries shall be borne in full by Supplier.
d) We reserve the right to acknowledge excess or short deliveries or services.
e) In the event of repeated failure to meet a deadline, we shall be entitled to rescind the contract, even if Supplier is not responsible for the delay.
f) For numbers of items, and weights and measures, the figures we ascertain on checking the in-coming goods shall be decisive, unless Supplier proves that the quantity he has calculated was determined accurately using a generally recognised method.
6. Dispatch, Passing of Risk
a) A delivery note must be included with each delivery. Delivery notes must state our order number, and details of the contents giving type and quantity.
b) Supplier must send a detailed notice of dispatch by fax or telex for every single consignment on the day of dispatch, separate from the goods and the invoice.
c) The invoice may not be enclosed with the consignment.
d) Supplier shall be liable for ensuring the suitability of the packaging used, and for ensuring that all deliveries subject to special labelling regulations (e.g. in accordance with GGVS [rules on transporting hazardous goods by road] ) are properly labelled. The labelling must also be given in the confirmation of order and in all dispatch papers.
e) Dispatches must be made in exact compliance with our respective delivery and consignment rules, including the postal address and the delivery address. All materials can only be accepted on Monday – Thursday between 8 a.m. – 4 p.m. (except during the lunch-break from 12 noon – 1 p.m.) and on Friday between 8 a.m. – 11 a.m. Closure of the business for holidays and leave taken to make up long weekends must be taken into consideration when deliveries are made.
f) Supplier shall be liable for all damage, and shall assume any costs incurred due to his failure to comply with these rules. He is also responsible for ensuring that these dispatch regulations are heeded by his own suppliers.
g) All consignments which cannot be accepted due to non-compliance with these regulations shall be stored at Supplier’s cost and risk. We are entitled to ascertain the content and condition of such consignments. Tools and equipment may not be loaded along with the items being delivered.
h) The passing of risk shall be governed by statutory regulations.
7. Proof of Origin
a) Supplier must include all the necessary particulars with any proof of origin which we demand (e.g. suppliers’ statements, certificates on the movement of goods as defined in the EEC/EFTA provisions on origin), and must immediately provide same duly signed.
b) Even before the order is placed, Supplier shall inform us accordingly if no EEC/EFTA certificate of origin can be issued. Notification at any later date, e.g. not until confirmation of the order, shall grant us entitlement to cancel the order.
8. Quality Assurance
a) Our quality assurance regulation is based on ISO 9001, and constitutes an integral part of our purchase agreements. Supplier shall be assessed accordingly.
b) Supplier must include certification of the inspection of out-going goods with every delivery.
c) Insofar as it has been agreed that checks on in-coming goods are to be made using the random sample method, and if the agreed limits for quality standards are exceeded, then we shall be entitled to turn down the entire delivery or to make a full check at Supplier’s expense. On returning defective goods, we shall be entitled to charge Supplier the purchase price, plus a lump-sum of 5% or a maximum of € 125 per return delivery.
9. Compliance and Code of Conduct
a) The Supplier shall comply with all relevant statutory regulations as well as international standards for ethical behaviour. Reference is made in particular to the adherence to antitrust law and the regulations on fighting corruption. Offering gifts to BLV employees is considered by BLV as a violation of contractual or pre-contractual obligations.
Within its organization, the supplier is obliged to respect the basic rights of its employees and to procure a safe work environment. The supplier shall observe the prohibition of child labour according to the Declaration of the International Labour Organization on basic labour principles.
b) BLV may withdraw from or terminate the contract if the supplier does not fulfill its obligations as per Paragraph a).
10. Guarantee, Complaints, Liability
a) Supplier guarantees that the object of the delivery or services has no defects impairing its value or suitability, meets the requirements given in the order, has any other warranted characteristics, complies with recognised rules of technology, the latest government regulations, and the safety recommendations issued by the German bodies and associations responsible (e.g. VDE, VDI, DIN), and complies with the law on equipment safety and the technical safety and accident prevention rules in force at the time. Supplies must comply with provisions on environment protection, in particular the “ordinance on hazardous working materials”.
b) If the object of the delivery does not match what was agreed, and in particular if it does not comply with para. a) as stated above, then we may – at our own option – demand that the defect be remedied or that an item in perfect condition be delivered. If we demand that the defect be remedied, and if attempts to make subsequent improvements fail twice, then we may rescind the contract and demand compensation. This shall not apply to defects or damage to the delivered object caused by regular wear and tear, or due to deliberate damage or improper use on our part. For services such as assembly, maintenance, etc., the above provisions shall apply mutatis mutandis.
c) Unless otherwise agreed, the guarantee obligation shall last for 8,800 hours of operation after the item has been put into operation or use. Whatever the case, there must be proof that the entire system worked perfectly beforehand. The guarantee obligation shall terminate at the latest 2 years after delivery.
d) Supplier’s guarantee also covers the parts manufactured by its own suppliers.
e) In the event of a complaint, the guarantee obligation shall be prolonged by the time lapsing between the complaint being lodged and the defect being remedied. If the item delivered is either completely or partly renewed, then the guarantee period for the renewed parts shall commence anew.
f) The parts which have been complained about under the guarantee shall remain at our disposal until they are replaced, and shall not revert to Supplier’s ownership until the substitute is provided.
g) In urgent cases, or if Supplier defaults in remedying the defect, we may remedy the defect ourselves or have it remedied by a third party, both at Supplier’s expense.
h) Our acceptance of deliveries and services shall not affect Supplier’s guarantee obligation.
i) Our approval of drawings, calculations and other technical records shall not affect Supplier’s sole responsibility in respect of the delivery. Unless Supplier contradicts in writing, this shall also apply to our suggestions and recommendations, and to alterations discussed by us with Supplier.
j) The contracting parties shall be jointly liable for the fault of all persons assisting them in performing their obligations, to the same extent as if it were their own fault: sub-suppliers shall be deemed persons assisting with the performance of obligations (German Civil Code ss. 276, 278). Liability for deliberate fault on the part of persons assisting with the performance of obligations is excluded.
k) In all other respects, Supplier shall be liable in accordance with statutory regulations, including Product Liability Law, and shall indemnify us to this extent against third-party claims.
11. Rescission, Right of Retention
a) We are entitled to rescind the contract if Supplier fails to meet a binding delivery deadline in spite of being granted a reasonable period of grace. Our option to repudiate the contract or to demand a reduction in the price, and any demand for compensation such as we may have, shall remain unaffected.
b) In the event of notice being given, Supplier shall not have any right of retention in respect of materials, plans or other records which it has been allowed to have. In the event of premature termination of the contract for reasons for which Supplier is responsible, then Supplier shall not have any right of retention in respect of materials, plans or other records which it has been allowed to have.
a) If tests of the object of delivery are planned, then Supplier shall pay the material costs and his own staff costs incurred in this context. We shall pay our own staff costs incurred in this context.
b) Supplier must bindingly notify us about the goods being ready for testing at least one week in advance, and reach an agreement with us on a testing date. If the object of delivery is not provided on this date, then our staff costs in connection with the testing shall be assumed by Supplier.
c) If, as a result of defects being established, repeated or additional testing is required, then Supplier shall pay all the material and staff costs thus incurred. Supplier shall pay the material and staff costs incurred for evidence of the raw materials used.
d) Any tests carried out by us shall not release Supplier from his guarantee or liability.
a) A transport insurance shall be effected in accordance with a separate agreement.
b) For damage caused by Supplier, its staff or those working to its instructions, due to services rendered, work performed or items delivered, Supplier shall effect adequate liability insurance and product liability insurance at its own expense. On request, we must be furnished with proof of the coverage per claim.
c) Concluding a special assembly insurance policy apart from the liability insurance pursuant to item 12 b) above shall require that an agreement be reached in each case between ourselves and Supplier.
d) Machinery, equipment, etc. which we lend out is insured by us against the normal risks. Any liability beyond this on our part for the destruction or damage of the machinery, equipment, etc. which has been lent out is excluded, except in cases of intent or gross negligence.
14. Invoices, Payments
a) Invoices in duplicate must be sent to us separately to the address given in each case. They must give our order number.
b) We shall make payment after receipt of the goods and after receipt of the invoice, in accordance with the detailed terms agreed.
c) If a delivery or service is defective or incomplete, then we shall be entitled to retain a proportionate amount of the payment until such time as proper performance is effected, without compensation.
d) Payment shall not indicate any acknowledgement that the delivery or service is in accordance with the contract, and shall be made subject to the invoice being checked.
e) The assignment or pledging to third parties of claims under contracts existing with us now or at any future time must be approved by us in writing in every single case in order to become effective. Approval shall not be refused without important cause, but re-assignment by the third party is definitely prohibited.
15. Technical Records, Tools, Production Materials, Right of Retention
a) Technical records, drawings, formulae, models, tools, data spreadsheets, production materials and suchlike provided by us shall remain our property; all copyrights shall remain with us. On carrying out the order, they are to be sent back to us immediately and unsolicited at our expense. To this extent, Supplier is not authorised to assert any right of retention. Supplier may only use the objects listed above in order to carry out the order, and it may not give them or otherwise make them accessible to unauthorised third parties. Copying or duplicating said objects is only permitted insofar as this is required in order to carry out the order.
b) If Supplier makes the objects listed in Item 15 a) itself at our expense, then Item 15 a) shall apply accordingly, whereby we shall become the owner on creation of the objects and Supplier shall keep them free of charge on our behalf.
c) All records pursuant to Item 15 a) and b) above shall remain our property, and they may not be used, copied or made accessible to third parties or for other purposes. On request, they must be handed over to us without delay, including all transcriptions and copies. We reserve the industrial copyrights in all and any records given to Supplier.
d) All manner of records which we need for using, setting up, assembling, processing, storing, running, servicing, checking, maintaining and repairing the object of delivery must be provided by Supplier at our expense, in good time and unsolicited. The standards and guidelines listed by us shall each apply as last amended. Supplier must request our work standards and guidelines if they have not already been provided.
e) Forms, models, tools, lithographs, printing blocks, etc. that have been made by Supplier for carrying out the order shall become our property on payment being effected, even if they remain in Supplier’s possession. On request, these items must be handed over to us.
f) Material contributed by us shall remain our property, and must be kept by Supplier - with all due care of a diligent businessman - free of charge and separate from other items, and must be labelled as our property. It may only be used for carrying out our order.
g) If supplier processes or re-forms the material contributed, then it shall do so on our behalf. We shall become immediate owner of the new items thus created. Insofar as the material contributed only makes up part of the new items, we shall be entitled to ownership of the new items in proportion to the value of the contributed material which they contain.
a) Supplier shall regard the request for a quote and the order, as well as the work and records relating to it, as a business secret, and shall thus treat them confidentially. Supplier shall be liable for all losses sustained by us due to any culpable breach of this obligation.
b) Displaying products manufactured in accordance with our drawings or manufacturing specifications, publications about the deliveries and services ordered, and all reference to such deliveries vis-à-vis third parties must be approved by us in writing beforehand.
17. Third-Party Protective Rights
Supplier shall be liable for third-party protective rights not being culpably infringed by the design or use of the object of delivery. Supplier is under obligation to indemnify us against all and any third-party claims in this respect.
18. Place of Performance, Venue, Governing Law
a) Place of performance shall be the delivery address we give on the order, without this being declared our registered headquarters.
b) Insofar as Supplier is a businessman, a public corporation, or a special fund under public law, venue shall be – at our option – the location of Supplier’s registered headquarters, or his normal place of abode, or Munich, or the place of performance.
c) It is agreed that the substantive law of the Federal Republic of Germany shall apply, on exclusion of CISG.