§ 1 SCOPE OF APPLICATION; FORM
(1) These General Terms and Conditions of Purchase, also referred to as “GPC” apply to all business relations with our business partners and suppliers („Contractors“). The GPC shall only apply if the Contractor is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GPC shall apply in particular to contracts for the sale and/or delivery of movable goods („Goods“), irrespective of whether the Contractor manufactures the Goods itself or purchases them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the General Terms and Conditions of Purchase in the version valid at the time of the contractor’s order or, in any case, in the version most recently communicated to him 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 General Terms and Conditions shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Contractor shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This consent requirement shall apply in any case, for example even if we accept the Contractor’s deliveries without reservation in the knowledge of the Contractor’s General Terms and Conditions of Business.
(4) Individual agreements made with the Contractor in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GPC. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
(5) Legally relevant declarations and notifications of the Contractor with regard to the contract (e.g. setting of deadlines, reminders, withdrawal) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
(6) References to the validity of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GPC.
§ 2 CONCLUSION AND TERMS OF CONTRACT
(1) Our order shall be deemed to be binding at the earliest upon written submission or confirmation. The Contractor shall notify us of obvious errors (e.g. typing 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) Offers and cost estimates of the contractor shall be made free of charge and shall not create any obligations for bb-net, unless otherwise required by law.
(3) The contractor is obliged to confirm our order in writing within a period of 2 days or to execute it without reservation, in particular by dispatching the goods (acceptance). A delayed acceptance shall be considered a new offer and requires our acceptance.
(4) In the event of changes to the content of the contract, such as changes to the scope of delivery and performance, which prove to be absolutely necessary from the point of view of the contractor, the contractor shall notify bb-net immediately, in writing and before they are implemented, of the additional expenditure to be expected. All changes and their implementation require the prior written consent of bb-net.
(5) All goods, fixtures and equipment delivered to the customer must comply with the legal requirements. On request, the contractor must provide bb-net with appropriate certifications and/or declarations of conformity immediately and free of charge. This applies in particular, but not exclusively, to goods with CE, RoHS or EAR markings.
(6) The rights to dissolve the contract shall be determined in accordance with the statutory provisions.
(7) The customer may terminate the contract without notice for good cause.
(8) In the event of termination, without prejudice to the other rights of the Customer, the Contractor shall only be entitled to remuneration for the services rendered up to the date of termination, which are usable for the Customer.
§ 3 DELIVERY TIME AND DELAY IN DELIVERY
(1) The delivery time stated by the client in the order is binding. If the delivery time is not stated in the order and has not been agreed upon otherwise, it shall be 3 days from conclusion of the contract. The Contractor is obliged to inform us immediately in writing, if he is expecting to be unable to meet agreed delivery times – for whatever reasons.
(2) Early performance or deliveries as well as any partial performance or partial delivery shall require the express prior written consent of the Customer.
(3) If the Contractor does not perform its services or does not perform them within the agreed delivery period or is in default, our rights – in particular to rescission and compensation – shall be determined in accordance with the statutory provisions. The regulations in paragraph 4 remain unaffected.
(4) If the contractor is in default, we can – in addition to further statutory claims – demand lump-sum default compensation for damage caused, by default in the amount of 0.5% of the net price per working day, but not more than 5% of the net price of the goods delivered late. bb-net reserves the right to prove that higher damage has been caused. The contractor reserves the right to provide evidence that no damage at all or only a considerably lower damage has been incurred.
§ 4 PERFORMANCE AND DELIVERY
(1) Without our prior written consent, the contractor shall not be entitled to have the performance owed by him rendered by third parties (e.g. subcontractors). The contractor shall bear the procurement risk for his services unless otherwise agreed in individual cases (e.g. limitation to stock).
(2) Delivery within Germany shall be „free domicile“ to the place specified in the order. If the destination is not specified and unless otherwise agreed, the delivery is to be made to our registered office in Schweinfurt. The respective place of destination is also the place of performance for the delivery and any subsequent performance (debt to be discharged at the place of performance).
(3) Delivery from third countries must always be made CIF in accordance with Incoterms 2010.
(4) The delivery shall 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 are not responsible for any delays in processing and payment resulting from this. Separated from the delivery note, a corresponding dispatch note with the same content is to be sent to us.
§ 5 PRICES AND TERMS OF PAYMENT
(1) The price stated in the order is binding. All prices are understood to include statutory value added tax, if this is not shown separately.
(2) Unless otherwise agreed in individual cases, the price includes all services and ancillary services of the Contractor (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).
(3) The agreed price is due for payment within 30 calendar days from complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the Contractor shall grant us a 3% discount on the net amount of the invoice. In the case of bank transfer, payment shall be deemed to have been made on time if our bank receives our transfer order before the expiry of the payment period; we shall not be responsible for delays caused by the banks involved in the payment process.
(4) We do not owe any interest on maturity. The statutory provisions shall apply to default of payment.
(5) We shall be entitled to rights of set-off and retention as well as the defence of non-performance of the contract to the extent permitted by law. In particular, we shall be entitled to withhold due payments as long as we still have claims against the contractor arising from incomplete or defective performance.
(6) The Contractor shall only have a right of set-off or retention on the basis of counterclaims which have been determined as legally binding or are undisputed.
§ 6 TRANSFER OF RISK, DEFAULT OF ACCEPTANCE
(1) The delivery of movable objects to be produced or manufactured, as well as the performance of assembly services, requires written acceptance by bb-net. The transfer of risk passes to us upon the acceptance of the service by bb-net. An implied acceptance, in particular by putting the subjects of performance into use by bb-net, is excluded.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to us upon delivery at the place of performance. If acceptance has been agreed, it is decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly in other respects in the event of an acceptance. Should we be in default of acceptance, the handover of the delivery will not be affected.
(3) The statutory provisions shall apply to the occurrence of our default of acceptance. However, the contractor must also expressly offer us his service if an action or cooperation on our part (e.g. provision of material) at a certain or determinable calendar time is agreed upon. If we are in default of acceptance, the contractor may demand compensation for his additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract relates to an specific item to be manufactured by the contractor (individual production), the contractor shall only be entitled to further rights if we are obliged to cooperate and are responsible for the failure to cooperate.
§ 7 CONTRACTOR’S OBLIGATION TO PROVIDE INFORMATION
(1) Should the contractor deviate from the agreed service, he shall immediately and explicitly point this out to bb-net.
(2) If, in order to fulfil the agreed service, there are different solutions that are economically or technically more suitable, the contractor is obliged to inform bb-net immediately and comprehensively in writing.
(3) Should the contractor recognize that he cannot meet his contractual obligations in whole or in part or cannot meet them in time, he must inform bb-net of this without delay, stating the reasons.
§ 8 PACKAGING
(1) The contractor is obliged to collect packaging material free of charge and to dispose of it properly and completely. At the request of the Contractor, appropriate proof of the legally compliant disposal shall be provided by third parties, if necessary. If the Contractor fails to comply with this obligation, the Customer shall be entitled to charge the Contractor for the costs of the professional collection and disposal and the associated expenses in full.
(2) The Contractor undertakes to comply with the obligations arising from the Packaging Ordinance (VerpackV), in particular with regard to proper licensing, to prove this to the Customer upon request and to fulfil the obligations arising for the Customer from the Packaging Ordinance. If these obligations are not transferable, the Contractor shall support the Customer in fulfilling them free of charge.
§ 9 SECRECY
(1) The client reserves the right of ownership and copyright to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents shall be used exclusively for the contractual performance and shall be returned to us after completion of the contract. The documents must be kept secret from third parties, even after termination of the contract. The obligation to maintain secrecy shall not expire until and insofar as the knowledge contained in the documents provided has become generally known.
(2) The above provision shall apply mutatis mutandis to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items which we provide to the Contractor for production. Such objects are – as long as they are not processed -to be stored separately at the expense of the Contractor and to be insured to a reasonable extent against destruction and loss.
§ 10 RETENTION OF TITLE
(1) An extended, forwarded, expanded or subsequent retention of title of the Contractor to the ordered Goods is not recognised by the Customer.
(2) If the Customer accepts an offer of the Contractor for transfer of ownership (simple retention of title), which is conditional upon payment of the purchase price, the retention of title shall expire at the latest upon payment of the purchase price for the goods.
§ 11 DEFECTIVE DELIVERY
(1) The statutory provisions shall apply to our rights in the event of material defects and defects of title of the goods (including incorrect and short delivery as well as improper assembly, defective assembly, operating or instruction manuals) and other breaches of duty by the Contractor, unless otherwise provided for below.
(2) In accordance with the statutory provisions, the Contractor shall be liable in particular for ensuring that the Goods have the agreed quality at the time of transfer of risk to us. In any event, those product descriptions which – in particular by designation or reference in our order – are the subject matter of the respective contract or which have been incorporated into the contract in the same way as these GPC shall be deemed to be an agreement on quality. It makes no difference whether the product description originates from us, the Contractor or the manufacturer.
(3) Notwithstanding § 442 para. 1 sentence 2 BGB (German Civil Code), the Customer shall be entitled to claims for defects without limitation even if the Customer was unaware of the defect at the time of conclusion of the contract due to gross negligence.
(4) The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial duty to inspect and give notice of defects with the following proviso: Our duty to inspect shall be limited to defects which become apparent during our incoming Goods inspection under external examination, including the delivery documents (e.g. transport damage, wrong and short delivery) or which are recognizable during our quality control by random sampling. Insofar as acceptance has been agreed, there is no obligation to inspect. Otherwise, it depends on the extent to which an inspection is feasible in the normal course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later remains unaffected. Irrespective of our duty to inspect, our complaint (notification of defects) shall in any case be deemed to be prompt and timely if it is sent within 5 working days of discovery or, in the case of obvious defects, of delivery.
(5) Subsequent performance shall also include the removal of the defective Goods and their reinstallation, provided that the Goods have been installed in or attached to another object in accordance with their type and intended use; our statutory claim to reimbursement of corresponding expenses shall remain unaffected. The Contractor shall bear the expenses necessary for the purpose of inspection and subsequent performance even if it turns out that there was no defect. Our liability for damages in the event of an unjustified request for the removal of defects remains unaffected; however, in this respect we shall only be liable if we have recognized or grossly negligently failed to recognize that there was no defect.
(6) Notwithstanding our statutory rights and the provisions in para. 5, the following shall apply: If the Contractor fails to meet its obligation to provide subsequent performance – at our discretion either by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery) – within a reasonable period of time set by us, we may remedy the defect ourselves and demand reimbursement of the necessary expenses or a corresponding advance payment from the Contractor. If subsequent performance by the Contractor has failed or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or the threat of disproportionate damage), no deadline need be set; we shall notify the Contractor of such circumstances without delay, if possible in advance.
(7) Otherwise, in the event of a material defect or defect of title, we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, we shall be entitled to compensation for damages and expenses in accordance with the statutory provisions.
§ 12 SUPPLIER RECOURSE
(1) Our legally determined rights of recourse within a supply chain (supplier recourse according §§ 445a, 445b, 478 BGB), we are entitled without restriction in addition to the claims for defects. In particular, we are entitled to demand from the Contractor exactly the type of subsequent performance (rectification of defects or replacement delivery) that we owe our Customer in the individual case. Our statutory right of choice (§ 439 para. 1 BGB) is not restricted by this.
(2) Before we acknowledge or fulfil a claim for defects asserted by our customer (including reimbursement of expenses in accordance with §§ 445a para. 1, 439 para. 2 and 3 BGB), we shall notify the contractor and request a written statement of the facts of the case. If a substantiated statement is not made within a reasonable period of time and no amicable solution is brought about, the claim for defects actually granted by us shall be deemed to be owed to our Customer. In this case, the Contractor shall be responsible for providing proof to the contrary.
(3) Our claims arising from supplier recourse shall also apply if the defective goods have been further processed by us or a third party, e.g. by incorporation into another product.
§ 13 PRODUCER LIABILITY
(1) If the Contractor is responsible for product damage, he shall indemnify us against claims by third parties to the extent that the cause lies within his sphere of control and organisation and the Contractor himself is liable vis-à-vis third parties.
(2) Within the scope of his obligation to indemnify, the Contractor shall reimburse expenses pursuant to §§ 683, 670 BGB (German Civil Code) which arise from or in connection with a third-party claim, including recall actions carried out by us. We shall inform the Contractor of the content and scope of recall measures – as far as possible and reasonable – and give him the opportunity to comment. Further legal claims shall remain unaffected.
(3) The Contractor shall take out and maintain product liability insurance with a lump sum coverage of at least EUR 10 million per personal injury/property damage
§ 14 INDUSTRIAL PROPERTY RIGHTS
(1) The Contractor shall indemnify the Client on first written request and without prejudice to statutory claims, from alleged infringements of patent law, copyright or other property rights. The obligation to indemnify includes all expenses incurred by the Customer in connection with claims by third parties.
(2) The period of limitation for the claim for indemnification is three years from the time of knowledge or grossly negligent ignorance of the client of the circumstances justifying the claim. Otherwise, the claim for indemnification shall become statute-barred ten years after its creation, regardless of the knowledge or grossly negligent lack of knowledge.
§ 15 LIMITATION PERIOD
(1) The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, unless otherwise provided for below.
(2) Notwithstanding § 438 (1) No. 3 BGB (German Civil Code), 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 commence upon acceptance. The 3-year period of limitation shall also apply accordingly to claims arising from defects of title, whereby the statutory period of limitation for real claims for restitution of property of third parties (§ 438 para. 1 No. 1 BGB) shall remain unaffected; furthermore, claims arising from defects of title shall in no case become statute-barred as long as the third party can still assert the right – in particular in the absence of limitation – against us.
(3) The limitation periods of the law on sales, including the above extension, shall apply – to the statutory extent – 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 (§§ 195, 199 BGB) shall apply here, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.
§ 16 RIGHTS OF USE AND EXPLOITATION
(1) If no deviating agreements have been made, the Contractor irrevocably grants the Contractor, insofar as he himself is the owner of all rights, unlimited rights of use and exploitation of all calculations, graphics, plans, products, models, drawings, tools, graphics or other documents in written, electronic or other form.
§ 17 REVIEW
(1) The Customer is entitled to check the execution of the contract by the Contractor. The Customer reserves the right to inspect test and execution documents and to check the facilities and equipment necessary for the execution of the contract. If the Customer considers an inspection of the Contractor’s premises to be necessary, the Customer shall register in advance for an appointment within the operating hours.
(2) The Customer is also entitled to check compliance with the regulations in accordance with Clause 19 of these GPC.
§ 18 REFERENCE
(1) The use of company names, brand names or logos of the Customer by the Contractor in connection with advertising purposes or references requires the express written consent of the Customer in advance.
§ 19 BB-NET REGULATIONS, ACCESS AUTHORIZATION
(1) Upon entering the premises of bb-net, the Contractor undertakes to take note of and comply with the external company regulations. The regulations can be accessed on the Internet at www.bb-net.de/fremdfirmenordnung.
§ 20 CHOICE OF LAW AND PLACE OF JURISDICTION
(1) These GPC and the contractual relationship between us and the Contractor shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Sales Convention.
(2) If the Contractor 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 – also international – place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office in Schweinfurt. In all cases, however, we shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement or at the general place of jurisdiction of the Contractor. Priority statutory provisions, in particular those concerning exclusive jurisdiction, shall remain unaffected.