General Terms and Conditions of Purchase of ECKART GmbH
(as of February 2010)
1. Field of application, Placing of Orders, Varying of Conditions
1.1 These General Terms and Conditions of Purchase (hereinafter called “General Purchase Conditions”) shall be valid for all contracts to which the regulations governing purchase pursuant to the German Civil Code (BGB) and the German Commercial Code (HGB) apply. These General Purchase Conditions shall also apply to all future contracts. This shall be the case even if, in the event of future orders from our suppliers and contractors (hereinafter called "Seller"), no express reference is made by us to these General Purchase Conditions. These General Purchase Conditions shall apply in addition to any supplementary special conditions agreed upon individually. Any agreements which deviate from these General Purchase Conditions as well as any supplementary agreements must be in writing. This shall also apply to any amendments to this clause requiring written form.
1.2 Our General Purchase Conditions shall apply exclusively; any conflicting terms and conditions of the Seller shall not apply even if we do not expressly object to such. Differing terms and condition shall only apply if we expressly accept such terms and conditions in writing. Our General Purchase Conditions shall apply even if we unconditionally accept goods/services provided by the Seller although we know that Seller’s sale and delivery terms and conditions conflict with or deviate from these General Purchase Conditions. Neither the failure to object thereto nor payment or acceptance of goods shall constitute a recognition of any third-party terms and conditions.
1.3 In the event that the Seller makes a delivery in excess of the ordered quantity the contract shall not be deemed to have been modified; excess deliveries shall not be reimbursed separately. The Seller may demand the return of any excess delivery at its own expense at any time. At our request the Seller shall take back any excess delivery without undue delay. In such case the Seller shall reimburse us for the storage and maintenance costs incurred in the period from our request for collection and the actual collection of the excess delivery. If the goods/services are a commercial transaction for the Seller and, if the Seller is in delay in collecting the excess delivery, we may dispose of such at our discretion in accordance with § 373 HGB.
1.4 These General Purchase Conditions shall only apply with respect to Sellers which are enterprises in terms of §14 BGB.
2. Offer and Order
2.1 Only written orders from us shall be binding (including fax and e-mail). This shall also apply to any subsequent supplementary agreements and/or amendments.
2.2 Acceptance of our order shall be confirmed within two weeks by way of signature on a copy of the order or a separate order confirmation, otherwise we are entitled to revoke our order. In case of delivery periods under two weeks, we waive any right to an order confirmation if the Seller delivers on our conditions.
2.3 Models, tools, printer layouts, drawings, documents etc made available by us for the carrying out of an order shall remain our property and shall be kept confidential. Without our prior permission such shall not be made available to any third party or used or copied to produce goods for any third party. Such shall be returned to us without undue delay after completion of the order.
3. Breach of Obligations
3.1 The provisions of law regarding breach of obligations shall apply to the extent that nothing to the contrary or nothing supplementary is provided for in these General Purchase Conditions.
3.2 The Seller guarantees to provide its goods/services in accordance with the agreed specifications and the current standard business practices and to thoroughly carry out detailed checks as to the functioning and quality prior to dispatch. Furthermore, the Seller guarantees that its goods/services are of the latest state of the art and conform to all applicable provisions of law and the requirements of the authorities, employment cooperatives and trade associations. In case of the supply of machines and equipment, the Seller guarantees that they in particular comply with the regulations on the safety of equipments and products and any related regulations and bear the “CE” label. In case of the supply of hazardous goods, the Seller also guarantees that all applicable legal provisions in connection with the transport are satisfied.
3.3 We shall inspect the goods at the place of destination within our ordinary course of business. Our incoming goods inspection is limited to apparent defects. Notice of defects is regarded as provided in time if made within 8 days of delivery of the goods. Payments do not constitute a waiver of any right in relation to defects. Any goods which are subject to a complaint are accepted only on account of and at the risk of the Seller and are stored in its name.
3.4 If goods are defective, the Seller shall also be liable for any damage incurred to us in the ordinary course of business prior to the processing of the goods as a result of undetected defects in the delivered goods. In such case the Seller shall on first demand indemnify us and hold us harmless from any claims by a third party for damages.
3.5 The statutory warranty periods shall apply. The warranty period shall be extended to 10 years in the event that the Seller maliciously conceals a defect of the goods.
3.6 If the Seller provides services on our premises, it shall notify a coordinator named by us and shall agree with the coordinator as to the commencement and scope of the work. In relation thereto, the coordinator is entitled to give directions. Agents and personnel of the Seller entering our premises shall comply with the provisions of the factory rules and all other regulations, in particular the smoking prohibition and other safety and security directions. The Seller shall ensure that an only correspondingly-instructed personnel is used. In case of any damage to property or objects in the possession of the Seller brought onto our premises, we and our vicarious agents shall be liable only in cases of wilful acts or gross negligence in terms of section 10.
3.7.1 The Seller shall ensure that its deliveries comply with the provisions of the Regulation (EC) 1907/2006 for the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH Regulation).
3.7.2 The Seller shall ensure that any substances in the goods of the Seller are, if and to the extent necessary under the REACH Regulation, pre-registered or, upon expiry of the transition periods, registered, unless the substances are exempted from registration.
3.7.3 The Seller shall make available any material safety data sheets according to the REACH Regulation or the necessary information in accordance with Art. 32 REACH Regulation. Upon our request, the Seller shall also provide us with information according to Art. 33 REACH Regulation.
3.7.4 If the Seller’s registered office is not within the EU, the Seller shall provide us with the registration number after registration, at the latest upon order confirmation, if the Seller appointed an “only representative” (Art. 8 REACH Regulation) and such registration made by the “only representative” covers the agreed delivery. If an “only representative” undertook a pre-registration or registration which covers the respective delivery, the Seller shall enclose with the delivery a corresponding certificate including the “only representative’s” name and address within the EU.
3.7.5 In case the Seller breaches any of the above duties in this Article 3.7, we may at any time cancel the respective order and refuse to accept the corresponding delivery without any costs being incurred by us.
4. Delivery Dates
4.1 The delivery dates and place of performance stated in the order are binding. The deadlines for delivery shall start on the date of the order unless otherwise expressly agreed in writing.
4.2 In order to allow for, or to simplify the necessary organisational preparations (e.g. obtaining storage capacity), the Seller is not entitled to deviate from the delivery/performance dates or periods stated in the order without our prior written approval. This shall also apply to any early deliveries/performance. The due delivery of the goods to the agreed place of performance is relevant for the Seller being in compliance with the delivery/performance date or period.
4.3 The Seller shall notify us without undue delay and shall explain the reasons in case there is or could be any delay or failure of any delivery (including any partial delivery).
4.4 If the Seller fails to make the delivery in a timely manner we shall be entitled to those rights granted by law. In particular, we are entitled to claim damages instead of performance after the expiry of a reasonable subsequent deadline without any satisfaction, and to withdraw from the contract -- even in relation to the non-performed part only. If we do claim damages, the Seller may prove that it is not responsible for the breach of its duty. The above named subsequent deadline shall not be necessary if a fixed date has been agreed with the Seller. If the Seller is in delay, we have the right to claim a contract penalty of 0.5% of the net order value for each commenced week, but not exceeding 5% of the net order value, and/or we may also withdraw from the contract. Any further rights, in particular damages are reserved, however taking into account the contract penalty. The contract penalty shall not apply if the Seller can prove that no damage or substantially less damage resulted; in the latter case we may claim compensation for the damage actually suffered.
5. Transport and Packaging
5.1 Delivery shall be at the expense of the Seller to the place of receipt named by us. If -- as an exception to the general rule -- it is expressly agreed that we will bear the costs of freight, the Seller shall use the means of transport selected by us, and otherwise the least expensive method of transport and delivery.
5.2 Risk shall transfer upon acceptance at our place of receipt.
5.3 Packaging is included in the agreed purchase price. If anything to the contrary is agreed as an exception to the general rule, the Seller shall charge the packaging separately at cost price and in such cases the Seller -- insofar as this is reasonable -- shall use the packaging determined by us. The Seller shall in any case ensure that the packaging protects the goods from damage. If we return the packaging, which we are always entitled to do, at least two-thirds of the calculated value of the packaging shall be credited, provided that the packaging has been charged separately.
5.4 Partial deliveries by the Seller are not permitted unless such is expressly agreed with us at the time of ordering or subsequently.
Invoices, delivery notes and packing notes of the Seller shall be enclosed in each delivery in duplicate. This documentation must contain:
- order number and material number
- the name of our department making the order and the date of order
- quantity and quantity units
- gross, net and, if applicable, charged weight
- article description with our article number
- remaining quantity in cases of part delivery
- insofar as such is agreed, work certificates and analysis certificates
- in addition, for deliveries of hazardous goods, a safety and security data sheet in accordance with EC directives 91/155/EC and 1999/45/EC and the respective applicable compliance guidelines, as well as an information sheet in accordance with hazardous goods regulations, as well as specific advice as to handling and storage.
Any resulting extra costs as well as the results of any delays caused by incorrect or omitted information shall be borne by the Seller.
7.1 If not expressly agreed otherwise, the agreed prices are fixed prices excluding value added tax (VAT). Insofar as the Seller reduces its prices generally, it shall transfer such reductions to us. Unless expressly agreed in writing otherwise, all offers, quotations and other price calculations made by the Seller shall not be reimbursed by us.
7.2 The Seller undertakes not to offer us any less advantageous prices or conditions than those granted to other buyers, if and to the same extent such buyers offer similar or equal conditions in any particular case.
8.1 Invoices shall be issued separately for each order and sent to the following address:
Eckart GmbH, Accounts Office (Rechnungsstelle), Güntersthal 4, 91235 Hartenstein.
8.2 Payment shall be made upon receipt of the proper invoice and acceptance of the goods, these being free of defects - the period shall commence on the later date in each case - within 14 days with 2% discount or net within 15 days upon the expiry of the month following the invoice.
9. Assignment and Set-off
9.1 The rights and duties arising from the contract shall not be transferred by either contract party without the consent of the other party. This shall not apply to the assignment of rights to collect accounts payable. We may, in addition, assign any claims to our affiliated companies; the Seller shall be informed thereof and may withdraw from the contract.
9.2 Any set-off by the Seller of counter-claims or claim of any right of retention by the Seller shall be permitted only insofar as the claim of the Seller is undisputed and due or legally binding and due.
10. Damages, Indemnification, Product Liability Insurance
10.1 We exclude any liability for a breach of a duty due to slight negligence insofar as such breach does not relate to a substantial contractual duty, personal injury or death or to a guarantee, and provided that rights under the Product Liability Act or any other mandatory law of liability are not affected. The same shall apply to any breach of duty by our vicarious agents or legal representatives.
A substantial contractual duty is any duty which protects a material contractual right of the Seller, and which right is especially protected pursuant to the contract’s contents and purpose; substantial duties also include those contractual duties which are essential for the due fulfilment of the contract and the performance of which the Seller regularly relies on and may rely on.
In case of our liability arising, we shall be liable only for typical foreseeable damage. Liability for indirect damage is excluded to the extent that we did not breach any substantial contractual duty and we, our managers or vicarious agents did not breach a duty by wilful acts or gross negligence.
10.2 Insofar as the Seller is responsible for any product-related damage, Seller shall on first demand indemnify us and hold us harmless from any claims of third parties (including reasonable court and defence costs, expenses, fees, taxes etc as well as reasonable advance payments) where the cause of such damage (in relation to us) is within the control and organisational sphere of the Seller. Within such liability for damages in the above sentence, the Seller shall also reimburse us for any expenses in accordance with §§ 683,670 BGB as well as §§ 830, 840,426 BGB arising out of or in connection with any recall action carried out by us. This shall apply in particular to any recall actions in terms of the Product Liability Act. In relation to the contents and extent of any recall actions to be undertaken, we shall notify the Seller -- insofar as such is possible and reasonable -- and give the Seller the opportunity to comment. The provisions of law concerning any regress of the company in relation to the sale of consumer goods (§§ 478 et seq BGB) and further compensation claims shall not be affected thereby.
10.3 The Seller undertakes to maintain product-liability insurance with a cover of at least 2.5 million per personal injury or property damage for the term of the contractual relationship, including any subsequent periods such as guarantee and limitation periods. Upon request, the Seller shall provide evidence of such to us; lower levels of insurance cover must be agreed to by us in any individual case. Any further rights to claim compensation shall not be affected thereby.
11. Infringement of Intellectual Property Rights
The Seller shall be liable for all infringements of intellectual property rights resulting from the use of the delivered goods in accordance with the contract. In the event that we are made subject to any third party claims in relation to the goods/services of the Seller on the basis of alleged infringement of intellectual property rights and/or breach of any retention of title claim or any other rights in rem in relation to the scope of the goods/services, the Seller shall on first demand indemnify us and hold us harmless from any such third party claims (including reasonable court and defence costs, expenses, fees, taxes etc as well as reasonable advance payments).
12. Retention of Title
Because the goods ordered by us are normally processed and/or transformed into our products and any retention of title thereby extinguishes, all goods delivered to us must be free of any such retention of title rights and third parties’ rights (such as for example pledges, other creditors’ claims arising from assignment of claims or liens or other credit securities, sale of accounts payable, hire purchase, purchase subject to retention of title etc). Any retention of title by the Seller is therefore expressly not recognised by us.
13. Force Majeure
Force majeure, employment disputes, disruption of operations through the fault of no party, civil disturbances, measures of any authority and any other similar unavoidable events which are not our fault shall entitle us -- notwithstanding our other rights -- to withdraw from the contract in whole or in part insofar as such are not short in duration and such cause a substantial reduction in our purchase requirements.
Any materials made available by us to the Seller shall remain our property. Such shall be stored separately, labelled accordingly and may be used only for our orders. The Seller shall be liable for any reduction in value or loss of such material. Any processing or transformation by the Seller shall be on our behalf. In the event that any material provided by us is processed or inseparably mixed with other objects not belonging to us, we shall acquire a right of co-ownership to the new, resulting object in proportion to the value of our material and the other materials used at the time of such processing or mixing. The Seller shall keep such objects also for us and shall label such accordingly. The purchase price includes all costs for the storage of all objects kept for us as well as any materials provided.
The Seller shall treat our orders and all related commercial and technical information as business secrets. To the extent that a separate confidentiality agreement has been concluded with the Seller, the provisions of such shall prevail insofar as nothing to the contrary has been agreed. All information made available to the Seller for the completion of our orders shall remain our property. Similarly, all documentation prepared by the Seller in accordance with our requirements shall become our property upon payment of the respective order, and such shall not be copied by the Seller or made available to any third party. All information shall be returned to us without undue delay upon first demand by us. This duty of confidentiality shall be transferred to all legal representatives, employees and other third parties used by the Seller for the completion of our orders.
16. Withdrawal and Termination
We are entitled to withdraw from or terminate the contract for important reason. Such important reason shall be -- among others -- if the Seller executes any affidavit in accordance with § 807 ZPO (Code of Civil Procedure), compulsory enforcement procedures are undertaken in relation to the assets of the Seller and such are not withdrawn within four weeks, an application that is not abusive is made for the commencement of insolvency proceedings in relation to the assets of the Seller or such insolvency proceedings are commenced or the commencement is rejected on the grounds of a lack of assets.
17. Further Obligations of the Seller
The Seller shall manufacture any good under the contract in compliance with any applicable laws and regulations on health and safety, employment conditions and environmental protection. Notwithstanding any other duties, the Seller shall observe the principles of the Code of Conduct of the ALTANA AG, which may be accessed at the following website and which will be provided free of charge upon request.
18. General Provisions
18.1 Any legal ineffectiveness of individual provisions of these General Purchase Conditions shall not affect the effectiveness of the other provisions.
18.2 This contract shall be subject to the law of the Federal Republic of Germany excluding the United Nations Convention on Contracts for the International Sale of Goods.
18.3 Place of performance shall be 91235 Hartenstein Germany
18.4 Place of jurisdiction shall be Hersbruck Germany
In accordance with the provisions of the German Federal Data Protection Act (), we hereby inform you that we operate IT systems and that data received from the Seller on the basis of the commercial relationship will be electronically recorded and stored.