(Effective as of July 2013)
1. General; scope; performance specification
1.1 These General Conditions of Purchase (hereinafter also: GCP) apply to all business relations with our business partners and suppliers (hereinafter: Suppliers). These General Conditions of Purchase shall apply to the exclusion of all other terms and conditions. Suppliers' terms and conditions which differ from or conflict with our GCP shall not be recognised unless we have expressly agreed in writing to their being applied. Our GCP shall apply also if, having knowledge that Supplier's terms differ from or conflict with our GCP, we accept Supplier's delivery without reservation. Our GCP shall also apply to all future transactions with Supplier.
1.2 All agreements reached between us and Supplier for the execution of an order must be given written form. Oral agreements shall be confirmed by the parties in writing.
1.3 Correspondence relevant to a contract must be conducted solely with the "Purchase" division. Legally relevant declarations and notices from other divisions or departments are subject to the express approval of the "Purchase" division. Any invoicing to our CSN-franchisees or partner-companies is prohibited. Any inquiries or orders of CSN-franchisees or partner-companies have to be promptly forwarded to CSN Wichmann GmbH in Osnabrück and must not be treated.
2. Orders, transfer of obligations, WiCHMANN articles and order numbers
2.1 Our orders shall be without obligation until accepted by Supplier. Orders placed orally or by telephone must, for evidential purposes, be confirmed by us in writing.
2.2 Supplier shall not be entitled to transfer its obligations under the contract, or material parts of the contract, to third parties without our express approval.
2.3 Orders are to be accepted by Supplier in writing within one week of order date.
2.4 The WiCHMANN article numbers specified in the order must be stated in the order confirmation, the delivery note and the invoice. The WiCHMANN order numbers must be shown clearly in the order confirmation, the delivery note, the invoice, the consignment note (waybill) and the package label.
3. Prices, terms of payment, invoices
3.1 The prices stated in the order shall be binding, shall be on DDP terms and shall include packing. The prices shall include statutory VAT except where this is specified separately. The agreed price shall be due for payment within 60 days as from completion of delivery and service including any agreed acceptance and receipt of a formal and correct invoice, which must include the attribution features (numbers) specified in section 2.4. In cases of payment by us within 14 calendar days, Supplier shall grant us 3% cash discount.
3.2 The invoice must comply with the provisions of the German Turnover Tax Act, containing the requirements stated under section 2.4. It must be sent in duplicate either by postal service to the address stated on the order or as PDF-file to a specially indicated E-Mail address.
3.3 Claims resulting from deliveries to us may only be transferred to third parties subject to agreement with us.
3.4 We shall be entitled to offset and withhold invoice amounts to the extent allowed in statute law. We shall in particular be entitled to withhold due payments for as long as we have claims against Supplier on grounds of incomplete or defective deliveries.
3.5 Supplier shall have a right to offset or withhold only in the event of counter-claims which are undisputed or have been established at law.
4. Delivery, deadlines, delay
4.1 The delivery date or period stipulated in the order shall have binding effect. Differing dates or periods shall be permissible only with our prior approval. Adherence to the delivery date or period shall be determined by the date on which we receive the goods.
4.2 Supplier shall be obliged to inform us in writing without delay if a situation arises or becomes apparent to Supplier which makes it clear that the stipulated delivery time cannot be adhered to. Such notification shall not release Supplier from its obligation to make delivery in due time, and we therefore reserve the right to assert further rights and claims on grounds of delivery delay or default.
4.3 In the event of default on delivery we shall have the rights and claims prescribed in statute law. We shall in particular be entitled, after fruitless expiry of a reasonable period, to require payment of damages instead of contract performance. It shall not be necessary to set a new deadline in cases where the law states that the setting of a new deadline in order to substantiate delivery default can be dispensed with. If we claim for damages, Supplier shall have the right to bring evidence that it is not responsible for the breach of obligation.
4.4 Delivery of partial or excess quantities shall in principle be impermissible unless we have expressly approved such delivery.
4.5 The effective numbers for quantity, weights and dimensions shall be those determined by way of the goods inward inspection. Discrepancies of quantity, weight and dimension will be recorded by us in a debit or credit note and forwarded to Supplier for its information.
4.6 If shipments are effected inadequately in respect of mode of shipment, weights, dimensions or packing, we shall be entitled to charge Supplier for additional expenditure incurred by us. Debit/credit notes will be offset by us at due payment date.
5.1 The provisions of statute law stipulate the rights due to us in case of the goods showing defects of quality and title, including incorrect and short delivery, faulty instructions for assembly, use and operation and other breaches of obligations by Supplier, except where stipulated otherwise below.
5.2 Supplier shall in particular be liable for ensuring that the goods have the agreed properties as of transfer of risk to us. Product specifications which - particularly through reference or inclusion in our order - are an integral part of the particular order or which are included in the contract in the same manner as the present GCP shall in every case be deemed to constitute an agreement on the properties of the goods. In this context it is immaterial whether the product specifications are from us, from Supplier or from the manufacturer.
5.3 Contrary to Section 442 (1) (2) BGB (German Civil Code), we shall also have an unrestricted right to claim for defects if a defect was kept from our knowledge through gross negligence at the time of conclusion of the contract.
5.4 The business operator's obligation in respect of inspection and complaint shall be subject to the statutory provisions of Sections 377 and 381 HGB (German Commercial Code) and the following stipulation: Our obligation to inspect shall be restricted to defects which become apparent during our goods inward inspection of outward condition, including the transport documents, and during our quality controls by means of spot checks (e.g. damage in transit, short delivery, delivery of wrong goods). If formal acceptance has been agreed, there shall be no obligation to inspect. A further material point is the extent to which an inspection is feasible in the normal course of business, taking the circumstances of the individual case into consideration. A complaint shall be deemed to have been made in due time if it is received by Supplier within 10 working days of receipt of the goods or - in the case of concealed defects - of detection of the defect.
5.5 The costs incurred by Supplier through inspection and rectification shall also be borne by Supplier if it turns out that no defect was in fact present. This shall be without prejudice to our liability to pay damages if we make an unjustified demand for rectification of a defect; however, we shall be liable only if we have found - or through gross negligence failed to find - that there was no defect.
5.6 If Supplier does not fulfil its obligation of supplementary performance - at our option, either by removal of the defect (repair) or by delivery of faultless goods (replacement) - within a reasonable period stipulated by us, we may remove the defect ourselves and require Supplier to reimburse us for the expense thus made necessary or to advance us an appropriate amount. If Supplier's supplementary performance is unsuccessful or unacceptable to us (e.g. because of special urgency, danger to operational safety or the threat of excessive damage or loss) it shall not be necessary to set a deadline. Supplier must be informed without delay, if possible in advance.
5.7 In other respects we shall be entitled, in the event of defects of quality or title, to reduce the purchase price or withdraw from the contract, as provided for in statute law. The statutory provisions also entitle us to claim for damages and reimbursement of costs.
6. Supplier's recourse
6.1 Our rights of recourse under the law as part of a delivery chain (supplier's recourse under Sections 478 and 479 BGB) apply without restriction, in addition to claims for defects. We shall in particular be entitled to require from Supplier precisely the same type of supplementary performance (repair or replacement) as that which we owe our customer in any individual case. This shall not restrict our option, which is established by statute (Section 439 (1) BGB).
6.2 Before we accept or fulfil a claim for defects asserted by our customer (including reimbursement of expenses under Section 478 (3) and 439 (2) BGB), we will notify Supplier, briefly setting out the facts and requesting its comments in writing. If the comments are not received within a reasonable time and if no solution is arrived at on the basis of mutual agreement, the claim for defects which we in fact have granted shall be deemed the rightful due of our customer. In this case the onus shall be on Supplier to prove the contrary.
6.3 Our claims on the basis of supplier's recourse shall also be valid if the goods were processed by us or by one of our customers, e.g. through being incorporated in another product, before they were sold to a consumer.
7. Product liability
7.1 In the event of claims being made on us on grounds of product liability, Supplier shall be obliged to indemnify us against the claims of third parties provided that the cause of the claim falls within Supplier's range of organisation and control and that Supplier itself is liable to third parties.
7.2 In the case specified in section 7.1, Supplier shall assume all costs and expenses, including any legal costs that may arise.
7.3 Supplier must, under its indemnity obligation, reimburse any costs which may be incurred by us in connection with made made by third parties, including any product recalls which we may have to execute. We will inform Supplier - as far as is possible and reasonable - of the contents and scope of such product recalls and give Supplier the opportunity to state its position. Further claims under statute law shall remain unaffected.
7.4 Supplier undertakes to maintain product liability insurance with an indemnity limit of EUR 3,000,000 pre injury to person or property as a lump sum, throughout the term of the contract, i.e. until expiry of the limitation period for claims for defects. If we are entitled to further claims for damages these shall remain unaffected
8. Statute of limitations
8.1 The claims by either of the contracting parties shall become statute-barred as laid down in statute law except where stipulated otherwise below.
8.2 Contrary to Section 438 (1) (3) BGB, the general limitation period for claims for defects shall be 3 years as from passage of risk. If formal acceptance has been agreed on, the period of limitation shall commence as of acceptance. The 3-year period of limitation shall apply correspondingly to claims for defects of title, but without prejudice to the statutory period of limitation for claims for surrender of goods on the basis of the real right of a third party (Section 438 (1) (1) BGB). Furthermore, claims for defects of title shall in no case become statute-barred as long as the third party can assert legal claims against us, in particular in the absence of limitation by statute.
8.3 The limitation periods under sale of goods law, including the aforesaid period extensions, shall apply - to the extent allowed by the law - to all claims for defects under contract. In cases when we are entitled to non-contractual claims for damages on grounds of a defect, the regular statutory limitation periods shall apply (Sections 195, 199 BGB) except when the application of the limitation periods under sale of goods law results in a longer period of limitation.
9. Limitation of liability
9.1 Claims against us for damages, whatever their legal foundation, are excluded. This shall not include (a) damage or loss resulting from injury to life, person or health which results from a culpable breach of obligation by us or by our vicarious agents and (b) damage or loss which results from a culpable breach of obligation committed with deliberate intent or in gross negligence by us or by our vicarious agents.
9.2 If a damage or loss which does not result from injury to life, person or health is due to the simple negligent breach of a material contractual obligation or the simple negligent breach of an obligation the fulfilment of which has made the proper performance of the contract possible in the first place and the fulfilment of which Supplier can normally and reasonably expect, we shall also be liable for such damage or loss. Liability shall however in these cases be limited to damage or loss which is predictable and of typical occurrence.
9.3 Any and all exclusions or limitations we have placed on our liability shall apply also to the same extent to the personal liability of all persons working for us in any capacity, including wage and salary earners, vicarious agents and other auxiliary personnel.
10. Intellectual property rights
10.1 Supplier shall be responsible for ensuring that its deliveries to us do not involve infringement of the rights of third parties.
10.2 If claims are made on us by third parties in this respect, Supplier shall be obliged to indemnify us from such claims on first written request. We shall not be entitled to reach any agreements with the third party - except with the approval of Supplier - and in particular not to conclude a composition.
10.3 Supplier's obligation to indemnify shall apply to all expenses incurred by us, resulting from or in connection with claims made on us by a third party.
11. Retention of title, provision of materials, joint ownership
11.1 Should Supplier require an agreement on retention of title, we shall recognise only simple retention of title. There shall be no regulation for an extended or expanded retention of title unless expressly confirmed by us to such effect.
11.2 We shall retain title to any materials, parts, containers, special-purpose packaging, other objects and packaging with which we have provided Supplier. Such items may be used only for the purpose intended. Any processing or modification by Supplier shall be done on our behalf. If processing is done with other items which do not belong to us, we shall acquire joint ownership of the new article in proportion to the value of our item compared with the value of the other processed items at the time of processing.
11.3 If the item provided by us is inseparably combined with other items which do not belong to us, we shall acquire joint ownership of the new article in proportion to the value of our item compared with the value of the other processed items at the time of such combination. If the effect of the combination is that Supplier's item must be seen as the primary item, it shall be deemed agreed that Supplier transfers joint ownership to us on a pro rata basis; Supplier shall hold sole ownership or joint ownership on our behalf.
12. Documents, title, confidentiality
12.1 We retain title and copyright in respect of illustrations, drawings, calculations and other supporting documents, which are to be used solely for manufacturing on the basis of our order.
12.2 Supplier shall be obliged to keep confidential all the illustrations, drawings, calculations, other supporting documents and information received; these may be revealed to third parties only with our express approval. Supplier shall also impose the same obligation of confidentiality on its vicarious agents (employees or third parties).
12.3 The obligation of confidentiality shall continue in force after performance of the contract and shall lapse only if and when the manufacturing knowledge contained in the illustrations, drawings, calculations and other supporting documents handed over to Supplier has entered the public domain.
The use of our company name, trademarks and other intellectual property rights for advertising purposes, in particular through references in brochures and the like, shall be permissible only with our express prior approval.
14. Human rights, protection of the environment
Supplier undertakes to comply with the pertinent statutory regulations for treatment of the workforce, protection of the environment and safety at work, and to make efforts to reduce any adverse effects its activities may have on people and the environment. Furthermore, Supplier shall comply with the principles of the UN's Global Compact Initiative. These principles are primarily concerned with the international protection of human rights, the abolition of forced and child labour, the elimination of discrimination in relation to recruitment and employment, responsibility for the environment and the prevention of corruption.
15. Fair competition
Compliance with the pertinent statutory provisions is of paramount importance for us, and we expect our business partners to observe the the laws and regulations valid at any given time. In particular, our employees must not be offered, promised or granted any benefits (e.g. gifts, invitations to attend sporting or other events, invitations to meals, financial compensation or advantages, discounts or allowances of any kind), for the employees themselves or a third party, in return for the party concerned or any other party being unlawfully given preferential treatment with regard to the purchase of goods or services.
16. Place of jurisdiction, governing law, place of performance
16.1 Provided that Supplier is a merchant, a legal person under public law or a specialised agency under public law, the sole and exclusive place of jurisdiction - also at international level - for all disputes that may arise from the contractual relationship shall be our place of business, Osnabrück. We shall however also be entitled to sue Supplier at its general place of jurisdiction (where it has its registered office).
16.2 The contractual relationship shall be governed by German law. The UN Convention on the International Sale of Goods (CISG) shall not be applicable.
16.3 The place of performance shall - except when expressly agreed otherwise - be our place of business, Osnabrück.