General Terms and Conditions of Purchase of Arenz GmbH & Co.KG
1. General Provisions, Scope of Application
a) We place orders exclusively on the basis of our General Terms and Conditions of Purchase; we do not recognize any terms and conditions of the supplier that conflict with or deviate from our purchasing conditions, unless we have agreed to them in writing. If we accept delivery or performance without express objection, this can in no case be construed to mean that we have accepted the supplier’s delivery terms.
b) Orders, delivery call-offs, contracts of any kind, as well as amendments or supplements thereto, are only valid if made in writing, by remote data transmission, or by machine-readable data carriers, and are confirmed in writing by the supplier within 10 days of receipt.
c) Unless otherwise agreed, the supplier may only place subcontracts with our consent.
d) We inform our suppliers that we process and transmit their personal data exclusively for business purposes using electronic data processing in accordance with the provisions of the Federal Data Protection Act.
2. Offer, Conclusion of Contract
a) Orders, delivery call-offs, contracts of any kind, as well as amendments or supplements thereto, are only valid if made in writing, by remote data transmission, or by machine-readable data carriers, and are confirmed in writing by the supplier within 10 days of receipt.
3. Invoicing, Payment, Assignment of Claims, Set-Off, Right of Retention
a) The agreed prices are fixed prices and, unless otherwise agreed in the contract, apply delivered to the delivery address specified in the contract, including packaging and transport costs as well as customs duties and transport insurance, plus applicable statutory value-added tax.
b) Invoices should be sent to our business address. Payment is made cashless, at our discretion, either within 10 days with a 3% cash discount, within 14 days with a 2% cash discount, or net within 30 days. The payment period begins on the day the invoice is received or, if delivery occurs later, one day after receipt of the delivery.
c) If the supplier assigns claims it holds against us to third parties, it must notify us of this without delay.
d) The supplier is not entitled to set off alleged claims against our company without our prior consent, unless the claim is undisputed or has been legally established.
e) The supplier’s assertion of a right of retention on account of unrecognized or non-legally-established counterclaims is excluded, insofar as such claims do not arise from the same contractual relationship.
4. Shipping, Receipt of Goods, Delivery, Transfer of Risk
a) All shipments are to be dispatched freight and ancillary-cost free. We do not advance freight charges. Our respective shipping instructions must be strictly observed. The risk of transport is borne by the supplier in all cases.
b) Goods receiving hours are Monday to Friday, 8:00 a.m. to 3:00 p.m., unless otherwise contractually agreed.
c) We accept partial deliveries only with prior written consent. In the case of agreed partial shipments, the remaining quantity must be delivered.
d) In the event of delivery earlier than agreed, we reserve the right to return the goods at the supplier’s expense. If early delivery is not returned, the goods will be stored with us until the delivery date at the supplier’s cost and risk. Payment of the invoice will be made in accordance with the agreed due date.
e) Shipment is at the supplier’s risk. The risk of any deterioration, including accidental loss, remains with the supplier until delivery at the delivery address we designate.
f) The supplier undertakes to comply with all applicable regulations and laws for all transports. Orders whose contents constitute a hazardous substance or dangerous goods must be properly labeled in accordance with the relevant regulations and accompanied by the necessary documentation (in particular a current and valid safety data sheet with hazard information, safety advice, and substance-specific details). If the supplier has equivalent goods with lower risk available, it is required to submit a corresponding offer to us. If disposal instructions are necessary, these must also be included with the delivery documents.
g) The supplier is obliged to inform itself of the customer’s special safety regulations.
h) Deliveries are made without retention of title, including in the form of an extended or prolonged retention of title held by the supplier’s own upstream suppliers. Third-party rights to items to be delivered by the supplier must be disclosed to us without request.
5. Delivery Dates, Delay in Delivery, Contractual Penalty, Acceptance of Goods
a) The agreed dates are binding. Compliance with the delivery period is determined by the receipt of the goods in flawless quality at the delivery address or point of use specified by us, or by the timeliness of successful acceptance.
b) If the supplier recognizes that the agreed dates cannot be met for any reason, it must notify us of this immediately in writing, stating the reasons and the expected duration of the delay.
c) In the event of a delay in delivery, we are entitled to demand a contractual penalty amounting to 0.1% of the value of the delivery per working day of delay, but not more than 5% of the value of the delivery. We are entitled to assert the reservation of the contractual penalty up until final payment.
d) Furthermore, in the event of the supplier’s default, after the expiry of a reasonable period for performance or subsequent performance, we are entitled, at our option, to withdraw from the contract in whole or in part and to claim damages.
6. Specifications, Warranty, Liability
a) The supplier guarantees that all items delivered by it and all services rendered by it, including planning services, correspond at the time of delivery to the state of the art, the relevant legal provisions and regulations, the guidelines of authorities, trade associations, and professional bodies, as well as generally recognized safety and occupational health standards.
b) The right to choose the type of subsequent performance also generally belongs to us in the case of a contract for work. § 439 BGB (German Civil Code) applies accordingly.
c) In addition to our statutory claims for defects, we may, following the unsuccessful expiry of a reasonable period set by us for subsequent performance, remedy the defect ourselves and demand reimbursement of the necessary expenses, unless the supplier rightfully refuses subsequent performance. In this regard, the statutory provision on self-remedy under contracts for work (§ 637 BGB) applies accordingly to purchase contracts. Notwithstanding the statutory provision, in urgent cases, in particular to avert an acute risk of significant damage, we may remedy the defect ourselves at the supplier’s expense even without setting a deadline for subsequent performance.
d) If, as a result of a defect in the item or work delivered by the supplier, we were required to take back the delivered item or work, accept a reduction in the purchase price or remuneration, or provide our customer with compensation for damages or expenses, no otherwise-required deadline needs to be set for our warranty claims against the supplier (§§ 437, 634 BGB) with respect to the defect asserted by our customer against us.
e) We may demand from the supplier reimbursement of the expenses we incur toward our customer for the purpose of subsequent performance (in particular transport, travel, labor, and material costs incurred), if the defect asserted by our customer already existed at the time risk passed to us.
f) The warranty period is 24 months, unless the law or the contract provides for a longer period. It begins with the handover of the delivery item to us or to a third party named by us at the receiving point we specify. If acceptance is required by law or contract, the warranty period begins with successful acceptance. If acceptance of a delivery item is delayed through no fault of the supplier, the warranty period begins at the latest 12 months after the delivery item is made available for acceptance.
g) If a defect occurs within the first 12 months of the warranty period, it is presumed that the defect already existed at the time risk passed, unless this presumption is incompatible with the nature of the item or the defect.
h) Claims for defects become time-barred 24 months after the defect notice is raised within the warranty period, unless the law or the contract provides for a longer period. However, the limitation period does not end before the end of the warranty period. Claims arising from defective construction work, and from defects in items that have been used in accordance with their customary use for a structure and have caused its defectiveness, become time-barred at the earliest 5 years after acceptance of the construction work or delivery of the items. The limitation period for all claims for defects does not expire before two months after the point in time at which we have satisfied any recourse claims of our customer arising from such defects. This suspension of expiry ends at the latest 5 years after the supplier delivered the item to us or we accepted the work.
i) If the supplier fulfills its obligation of subsequent performance by remedying the defect, the limitation period for this performance begins anew after acceptance of the remedial work. If the supplier fulfills its obligation of subsequent performance by way of a replacement delivery, the limitation period for the product/work delivered as a replacement begins anew after its delivery/acceptance.
j) In the case of defects of title, the supplier indemnifies us against any claims of third parties that may exist. With regard to defects of title, the limitation period is three years. This limitation period begins at the end of the year in which the claim arose and in which we obtained knowledge, or would have obtained knowledge without gross negligence, of the circumstances giving rise to the claim and of the identity of the debtor, irrespective of knowledge or grossly negligent lack of knowledge, within ten years of its arising.
k) If the supplier has reservations about the type of execution we require, or recognizes errors in our documents or drawings, it is obliged to notify us of this in writing without delay.
l) We are only obliged to inspect and give notice of defects pursuant to §§ 377, 378 HGB (German Commercial Code) to the extent that defects and shortfalls are obvious. In such cases, notice must be given within 10 working days of receipt of the goods. To meet this deadline, it is sufficient for the written notice to be dispatched in time. For all other components, equipment, and other goods whose flawless and contractual condition can only be determined after commissioning, we expressly exclude the obligation to inspect and give notice of defects at the time of delivery.
m) By acknowledging receipt of delivered items, by accepting or approving submitted drawings, or by making payments, we do not waive warranty claims or other rights.
n) The fictitious acceptance regulated in § 640 para. 1 sentence 3 BGB is excluded. Likewise, acceptance by way of a completion certificate under § 641a BGB is excluded.
7. Product Liability, Indemnification
a) If we are held liable for breaches by the supplier of official safety regulations, or under domestic or foreign product liability laws, on account of a defect in our product that is attributable to a product of the supplier, we are entitled to demand compensation for this damage from the supplier to the extent it is caused by the supplier’s products. The same applies to measures taken against us under the Product Safety Act.
b) The supplier is obliged, within the scope of its product responsibility, to indemnify us upon first demand against third-party claims for damages. In this context, the supplier is also obliged to reimburse any expenses arising from or in connection with a recall action carried out by us.
8. Intellectual Property Rights, Documents, Confidentiality
a) The supplier guarantees that all deliveries are free of third-party intellectual property rights. It indemnifies us and our customers against third-party claims arising from any infringement of intellectual property rights and bears all associated costs.
b) We are entitled, exercising the diligence of a prudent businessperson, to obtain, at the supplier’s expense, authorization to use the relevant delivery items and services from the rights holder.
c) Usage rights to software and software licenses are transferred from the supplier to us. In particular, these rights may be transferred by us to companies affiliated with us or to their legal successors.
d) Illustrations, drawings, calculations, models, tools, and other documents that we provide to the supplier for the manufacture of goods to be delivered to us may not be used for other purposes, reproduced, or made available to third parties; they remain our property and must be returned to us immediately and without request upon completion of the order.
e) Products manufactured according to documents designed by us, our specifications, our tools, or tools copied from ours, may neither be used by the supplier itself nor offered or delivered by it to third parties.
f) Tools loaned to the supplier by us are to be handled and stored carefully by the supplier and kept operational in accordance with the latest drawing revisions. The supplier will insure the tools at its own expense against fire, theft, and other damage.
9. Miscellaneous, Place of Jurisdiction, Place of Performance, Severability Clause
a) We are entitled to process personal data within the meaning of the Federal Data Protection Act to the extent necessary for the conduct of the business relationship with the supplier.
b) If the supplier is a merchant, a legal entity under public law, or a special fund under public law, the place of jurisdiction for both parties is Darmstadt. However, we are also entitled to sue the supplier at its general place of jurisdiction.
c) Unless expressly agreed otherwise, the place of performance for the delivery obligation is the delivery address specified by us.
d) Should individual provisions of these General Terms and Conditions of Purchase be or become invalid or unenforceable, the validity of the remaining provisions shall not be affected. The invalid or unenforceable provision shall be replaced by a valid or enforceable provision that comes as close as possible to its economic intent. The same applies accordingly to any unintended gaps in these provisions.
e) In addition, the law of the Federal Republic of Germany applies exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980.
f) The language of the contract is German. Insofar as the contracting parties also use another language, the German wording shall prevail.