1.1 Scope of Application as regards the Subject Matter
These General Terms and Conditions of Purchasing (TCP) shall apply to any delivery and service provided in Germany and abroad to any company of the DBW Group (DBW), unless expressly otherwise agreed with Supplier. The present TCP shall become part of any future contracts concluded with Supplier without expressly making reference to them.
1.2 Deviations from the TCP, Conflicting Conditions
a) General terms and conditions of Supplier which are conflicting with the TCP of DBW shall only apply to the extent to which DBW has expressly approved them in writing. This shall also apply if Supplier’s conditions claim exclusive application or such conditions are to be included through a subsequent declaration of intention by Supplier, without DBW having expressly rejected them again.
b) If the contract is executed without the TCP of DBW prevailing pursuant to the applicable legal provisions as a whole or with regard to individual clauses, the contracting parties’ conditions which are not conflicting shall take precedence over the legal provisions.
1.3 Partial Invalidity
If any individual provision of these TCP is invalid in part or as a whole, the validity of the other provisions or the other parts of such provision shall not be affected.
The German Civil Code shall apply to any legal relations between DBW and its Suppliers as the law of the Federal Republic of Germany.
3.1 International Jurisdiction
Any legal dispute between DBW and its Suppliers shall be subject to the exclusive international jurisdiction of the German courts.
3.2 Place of Jurisdiction
The court in which the company of the DBW Group using this TCP has its registered office shall have jurisdiction, provided that Supplier is a merchant, legal person under public law or special funds under public law. However, DBW may enforce its claims against Supplier at the latter’s registered office.
Contract Conclusion, Place of Performance
4.1 Formal Requirement, Commitment to the Offer
Any purchase order by DBW shall be made in writing or in text form to become effective. DBW may revoke any purchase order placed by it without charge, unless Supplier confirms the purchase order within two weeks of its receipt without any change.
4.2 Amendments to the Contract
Any amendment or modification of the contract shall be made in writing or in text form to become effective.
4.3 Place of Performance
The place of performance for Supplier’s obligations to perform the contract shall be the respective delivery address specified by DBW.
Delivery Period, Consequences of Delays
5.1 Importance of Deadlines
Agreed deadlines for the deliveries and the services shall be binding. If any delays have to be expected or have occurred Supplier shall immediately inform DBW in writing.
5.2 DBW’s Remedies
If Supplier does not effect delivery or provide the services within a subsequent reasonable deadline fixed by DBW either, DBW may reject acceptance without any warning notice that it withdraws from the contract or claims damages for non-performance. DBW may also withdraw from the contract if Supplier is not responsible for the delay. Any additional costs incurred by DBW due to Supplier's default, including but not limited to any required purchases made otherwise for this reason shall be at Supplier's expense.
5.3 Contractual Penalty
DBW reserves the right to demand a contractual penalty agreed in the individual case for improper performance (Section 341 BGB [German Civil Code]) until final payment is effected.
6.1 Fixed Price
The agreed prices shall be fixed prices.
6.2 Supplier’s expenditure
The prices shall include any expenditure incurred by Supplier in connection with the deliveries and services to be provided by it, including but not limited to the packing and shipping costs including any transport insurance. If DBW exceptionally declares to assume the packing costs they shall be invoiced at cost price which must be verifiable.
Invoices, Payments, Assignment of Accounts Receivable
Any invoices shall be submitted to DBW by separate mail. They must indicate DBW's purchase order number to become due.
7.2 Due Date of the Consideration, Cash Discount
Supplier’s claim for the consideration shall become payable 90 days after receipt of the goods and invoice at DBW or, at DBW’s option, after 30 days subject to a cash discount of 3 per cent. The date of payment shall be deemed the date at which DBW’s bank received the remittance order.
7.3 Declaring Effect of the Payment
Payments shall not constitute acceptance of the delivery or service as conforming to the contract. In case of a defective or incomplete delivery or service DBW may, without prejudice to other rights, retain payments on accounts receivable arising from the business relationship to a reasonable extent until proper performance is effected.
Supplier’s accounts receivable from DBW shall not be assigned to third parties without DBW’s express consent.
Import and Export Provisions, Customs
8.1 Required Information
In case of deliveries and services provided from an EU Member State other than Germany, Supplier shall indicate its EU VAT Identification No.
8.2 Customs Clearance
Imported goods shall be delivered duty paid. Supplier shall make any declarations and provide any information required within the scope of Regulation (EC) No. 1207 / 2001 at its expense, permit checks by the customs authorities and provide any required official confirmation.
8.3 Supplier's Obligation to Provide Information
Supplier shall comprehensively inform DBW in writing of any authorisation requirements for (re-)exports under German, European and US-American export and customs provisions as well as export and customs provisions of the country of origin of the goods and services.
Handling of Deliveries and Services
Supplier may only commission subcontractors with DBW’s approval, unless such subcontracting relates to the supply of marketable parts only.
9.2 Divided Performances
Call-offs shall be binding in respect of the type and the quantity of the goods called off as well as the delivery period. Any part delivery shall require DBW’s approval.
9.3 Delivery Note
Each delivery shall be accompanied by a delivery note stating DBW’s purchase order number and describing the type and quantity of the content.
The goods shall generally be delivered in customary nonreturnable standard packaging. If reusable packaging is used Supplier shall provide the packaging on loan. The return shall be at Supplier’s risk and expense.
9.5 Instruction of DBW
In case of equipment a technical description and instructions for use shall accompany the delivery free of charge. In case of software products, the obligation to supply them shall only be fulfilled when the complete (systems and user) documentation has also been handed over. Any programs especially developed for DBW shall be delivered together with the program in the source format. DBW may adapt the program in correspondence with its own entrepreneurial needs and may use it in the adapted version.
9.6 Performance on Site
If Supplier effects deliveries or renders services on DBW's business premises, Supplier shall observe the instructions given to third parties as to safety, environmental protection and fire protection as amended.
Safety and Environmental Protection
10.1 Prevention of Hazards
The deliveries and services provided by Supplier shall comply with the legal provisions, including but not limited to the safety and environmental protection provisions including the German Regulation on Hazardous Substances, the German Electrical and Electronic Equipment Act [ElektroG] and the safety recommendations of the competent German professional bodies or associations such as VDE, VDI, DIN. Relevant certificates, test certificates and proofs shall be included in the delivery free of charge.
10.2 Material Requirements
Supplier shall obtain information on the current status of any directives and laws applicable to its components in respect of material restrictions and shall comply with such directives and laws. It shall not use prohibited substances. It shall state hazardous substances and substances to be avoided on its specifications pursuant to the applicable laws and directives. The safety data sheets shall be submitted already along with the offers and with the delivery note (drawn up at least in German or English) at each first delivery, if applicable. Any information as to any excessive use of restricted substances and the delivery of prohibited substances shall be provided to DBW immediately.
10.3 Accident Prevention
Supplier shall have sole responsibility for the observance of accident prevention regulations in effecting deliveries and providing services. Any safety devices or instructions by the manufacturer required accordingly shall be included in the delivery free of charge.
Passing of Risk, Acceptance, Supplier’s Property Rights
11.1 Point of Time at which the Risk Passes, Requirement of formal Acceptance
Irrespective of the agreed pricing, the risk shall pass to DBW upon receipt at the delivery address specified by DBW in case of delivery without installation or assembly and upon successful completion of the formal acceptance by DBW in case of delivery with installation or assembly. The commissioning or use of the delivery or the service shall not replace DBW’s formal declaration of acceptance.
11.2 Reservation of Title
The title to the delivered goods shall pass to DBW upon payment. Any overall or extended reservation of title shall be excluded.
Obligation to Inspect and Give Notice of Defect, Time and Effort of Inspection
12.1 Inspections, Time for giving Notice of Defect
Incoming goods shall be inspected for obvious defects. DBW shall give notice of any hidden defect as soon as they have been discovered pursuant to the circumstances of the proper course of business. Supplier shall waive raising the objection of belated notice of defect for any defect for which notice has been given within fourteen days.
12.2 Consequences of Defects for Payments Made
If DBW returns defective goods to Supplier, DBW may provisionally charge back the invoiced amount to Supplier plus an expense lump sum of 5 % of the price of the defective goods. DBW reserves the right to prove higher expenses. Supplier reserves the right to prove that lower expenses or no expenses have been incurred.
Warranty of Title and Quality, Limitation Period
13.1 Supplementary performance, rectification of defects
a) Defective deliveries shall immediately be replaced by deliveries free of defects and poor services shall be performed again free of defects. In case of any fault in construction or design, DBW may claim the rights provided in Section XIII.2 immediately.
b) Any supplementary performance of defective deliveries or poor services shall require DBW’s approval. During the period in which the item to which the delivery or the service relates is not kept safe by DBW, Supplier shall bear the risk of accidental loss, destruction or deterioration.
13.2 Failure of Justified Rectification of Defects
If Supplier fails to remedy the defect within a subsequent reasonable period fixed DBW may at its option withdraw from the contract or reduce the consideration and additionally claim damages.
13.3 Remedy by DBW itself
In urgent cases (including but not limited to hazards to the operational safety or prevention of any exceptionally high damage), to remove inferior defects as well as in cases of Supplier’s delay of remedying a defect, DBW may remedy the defect and any resulting damage itself or by a third party at Supplier’s expense, after giving advance notice to Supplier and after expiry of a short period of grace adequate to the situation. This shall also apply if Supplier is in delay of delivery or performance, and DBW must remedy defects immediately in order to prevent its own delay in delivery.
If Supplier has to effect delivery or render services in compliance with plans, drawings or other special specifications by DBW, Supplier shall expressly warrant and represent that the delivery or service is in compliance with the specifications. Should the delivery or service deviate from the specifications, DBW may claim the rights set forth in Section XIII.2 immediately.
13.5 Limitation Period
The period of limitation for DBW’s claims arising from defects of quality shall be 36 months as of the passing of risk according to section XI.1. The period of limitation for DBW’s claims arising from defects of title shall be ten years as of the passing of risk according to Section XI.1. The period of limitation shall be suspended for the period commencing upon the sending of DBWs notice of defect and ending upon the fulfilment of DBW's claim arising from any defect.
13.6 Legal Remedies
DBW's statutory rights shall remain unaffected in any other respect.
If Supplier’s deliveries or services which are of an essentially identical or similar nature are defective or late again after giving a warning notice in writing, DBW is entitled to withdraw from the contract with immediate effect. The right of withdrawal shall also cover any delivery and service which Supplier is still obliged to provide to DBW under this contract or another contract in future.
Infringements of Property Rights, Indemnity in Case of Defects of Quality and Title
15.1 Supplier shall guarantee that any item of the delivery or service does not infringe intellectual property rights of third parties (patents, trade marks, copyrights, other property rights), provided that it is responsible for such infringement.
15.2 Supplier shall indemnify DBW within the scope of its liability according to Section 15.1 from any claim which any third party may enforce against DBW irrespective of its legal basis for a defect of title or quality or any other defect in any of Supplier’s products. Supplier shall reimburse DBW for the costs required for any corresponding litigation in relation to third parties.
Technical Documentation, Tools, Manufacturing Equipment
16.1 The technical documentation, tools, company standards sheets, manufacturing equipment etc. shall remain the property of DBW. These items including any duplicates made shall be returned to DBW immediately after execution of the purchase order without request; insofar Supplier shall not claim a right of retention. Supplier may use the aforementioned items only for executing the purchase order and shall not permit third parties to use them or make these items available to them otherwise. The aforementioned items shall only be duplicated to the extent as required for the execution of the purchase order. Any intellectual property rights (cf. 15.1) held by DBW shall remain DBW’s property.
16.2 If Supplier produces some or all of the items set forth in Section 16.1 sentence 1 for DBW at DBW’s expense, section 16.1 shall apply correspondingly, and DBW shall become the (co-)owner in proportion of DBW's share in the production costs upon their production. Supplier shall keep these items safe on behalf of DBW free of charge; DBW may at any time acquire its rights to the item by compensating the expenses not yet recouped, and request the delivery of the item.
16.3 Supplier shall maintain, service and repair any damage caused by normal wear and tear to the items mentioned in Section 16.1 and Section 16.2 sentence 2 above free of charge. If Supplier commissions a subcontractor with the production of tools and patterns for executing DBW's purchase order, Supplier shall herewith assign its claims against the subcontractor for transfer of the title to the tools and patterns to DBW.
Provision of Material by DBW
17.1 Any material provided by DBW shall remain DBW’s property and Supplier shall keep such material separately from Supplier’s other items exercising the care of a prudent businessman free of charge and shall identify them as DBW’s property. The material shall only be used for executing DBW’s purchase order. Any damage to the provided material shall be replaced by Supplier.
17.2 If Supplier processes or transforms the provided material, such activity shall be made on behalf of DBW. DBW shall immediately become the owner of the new items created thereby. If the provided material is only a part of the new item, DBW shall be the co-owner of the new item in proportion to the value of the provided material included therein.
Supplier’s Confidentiality Obligation
18.1 Supplier shall treat any details, which are obviously not of a commercial and technical nature and of which it becomes aware through the business relationship, as confidential and shall not disclose them to third parties.
18.2 Any manufacture for third parties, any display of products especially made for DBW, in particular according to plans, drawings or other special specifications by DBW, any disclosure regarding the purchase orders and performances as well as any reference to this purchase order to third parties shall require DBW's prior written consent.
DBW stores personal data which are related to the business relationship with Supplier and transmits these data also to other companies of the DBW Group.