General Terms and Conditions of Purchase (GTCP)
ILS Speth GmbH, Industriestr. 21–23, 42327 Wuppertal, Germany, (the Client)
I. General Provisions
1. The following Terms and Conditions of Purchase of the Client shall apply exclusively. The Client does not recognize any deviating provisions of the Contractor.
2. These Terms and Conditions of Purchase shall apply exclusively even if the Client orders, accepts, or pays for the deliveries/services while being aware of terms and conditions of the Contractor that conflict with or deviate from these.
II. Orders
1. Orders are binding only if they are placed in writing by the Client. Verbal agreements, collateral agreements, or subsequent changes and other modifications require written confirmation by the Client to be effective.
2. Quotations serve as the binding basis for the subsequent deliveries/services during their specified validity period. If the quotation does not specify a validity period, a minimum validity period of three months from the date of receipt shall apply.
3. Unless otherwise agreed in writing, quotations are provided free of charge.
4. In business dealings with the Client, the Contractor must provide at least the following information: order number, unloading location, complete part/object description, quantities and units of measure, as well as the VAT ID number in the case of imports from the EU.
III. Prices
All prices are fixed prices and include all services provided by the Contractor to fulfill its contractual obligations.
IV. Scope of Delivery and Services, Ownership, and Rights of Use
1. The Contractor shall transfer to the Client unencumbered ownership of the subject matter of the contract. This includes, in particular but not exclusively:
- The Contractor must transfer to the Client ownership of all technical documentation (including that suitable for subcontractors) as well as any other documentation required for manufacturing, maintenance, and operation. Unless otherwise agreed, all documentation must be written in German.
- With respect to all deliverables and services eligible for intellectual property protection, the Contractor warrants to the Client that it holds a non-exclusive and irrevocable right of use, unrestricted in terms of territory, time, and content, for all known and unknown types of use, and grants this right to the Client.
- The Contractor guarantees that it strictly complies with the provisions of the German Employee Invention Act (ArbnErfG) and claims relevant inventions within the prescribed time limits.
2. If the Contractor must deviate from the agreed scope of services, additional claims or changes to the schedule may only be made with the Client’s written consent.
The Client is entitled, but not obligated, to accept shortfalls in quantity, unless the parties have agreed otherwise. The Client is further entitled to reject excess deliveries at the Contractor’s expense, risk, and cost.
V. Quality Assurance
The Contractor warrants that it maintains a quality assurance system that is appropriate in nature and scope and corresponds to the state of the art. Records of its quality inspections must be made available to the Client upon request.
VI. Deadlines and Dates
1. Agreed-upon dates are binding; in the event of non-compliance, the statutory provisions shall apply. The Client is entitled to reject early deliveries.
2. Upon becoming aware of delivery delays, the Contractor must immediately notify the Client in writing of the reasons for the delay and its expected duration.
3. The acceptance of a delayed delivery without objection does not constitute a waiver of the Client’s claims for damages.
VII. Performance and Storage
1. If the parties have agreed to Incoterms, the current version shall apply to the extent that it does not conflict with the provisions of these General Terms and Conditions of Purchase or other individual agreements. Unless otherwise agreed, delivery shall be made “Delivered/Performed/Duty Paid” in accordance with Incoterms to the place of performance specified in the order.
2. Deliveries/services must be made to the specified address. Delivery/performance to a receiving location other than that specified by the Client shall neither constitute fulfillment nor result in a transfer of risk to the Client, even if that location accepts the delivery/service. Additional costs resulting from incorrect delivery shall be borne by the Contractor.
3. Partial performance is not permitted without the Client’s express consent.
4. If weighing is necessary, the values determined by the Client’s calibrated scales shall be decisive.
5. If the Contractor claims the right to the return of the required packaging materials, this must be expressly agreed upon between the parties. Unless otherwise noted, the Client shall dispose of the packaging at the Contractor’s expense, and the Contractor’s claim to its return shall lapse.
6. The Contractor warrants that all applicable legal regulations will be fully complied with during transport.
VIII. Performance of Services
1. The Contractor is not entitled to transfer contractual obligations, in whole or in part, to third parties without the Client’s consent.
2. If the contract is performed by third parties, the Contractor is obligated to name its vicarious agents to the Client upon request.
3. With the exception of claims that have been legally established or acknowledged, the Contractor is not entitled to assign contractual or statutory claims against the Client.
IX. Termination
1. The Client is authorized to terminate the contract in whole or in part. In the event of termination, the Client is obligated to pay for all services rendered up to that point in accordance with § 649, sentence 2 of the German Civil Code (BGB). Any further claims by the Contractor are excluded.
2. The Client has the right to terminate the contract without notice for good cause, in particular if a significant deterioration in the Contractor’s financial situation occurs or is imminent and this jeopardizes the Contractor’s performance of the contract.
X. Invoicing/Set-off
1. The Contractor may only set off claims that are undisputed or have been legally established.
2. A claim becomes due only upon issuance of an invoice in accordance with § 14 of the German Value-Added Tax Act (UStG). A properly issued invoice becomes due 30 days after the service has been rendered and the invoice has been received.
XI. Liability for Defects
1. The Contractor warrants, regardless of fault, that its delivery/service meets the agreed-upon specifications and fulfills its intended purpose. The Contractor must reimburse the Client for any expenses incurred due to defective services.
2. The Client’s claims for defective delivery/service shall begin to be barred by the statute of limitations at the earliest upon complete performance of the service or upon acceptance.
3. Claims for defects shall become time-barred no earlier than 36 months after delivery or performance, unless longer statutory limitation periods apply. For new deliveries or services, the limitation period shall begin anew; in the case of rectification, this shall apply only if the defect is the same or if the issue stems from a defective rectification.
4. Provided that the commercial duty to inspect and give notice of defects under § 377 HGB applies, the Client shall notify the Contractor of obvious defects within ten (10) days of delivery. The Client shall notify the Contractor of defects that become apparent only later within ten (10) days of their discovery. The timeliness of the notice of defect shall be determined by the date the notice is sent by the Client.
5. The Contractor waives the right to object to late notices of defect (Sections 377, 381(2) of the German Commercial Code (HGB)) for all defects other than obvious ones.
6. The Contractor is obligated to remedy all defects reported within the prescribed time limit immediately and at no cost to the Client. The Contractor shall bear all costs associated with remedying the defects, including all incidental expenses, in accordance with statutory provisions. If the Contractor defaults on its obligations to remedy defects within a reasonable period set by the Client, the Client may remedy the defects itself by way of substitute performance and demand reimbursement of costs from the Contractor, along with any necessary advance payments. The statutory rights to rescission, reduction, or damages remain unaffected.
XII. General Liability, Insurance
1. Unless otherwise provided for in these General Terms and Conditions of Purchase, the Contractor shall be liable in accordance with statutory provisions.
2. The Contractor must maintain, at its own expense, adequate liability insurance for damages for which it and its agents and vicarious agents are responsible. Proof of the amount of coverage per claim must be provided to the Client upon request. The Contractor’s contractual and statutory liability remains unaffected by the scope and amount of its insurance coverage.
XIII. Representations and Indemnifications
1. The Contractor represents that it complies with the provisions of the Minimum Wage Act (MiLoG) and indemnifies the Client against claims by third parties, in particular those under § 13 MiLoG, upon first request. Likewise, the Contractor must ensure that mandatory obligations to pay contributions to social security agencies, employers’ liability insurance associations, and other institutions—such as the joint institutions of the collective bargaining parties specified in § 8 AEntG—are fulfilled.
2. When selecting subcontractors or staffing agencies, the Contractor shall verify compliance with the prerequisites set forth in XIII.1 and shall require them in writing to comply with these requirements. In addition, the Contractor must obtain written confirmation from them that they will require any subcontractors or staffing agencies they engage to comply with these requirements.
3. Should third parties assert claims against the Client in connection with the Contractor’s deliveries or services, the Contractor shall indemnify the Client in full against such claims upon first request. The Contractor is further obligated to reimburse the Client for reasonable attorneys’ fees and court costs.
4. Furthermore, the Contractor shall be liable to the Client for any damages incurred by the Client as a result of the Contractor’s culpable failure to comply with the obligations set forth in XIII.1 and XIII.2.
5. Illegal employment of any kind is prohibited. The Contractor undertakes to comply with all applicable legal regulations as well as international standards of ethical conduct.
XIV. Jurisdiction
The place of jurisdiction shall be the Client’s registered office or, at the Client’s option, the Contractor’s general place of jurisdiction.
XV. Governing Law
All legal relationships between the Contractor and the Client shall be governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980, as amended from time to time.
XVI. Advertising and Confidentiality
1. The use of the Client’s company name is prohibited, as is the use of its word marks or word-and-design marks. The Client may be named as a reference customer only with the Client’s written consent.
2. The Contractor guarantees to maintain absolute confidentiality regarding all business processes, facilities, documents, and equipment at the Client’s and its customers’ premises that become known to the Contractor in connection with its work for the Client, even after the termination of the contractual relationship. The same obligation applies to the Contractor’s agents and vicarious agents; the Contractor must ensure that they are bound by this obligation accordingly.
XVII. Data Protection
Pursuant to Section 33 of the Federal Data Protection Act (BDSG), the Client hereby notes that it will store the Contractor’s data in accordance with the Federal Data Protection Act for the purpose of contract performance.
XVIII.
To the extent that these terms and conditions are also made available to the Contractor in another language, the German version shall prevail in case of doubt.
XIX. REACH Clause / RoHS Clause
1. For all substances, preparations, and articles delivered to the Client, the Contractor must comply with the requirements and measures resulting from the REACH Regulation (1907/2006/EC).
2. The Contractor must ensure that the contractual items to be delivered by it fully comply with the requirements of the RoHS Directive (2011/65/EU) as amended from time to time.
XX. Severability Clause / Text Form
Should individual provisions of these terms and conditions be or become invalid in whole or in part, the remaining provisions shall remain fully effective. The same applies to the respective contract. To the extent that the foregoing terms and conditions require that declarations by the parties be made in writing, the text form shall also suffice, unless the law expressly requires the written form.
Effective: January 2017