General Terms and Conditions of Purchase of the Synwer GmbH Valid from 27.10.2020

  1. Scope          

1.1 We order exclusively based on these General Terms and Conditions of Purchase. Other/different terms and conditions of the supplier shall not apply unless we have expressly accepted them in writing. Orders and acceptance of deliveries/services do not constitute acceptance or acknowledgement of the supplier’s terms and conditions.

1.2 These General Terms and Conditions of Purchase (GTP) apply to all business relations with our business partners and suppliers (“Suppliers”). The GTP shall only apply if the Supplier is an entrepreneur (§ 14 German Civil Code), a legal entity under public law or a special fund under public law.

1.3 These Terms and Conditions of Purchase apply in particular to contracts for work and services and contracts for the purchase and/or delivery of movable goods (“Goods”), irrespective of whether the Supplier manufactures the Goods himself or purchases them from suppliers (§§ 433, 650 German Civil Code). Unless otherwise agreed, these Terms and Conditions of Purchase shall also apply to all future contractual relationships with the Supplier and in this context to the worldwide purchase of all goods and services.

1.4 References in these terms and conditions of purchase to the validity of statutory provisions shall only have clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these Terms and Conditions of Purchase.

  1. Offers, documents

2.1 Offers of the supplier must always be submitted in writing or in text form and are without obligation to pay remuneration.

2.2 We reserve all rights of ownership, rights of use and exploitation as well as intellectual property rights to all drawings, plans, illustrations, samples, or similar and other documents provided to the supplier for the purpose of submitting offers. These may not be handed over or made accessible to third parties without our express written consent.

  1. Orders

3.1 Orders are only legally binding if we place them in writing or in text form. Orders placed verbally require subsequent written confirmation on our part. We may refuse to accept deliveries that are not made based on a proper order in accordance with the above-mentioned regulations. If there are any ambiguities in the order, they must be clarified by consulting the supplier.

3.2. The supplier is obliged to confirm an order within a period of 3 working days in written or text form. If there is no reaction from the supplier, the order is considered accepted.

3.3. The commissioning of a subcontractor requires our prior written consent. In doing so, the supplier’s obligations towards us shall remain unrestricted and he shall be liable for any errors of his subcontractor.

  1. Prices, delivery, packaging

4.1. The prices stated in the order are binding and are exclusive of VAT. For all deliveries, the delivery condition DAP (delivered at place) according to Incoterms 2020 is deemed to be agreed, unless the parties have expressly agreed otherwise. The prices include packaging.

4.2. Changes due to subsequent cost increases are excluded, regardless of the reason, unless expressly agreed otherwise.

4.3. The supplier must inform us immediately of the completion of a delivery by means of a dispatch note. Our order number must be stated on this notification and on all other documents and invoices relating to the order.

4.4. The supplier must use environmentally friendly and, if possible, reusable packaging materials.

4.5. The supplier guarantees to be affiliated to a disposal system recognized under the German Packaging Act (VerpackG) and will provide evidence of this upon request. The supplier undertakes towards us to take back all packaging from his deliveries free of charge for us.

4.6. If the Contractual Supplier is not connected to a functioning waste disposal system or does not provide proof of such a system, the Contractual Supplier shall share proportionately in all costs incurred for the collection, sorting, storage, disposal and recycling of the transport packaging until a corresponding contract is concluded or corresponding proof is received.

  1. Invoice, payment, offsetting

5.1 Invoices shall be issued in duplicate with all necessary proofs and reference to the order number. Delays due to non-compliance with these requirements shall be borne by the supplier. In such cases, payment periods shall not begin to run before the presentation of verifiable invoices that comply with these regulations.

5.2 We have the right to make payments within 14 calendar days less 3% discount or after 30 calendar days net. The periods shall run after receipt of the invoice, but not before complete delivery or performance free of defects. 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 payment deadline; we shall not be responsible for delays caused by the banks involved in the payment process.

5.3 We shall be entitled to rights of offsetting and retention provided for by law under the conditions specified therein. We are entitled to withhold due payments if we still have claims against the supplier arising from incomplete or defective performance.

5.4 The supplier is only entitled to a right of offsetting or retention for claims that have been legally established or are not disputed.

  1. Price adjustment 

6.1 The prices agreed under these terms and conditions shall be adjusted in accordance with market developments in such a way that cost increases and cost reductions occurring after conclusion of the contract due to changing material and raw material prices at the time of the respective delivery shall be taken into account appropriately.

6.2 Price changes caused by changes in the contract product or by changes in the requirements for the contract product are negotiated and determined after a joint cost analysis.

6.3 The parties will tolerate a price increase or decrease up to a limit of 5%. The changes in costs are to be considered by the supplier and proof of these changes is to be provided to the purchaser on request.

6.4 If the supplier makes a price increase which is outside this tolerance limit, the purchaser is entitled to terminate this contract and all associated individual contracts and orders with immediate effect.

6.5 If the supplier’s costs fall below the tolerance limit, the supplier is obliged to immediately adjust the prices in favor of the customer.

  1. Dates, deadlines, contractual penalty, force majeure

7.1 Agreed dates and periods of delivery are binding and are calculated from the day of the order. Decisive for their compliance is the arrival of the delivery at the place of receipt specified in the order or the successful acceptance if such is contractually agreed or provided by law. If the place of destination is not specified and unless otherwise agreed, delivery shall be made to our registered office in Troisdorf. The respective destination is also the place of performance for the delivery and any subsequent performance (obligation to fulfil).

7.2 If the supplier realizes that he will not be able to meet the dates or deadlines, he must inform us immediately in writing, stating the reasons and the expected duration of the delay. Acceptance of the new delivery date requires our consent in writing or text form (e-mail, fax, etc.), it is not given by the supplier’s notification or by silence in response to this notification.

7.3 If the supplier is in default of delivery, we shall be entitled to the statutory claims. We are entitled to claim damages and to withdraw from the contract after a reasonable grace period has expired without result. We only accept early deliveries or partial deliveries in individual cases or if this has been expressly agreed. Otherwise, we have the right to return the delivery at the supplier’s expense. Even if we accept them, we are not obliged to make premature payments.

7.4 If the supplier is more than 2 days in default of delivery, we may – in addition to further legal claims – demand a contractual penalty amounting to 0.3% of the net price of the delayed delivered goods for each completed working day from the 3rd day of the delay, but not more than 5% of the net price of the delayed delivered goods in total.

7.5 If we are in default of acceptance, the statutory provisions shall apply. However, the supplier must also expressly offer us his service if a specific or determinable calendar period has been agreed for an action or cooperation on our part (e.g. provision of material). If we are in default of acceptance, the supplier can demand compensation for his additional expenses in accordance with the statutory provisions (§ 304 German Civil Code). If the contract relates to an unacceptable item to be manufactured by the supplier (individual production), the supplier shall only be entitled to further rights if we are obliged to cooperate and are responsible for the failure to cooperate.

7.6 Serious events, such as in particular force majeure, labor disputes, unrest, epidemics, warlike or terrorist conflicts, which have unforeseeable consequences for the performance of services, shall release the parties from their contractual obligations to perform for the duration of the disturbance and to the extent of their effect, even if they are in default. An automatic termination of the contract is not associated with this. The parties to the contract are obliged to notify each other of such an obstacle and to adapt their obligations to the changed circumstances in good faith and with mutual consideration.

  1. Condition – Implementation regulations

8.1 The properties or features stated in the specification according to the order or in quality assurance agreements must necessarily be fulfilled by the purchased goods as agreed quality features.

8.2 Insofar as the supplier receives drawings, samples, or other instructions from us, these are solely decisive for the type, quality, and design of the goods to be delivered.

8.3 In the case of series production in accordance with our specifications, this may only be commenced after our approval of the sample in writing or text form (e-mail, fax, etc.). Any concerns the supplier has about our specification must be communicated immediately. In this case, sample production or other contractual performance may not take place until an agreement has been reached between the parties.

8.4 The delivered goods must comply with the relevant applicable statutory accident prevention regulations, VDE regulations, other statutory rules and regulations and the recognized rules of technology.

  1. Liability for material defects, supplier recourse

9.1 The supplier must ensure that the guarantees he has given are observed and ensure that the deliveries or services are free of defects. They must also comply with the relevant public law provisions, guidelines and regulations of authorities, professional associations, etc.

9.2 In case of a defect, we are entitled to the statutory claims for defects, unless otherwise stipulated below. We are entitled to demand that the supplier remedies the defect or delivers or manufactures a new product, at our discretion. The supplier must bear the costs arising in connection with subsequent performance. We reserve the rights provided by law, to reduce the purchase price or to withdraw from the contract, as well as the rights to damages, damages in lieu of performance or the assertion of warranty claims.

9.3 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 item in accordance with their nature and intended use; our legal claim to reimbursement of corresponding expenses shall remain unaffected. The supplier 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 unjustified requests for the removal of defects remains unaffected; in this respect, however, we are only liable if we have recognized or grossly negligently failed to recognize that there was no defect.

9.4 The statutory provisions (§§ 377, 381 German Commercial Code) shall apply to the commercial duty to inspect and give notice of defects with the following provision: Our duty to inspect shall be limited to defects which become apparent during our incoming goods inspection under external appraisal, including the delivery documents (e.g. transport damage, wrong and short delivery) or which are recognizable during our quality control by random sampling. If 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, considering 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 2 calendar days of discovery or, in the case of obvious defects, of delivery.

9.5 If the supplier does not fulfil his obligation to provide subsequent performance – either by remedying the defect (rectification of defects) or by delivering a defect-free item (replacement delivery) at our discretion – within a reasonable period of time, we may remedy the defect ourselves and demand reimbursement of the necessary expenses or a corresponding advance payment from the supplier. If subsequent performance by the supplier has failed or is unreasonable for us (e.g. in cases of risk of disproportionately high damage, endangerment of operational safety or other special urgency), we are entitled to remedy the defect at the supplier’s expense without setting a deadline beforehand. This does not release us from the obligation to inform him immediately of such measures.

9.6 The limitation period for claims for material defects and defects of title is 3 years, in deviation from § 438 clause 1 No. 3 German Civil Code, unless a longer period is provided by law. The period begins to run with the transfer of risk. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. Furthermore, claims arising from defects of title shall not become time-barred under any circumstances if the third party can still assert the right – in the absence of a limitation period – against us.

9.7 The statute of limitations of the right of purchase 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 German Civil Code) shall apply here, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.

9.8 In addition to claims for defects, we are entitled to our legally determined rights of recourse within a supply chain (supplier recourse according to §§ 445a, 445b, 478 German Civil Code) without restriction. We are entitled to demand from the Seller exactly the type of subsequent performance (repair or replacement) that we owe to our customer in the individual case. Our legal right of choice (§ 439 para. 1 German Civil Code) is not restricted by this.

  1. Product liability, exemption from third party claims, insurance, industrial property rights

10.1 If the supplier is responsible for a product damage, he must indemnify us from third party claims to the extent that the cause lies within his area of control and organization and he himself is liable in the external relationship.

10.2 Within the scope of his obligation to indemnify, the supplier must reimburse expenses in accordance with §§ 683, 670 German Civil Code, which arise from or in connection with a claim by third parties, including recall actions carried out by us. We shall inform him of the content and scope of such measures if a recall campaign is to be carried out. Other legal claims to which we are entitled remain unaffected.

10.3 The supplier must take out and maintain product liability insurance with a lump sum coverage of at least EUR 10 million per personal injury/property damage and provide proof of insurance on request.

10.4 The supplier guarantees that deliveries or services, for the contractually agreed purposes of use, do not violate the property rights of third parties.

10.5 If the industrial property rights of third parties are infringed, the supplier shall indemnify us against third-party claims and reimburse all expenses incurred by us because of third-party claims.

  1. Withdrawal from the contract – compensation

 

11.1 If the supplier does not fulfil the obligations assumed with the contract or does not fulfil them in accordance with the contract, we can withdraw from the contract after the unsuccessful expiry of a reasonable deadline for performance and demand damages instead of performance.

 

11.2 We are entitled to withdraw from the contract in particular if the supplier violates his obligation according to clause 14.3.

 

11.3 We also have the right to withdraw from the contract if the supplier ceases delivery or is continuously in default with the delivery of his contractually owed performance.

 

11.4 The rights mentioned under clause 9 in the event of material defects and the right to extraordinary termination for good cause in the case of continuous obligations remain unaffected.

  1. Reservation of title, provision of materials

12.1 Retentions of title by the supplier only become effective if we expressly agree. Consent is only given for simple reservation of title.

12.2 Any materials provided by us to the supplier shall remain our property as well as any tools, drawings or other documents provided to the supplier in connection with the conclusion or execution of the contract. Tools provided to the supplier may only be used to produce the deliveries to be manufactured for us.

12.3 The processing or alteration of provisions provided by the supplier is carried out for us. If the provided materials are processed with other goods, we shall acquire co-ownership of a newly created object in the ratio of the value of our provided materials to the other processed objects at the time of processing. If provisions are inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the provisions to the other items at the time of mixing. If the mixing leads to the fact that the supplier’s items are to be regarded as the main item in relation to the items provided by us, the supplier shall transfer the co-ownership of the new item to us on a pro rata basis and shall keep it safe for us.

  1. Prohibition of assignment

Contractual rights and obligations of the supplier towards us are not assignable or transferable without our written consent. § 354a German Commercial Code remains unaffected.

  1. Confidentiality

14.1 The supplier is obliged to keep secret all drawings, plans, illustrations, calculations, models, samples, and other documents provided to him, unless they are generally known or are made publicly available. He may only disclose or pass them on to third parties with our express written consent if he has obliged third parties to maintain appropriate secrecy in each case. The supplier shall be liable to us for breaches of contract by commissioned third parties as for his own misconduct.

14.2 The obligation to maintain secrecy shall continue to exist after the termination of the contract. The obligation of secrecy shall only expire if and insofar as the knowledge contained in the documents provided has become generally known.

14.3 In the event of a culpable breach of the confidentiality obligation by the supplier, a sub-supplier or any other subcontractor, we are entitled in each individual case to demand payment of a no-fault contractual penalty in an appropriate amount, whereby we will determine the amount at our reasonable discretion (§ 315 German Civil Code) and the appropriateness of the contractual penalty can be reviewed by the competent court in the event of a dispute. However, we reserve the right to claim further damages – considering the contractual penalty.

  1. Place of performance, choice of law, place of jurisdiction, other

15.1 The place of performance for all contractual obligations of the supplier is the receiving address stated in the order

15.2 The parties agree that these Terms and Conditions of Purchase cancel all agreements between the parties to the contract that may have been made earlier as well as earlier conditions concerning our purchase from the supplier.

15.3 If provisions of these terms and conditions of purchase conflict with provisions in individual contracts (in particular supplementary agreements with suppliers) including their appendices or general terms and conditions of the parties, the following hierarchy of standards shall apply: Provisions in individual contracts or their appendices take precedence over the provisions of these Terms and Conditions of Purchase. These Terms and Conditions of Purchase take precedence over all provisions in other general terms and conditions of business (of the Supplier), provided that such provisions have expressly become an integral part of the contract.

15.4 The law of the Federal Republic of Germany shall apply exclusively, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and excluding the referral norms of international private law.

15.5 If the supplier 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 Troisdorf. The same applies if the supplier is an entrepreneur according to § 14 German Civil Code. In all cases, however, we are also 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 supplier’s general place of jurisdiction. Priority statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.