§1 Field of application
(1) These terms and conditions of purchase apply only to traders if the contract comes under the operation of your business, legal entity under public law or special fund under public law.
(2) Our purchase conditions apply exclusively. Unless expressly agreed in writing, we do not recognize conflicting or diverging conditions of the supplier or firm accepting the order (seller). Our purchase conditions continue to apply even if we accept or pay for the supplier’s delivery without reservation in the knowledge of conditions of the supplier that conflict with or diverge from our purchase conditions.
(3) These terms and conditions of purchase shall also apply to all future trading with the supplier, insofar as they are similar transactions, without us having to refer to them again in each individual case.
§ 2 Orders
(1) Unless otherwise expressly agreed, offers and quotations are binding and shall be provided free of charge. Unless separately agreed in the individual case, we shall not assume responsibility for any costs and shall not pay for visits, planning and other services rendered in advance by the seller in connection with offers made.
(2) Our orders are made exclusively in writing. Verbal agreements, contracts and orders as well as changes, additions or cancellations of contracts or orders will be confirmed in detail in writing by the parties. The seller should inform us of evident mistakes (eg. typing or calculation errors) or the incompleteness of the order, including those found in the order documents, before acceptance of the goods.
§ 3 Prices, packaging, delivery, transfer of risk and terms of payment
(1) The prices stated in our order are fixed prices. They include all expenses in connection with the deliveries and services to be provided by the seller. Unless otherwise agreed, prices are for goods DAP (delivered at place) in accordance with Incoterms 2010, including packaging plus VAT. For deliveries outside the EU, the term DDP (delivered duty paid) in accordance with Incoterms 2010, shall also apply.
(2) Prices are generally valid from the order date.
(3) In the case of "ex works" pricing (EXW in accordance with Incoterms 2010), the seller shall arrange for the least expensive and most suitable transport, insofar as we ourselves do not collect the goods or have them collected by a transport company. The seller shall bear any additional costs that have not been agreed with AGOFORM.
(4) The seller must follow our packaging instructions, in addition to adhering to international packaging, labelling and transport regulations. Deliveries must include a detailed delivery note with the details of the order. The seller shall bear any costs for the disposal of packaging.
(5) Unless otherwise agreed, subject to a 3% discount, we will pay within 3 weeks of full performance and receipt of the invoice, or alternatively within 30 days of full performance and receipt of the invoice. Invoices are to be submitted to us separately in due form, together with all associated documents and data, following delivery. Where invoices need to be corrected, they shall be deemed to have been received as of the date on which they are correct.
(6) The seller shall not assign, pledge, encumber, or license any rights under the contracts concluded with us without our prior written consent. The right of set-off is only available to the seller on the basis of a legally valid or counter-claim recognized by us. The seller shall not have the right to withhold goods. We shall be entitled to set-off and to withhold payments to the extent that this is permitted by law.
(7) The seller bears the risk until we or our agent have accepted the goods at the location where the goods are to be duly delivered.
(8) In the absence of an agreement on delivery/transport, the seller must deliver the goods, "free on the ramp" to AGOFORM GmbH, at Gewerbestr. 27, 32584 Löhne, Germany, within the following business hours: Mon. to Thurs.: 07:00 - 15:00 and Fri.: 07:00 - 13:00.
§ 4 Delivery period and delays
(1) The performance period shall start from the date of the order. Agreed deadlines and dates for the provision of services shall be binding. The date of receipt of goods at the specified place of receipt or use shall be decisive in determining whether or not deliveries have been made on time. For machines, capital goods and services, the completeness of the services provided is decisive. The seller must request documents to be provided by us in good time for the order to be carried out.
(2) The seller is not entitled to partial services. We are entitled, but not obliged, to accept partial services from the seller.
(3) If the seller is unable to meet the agreed delivery date or agreed performance deadline, it must notify us in writing without delay, stating the reasons and the expected delay. Compliance with this duty of disclosure does not release the seller from its obligations to meet its performance obligations in due time.
(4) If the performance is delayed beyond the agreed delivery date for reasons for which the seller is responsible, the seller shall be required to pay damages. If the seller does not meet the agreed delivery date, we shall, after a reasonable extension period without fruition, be entitled to withdraw from the contract and, if the seller is responsible for the delay, be entitled to demand damages instead of performance or the reimbursement of futile expenses. The statutory provisions on dispensing with a reminder remain unaffected by this.
(5) In the event of a delay in performance, the claim for the fulfilment of the delivery contract shall only be extinguished with the express written assertion of a claim for damages in place of the performance, with the payment of the compensation, or with a statement by the seller recognizing the claim for damages and confirming that compensation will be paid.
(6) In the event of a delay in delivery, we shall be entitled to demand a flat-rate in compensation for delay from the seller, of 0.15% of the order value per working day, but not more than 5% in total of the value of the order. In addition, we reserve the right to assert further damages caused by the delay, extending beyond the contractual penalty. In all cases, if the delivery date is not met, this will be held to be a delay. The seller has the right to prove that no or substantially lower damages than asserted by us have been incurred as a result of the delay.
§ 5 Warranty, deficient delivery and product liability
(1) The seller warrants that the delivered goods are of the contractually agreed or otherwise required quality and that the guarantees that had been given have been fulfilled.
(2) The seller further warrants that the goods in each case comply with the recognized state of the art, that they comply with the agreed quality standards and are free of defects and any third-party rights.
(3) We reserve the right to assert our statutory warranty rights in full (supplementary performance, withdrawal from the contract, reduction in price, damages). In all cases of deficiencies in deliveries, we shall be entitled, at our discretion, to demand rectification of the deficiency or replacement of the goods (supplementary performance) from the seller. We are entitled to return the goods complained of at the seller’s expense. After unsuccessful expiration of a reasonable period of time specified by us for supplementary performance, we shall be entitled to remedy the defect ourselves, to have it remedied by third parties, or to obtain a replacement of the defective delivery and to demand reimbursement of the expenses and costs incurred from the seller, unless the latter is entitled to refuse supplementary performance. We shall also have this right to remedy defects even if we do not set an extension period for the seller to do this, if, in cases of particular urgency, greater damages threaten in relation to the defect and if it is no longer possible to inform the seller of the defect and the damages that threaten and to set him an, albeit short, deadline for its own remedial action, provided that we notify of the seller that we are rectifying the defect ourselves.
(4) Insofar as the law does not provide for a longer period for warranty claims and rights, the warranty period shall be two years. For new parts delivered by the seller in the course of supplementary performance due to a defect or re-provided services, the warranty period begins again with the subsequent delivery, unless the seller denies the defect and expressly only carries out the supplementary performance out of goodwill. This also applies in the case of a reworking of a delivery or service, whereby the warranty period begins again only with regard to the same defect or the consequences of a lack of subsequent improvement of a service.
(5) We will only check incoming goods for obvious defects and transport damage. We reserve the right to carry out a further examination of incoming goods. We will complain of such defects without delay. Afterwards, we would make a complaint as soon as such defects are determined in the regular course of business. Inasmuch, the seller expressly waives the objection of delayed notification of deficiencies.
(6) We shall pass on any claims arising from product liability regulations to the seller insofar as they have been caused by the seller through products it has delivered. In this context, the seller is also obliged to reimburse us expenses in accordance with ss. 683, 670 BGB, which we incur as a result of our recalling products as a precautionary measure.
§ 6 Retention of title
We acknowledge a simple retention of title by the seller, provided that we are entitled to process, combine, mix and resell the processed or unprocessed goods in the ordinary course of business. We do not recognise an extended or prolonged retention of the title to goods.
§ 7 Confidentiality and property rights
(1) The seller shall treat the conclusion of the contract, the order and all related commercial and technical details as being confidential, and may only refer to the business dealing with us in advertising material if we expressly consent to this. The seller undertakes to treat all non-public technical or commercial details, which become known to him through the business dealings, as being business secrets and only to pass on such information insofar as this is indispensable for the execution of the respective order or assignment. This non-disclosure obligation shall continue to apply after the end of the respective contract. The seller’s subcontractors and employees must also be placed under a similar obligation. We will handle the seller’s personal data in accordance with the relevant legal provisions.
(2) Documents, drawings, data, software, materials and items, such as samples, models and tools, which we make available to the seller for the execution of the order remain our property. They must be secured against unauthorized inspection or use and handed over to us, without delay, at our request, and with the remaining delivery at the latest.
(3) Documents, drawings, data, software, materials or objects, such as samples, models and tools, which are our property in accordance with the preceding paragraph or which the seller prepares based on our information, documents or calculations, may only be used for other purposes, duplicated, recycled or made accessible to third parties with our prior consent; any copies made by the seller must be destroyed immediately.
(4) If and insofar as the delivery and use of the delivery item or service infringes property rights or other rights of third parties in the Federal Republic of Germany or, insofar as the seller is informed of this, in the country of destination, the seller shall be obliged to compensate us for all resulting costs, expenses and damages and to release us from third-party claims, if the seller is responsible for the infringement. We are entitled to demand that the seller obtains the necessary approval from the respective holder of the infringed property and other rights, for the delivery, commissioning, use, resale or other intended purpose, in line with the foreseen use and application of the item to be supplied as part of the order or service, unless it is unreasonable for the seller to obtain approval due to the costs involved. Its responsibility is not affected by the acceptance or approval of drawings and/or samples submitted by the seller.
(5) Without our express consent, the seller shall not be entitled to publicise our company or the business dealings with us, or to otherwise name us to third parties.
§ 8 Contractual penalty
For each case of culpable breach of non-disclosure obligations under section 7.1 and prohibition of use, recovery and distribution as provided for in section 7.3 of these General Purchase Conditions, we shall be entitled to a contractual penalty of 1% of the contract price but not more than a total of 5% of the contract value. In addition, we reserve the right to additionally claim damages caused by the breach extending beyond the level of the contractual penalty.
§ 9 Environmental protection
The seller gives an assurance that it is in compliance with all environmental laws and regulations when procuring and/or manufacturing the delivery items.
§ 10 Force majeure
Force majeure, stoppages for which we are not responsible, riots, labour disputes, official measures and other unavoidable events shall release us from the obligation to accept goods on time, for the time period that they last. During such events, and during the two weeks following them, we shall be entitled, without prejudice to our other rights, to withdraw from the contract in whole or in part, to the extent that this will result in a significant reduction in our needs.
§ 11 Place of performance, jurisdiction and applicable law
(1) Unless otherwise agreed, the place of performance for the delivery or service obligation is the dispatch address or dispatch office specified by us; for all other obligations of both parties, the place of performance shall be our place of business, namely Löhne in Germany.
(2) The jurisdiction shall be that of our place of business, which is Löhne in Germany. However, we are entitled to take proceedings against the seller at its general place of jurisdiction.
(3) If the supplier discontinues its payments or if there is an application for insolvency proceedings regarding its assets, or a court or out-of-court settlement procedure, we shall be entitled to withdraw from the part of the contract that is yet to be fulfilled.
(4) The order or assignment shall exclusively be subject to the law of the Federal Republic of Germany. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention) shall not apply.
(5) Should these purchase conditions or the contracts concluded with the seller be or become wholly or partially invalid or impracticable, this shall not affect the validity of the remaining provisions. In place of invalid or impracticable provisions, ones that come closest to what the parties would have wanted if they had considered this point shall apply. The same applies if there is a gap in the contract.
Version of: August 2018