GTC

 
General Purchasing Terms and Conditions for
Kunststoffverarbeitung Wimmer GmbH Company



§ 1 Scope

1. These general purchasing terms and conditions apply to all purchases including tools, machines, equipment, parts, raw materials, other materials and services of all kinds (in the future referred to as "deliverables" or "product") that occur between Kunststoffverarbeitung Wimmer GmbH (hereinafter also referred to as Purchaser) and their suppliers (hereinafter also referred to as Contractor) as long as they are businesses.  These general purchasing conditions are also applicable for all future legal relationships between the Purchaser and the Contractor, even if in individual cases these general purchasing conditions are not specifically referenced.

2. The legal relationship between the Contractor and the Purchaser is solely governed by these general purchasing conditions.  Any changes, deviations and additions require a written agreement.  Contrary or additional purchase conditions of the Contractor will only become part of the contract, if the Purchaser agrees to the changes in writing.  The unconditional acceptance and/or payment of deliverables and services do not constitute an agreement to changes in the Contractor’s conditions, even if the Purchaser is aware of them.  


§ 2 Offer – Placement of Offer – Offer Documents


1. The Offer is to be made free of charge to the Purchaser.  The Contractor is obligated to inform the Purchaser of any and all deviations from the requested product.

2. The Purchaser owns any and all rights to pictures, drawings, calculations and other supporting materials of the product. These may not be made available to third parties unless the Purchaser gives express and written permission to do so.  They may only be used for the completion of the specific Order. After completion of the Order they must be returned to the Purchaser voluntarily without specific request.  These materials must be kept confidential and secret from third parties at all times, here the rules of Section 9 paragraph 4 apply. 


§ 3 Prices – Payment Terms

1. The prices listed in the Order and/or on the Purchaser’s order confirmation are final and binding. Unless otherwise agreed upon in writing, the prices include all the Contractor’s costs i.e. the material costs, use of equipment, travel, transportation, insurance, packaging, duty, taxes, etc.

2. The Purchaser will only pay invoices that list the appropriate Order number and fulfill all the requirements for that particular Order. The Contractor is responsible for all adverse consequences resulting from improperly filed Orders, unless he can demonstrate that he was not responsible for them.
        
3. In so far as no alternative payment schedule is agreed upon in writing, the Purchaser must pay the purchase price within 14 days from the delivery and receipt of the bill with a 2% discount, or pay full price within 30 days.


§ 4 Period of Delivery - Transfer of Risk – Delivery Documents

1. The delivery time determined by the Purchaser in the Order is binding. The Purchaser must expressly confirm any deviation from the delivery time stated in the Order in writing

2. The Contractor is obligated to inform the Purchaser immediately in writing, if any circumstances arise or can be anticipated, which would result in any changes to the agreed upon delivery time. Notification by the Contractor of a delay in delivery time and any consequences connected to that delay does not release the Contractor of responsibility for the consequences resulting from this delay, unless the Purchaser explicitly releases the Contractor from damages in writing when the delays occur. Thus the Purchaser continues to have all the rights stated in the purchase agreement, regardless of notification of any delay in delivery time.
 
3. Unless otherwise agreed upon in writing, all orders will be free of shipping charges.

4. The Contractor is required to list the exact order number of the Purchaser on all shipping and delivery documents.  If the exact order number is not listed the Purchaser will not be responsible for any potential delays in completing the payments. The delivery documents are the documents and certificates listed in the Order by the Purchaser (Certificate of Conformity, Acceptance Inspection Documents etc.) and the original must be included. The shipping documents need to be marked with the additional notification "For Air and Space Shipment" and "Immediate inspection upon receipt of material and release to QS" in the case of air and space delivery.



§ 5 Performance Scope - Changes – Replacement Parts

1. The scope of the performance arises from the individual orders and the documents identified in the individual orders, as well as these General Purchase Terms and Conditions. Ideas, drafts, models, patterns and all other work products created by the Contractor in the process of delivery, are a part of the work product and belong to the Purchaser. All deliveries – in so far as they exist – must follow the Contractor’s approved QM-System (quality management system).

2. The Contractor will review all specifications, performance specifications, and other information as well as any equipment, parts and other materials for their suitability for the purpose intended by the Purchaser and the Purchaser’s end customer.

3. The Contractor will ensure that he receives all important information, circumstances, and the Purchaser’s intended use of the delivery, necessary for performance of his contractual obligations, in a timely manner. The Contractor can only invoke not having this information if he requests the documentation in a timely manner and did not receive them within a reasonable amount of time. The Contractor guarantees that the deliveries encompass all deliverables necessary for a secure application according to regulations that they are suitable for the intended usage, and comply with current scientific and technical standards.

4. The Contractor will comply with all legally applicable standards, laws, and legal regulations, in particular safety, environmental, hazardous substances and materials, and accident prevention regulations, as well as generally accepted safety-related policies and the corresponding specifications of the Purchaser and the final customer.

5. Prior to acceptance, the Purchaser can demand changes in the delivery, in particular in the design and execution. The Contractor is required to implement the changes without delay on the basis of the current contractual obligations. If the Contractor believes that such changes could result in changes to the agreed upon costs for the contract items, or that the agreed upon dates cannot be met, the Contractor must inform the Purchaser about this in writing without delay

6. The Contractor shall ensure that after delivery of the contractual items, he can deliver the additional contractual items or parts to the Purchaser for a period of 10 years, beginning after delivery of the contractual items, if a compatible or suitable part cannot be delivered due to technological advancements.


§ 6 Defects Inspection – Warranty – Duty to Inform

1. The Purchaser will inspect the delivered items for quality and any faults within a reasonable time period. A complaint will be timely if the Contractor receives it within 10 business days from receipt of the goods, or in the case of hidden faults, from when they were discovered.

2. The complaint time period according to section 6, paragraph 1 does not apply when a trial run of the delivery items has been agreed upon. If the Purchaser completes the trial run within the agreed upon time period, the complaint period begins after termination of the trial run.

3. The Purchaser is entitled to all legal rights to claims for defects. He is fully entitled to demand either the removal of defects or delivery of a new item. The right to compensation for damages, in particular compensation for damages instead of performance is expressly reserved. When there is danger of default or time is of essence, the Purchaser can remove the defects at the Contractor’s expense.

4. Irrespective of the obligations to inspect and make complaints, the Contractor is obliged to inform the Purchaser immediately in writing if he discovers that products he delivered to the Purchaser contain faults, defects or any conditions deviating from the contract.

5. In addition, the Contractor is obligated to inform the Purchaser in writing of any planned changes in his sourcing, production, manufacturing, assembly and inspection processes – including to his own supply chain – prior to delivery of the contract items, and obtain his written agreement. This is applies in particular when the Contractor
  • changes his pre-supplier,
  • uses pre-suppliers in place of his own production,
  • changes his production, manufacture, assembly and inspection processes compared to those approved by the Purchaser in the Order or in previous deliveries,
  • uses a different production method (e.g. machine) or different upstream product as well as if the production location or the site where the machines are used changes, and
  • the pre-suppliers change their procurement, production, manufacture, assembly and inspection processes.

5. The Contractor is obligated to ensure that he can fully comply with his duty to inform according to Section 6 paragraphs 4 and 5, by entering into relevant agreements with his suppliers, and by regularly monitoring his suppliers.  


§ 7 Product Liability – Indemnification – Liability Insurance


1. In so far as the supplier is responsible for damages, he is obligated to release the Purchaser from claims for damages by third parties upon an initial request, as the cause is in his domain and organizational area, and he is liable in relation to third parties.

2. Within the scope of his liability for damages within the meaning of paragraph 1 above, the Contractor is also obligated to reimburse the Purchaser for any expenditures according to §§ 683, 670 BGB or according to §§ 830, 840, 426 BGB, which arise from or in connection with a recall on the part of the Purchaser. As far as possible and reasonable, the Purchaser will inform the Contractor about the content and extent of recall measures, and give him the opportunity to answer. Any other legal claims remain unaffected.

3. The Contractor is obligated to maintain a product liability insurance policy with blanket coverage of € 10 million for each damaging incident to persons/property; the Purchaser’s further claims to damages remain unaffected.


§ 8 Trade Mark Rights

1. The Contractor guarantees that no third-party-rights, in particular trade mark rights (e.g. patents, utility or design patents) will be violated in connection with his delivery.

2. If a third party sues the Purchaser for such a breach, the Contractor is obligated to release the Purchaser from any claims upon the first written request. The Purchaser is not authorized to enter into any agreement with third parties, in particular to enter into a settlement agreement, without the consent of the Contractor.

3. The Contractor’s obligation to release from liability relates to all expenditures incurred by the Purchaser which arise in connection with demands from third parties. The period of limitation runs for ten years beginning as of the formation of the contract.


§ 9 Retention of Title – Free Issue Equipment -Tools – Non-Disclosure


1. All items left with the Contractor by the Purchaser, even on a loaned basis, such as drafts, patterns, models, tools, data storage devices, prototypes, images, illustrations, documentation, materials, equipment, components, parts, containers, packaging, implements, measuring instruments, appliances or other items, remain the property of the Purchaser, unless otherwise explicitly agreed upon. Such items are to be marked as the Purchaser’s property, and must be stored free of charge securely and separately from other items with the care of a prudent businessman. At his expense, the Contractor must insure these items for their replacement value against fire, water and theft. At the same time, the Contractor assigns the Purchaser, all claims for damages from this insurance policy, which the Purchaser accepts. The Contractor is obligated to perform all necessary maintenance, repairs and inspection work, for all items left in his custody in a timely manner at his expense.

2. The Contractor must immediately examine the items named in paragraph 1 above when they are received. The Purchaser must be immediately informed of any complaints in writing. The Contractor may only use these items to process the order and not for any other purposes or permit any other parties to use them, without the Purchaser’s prior explicit written permission. The Purchaser and/or a third party designated by the Purchaser have the right to enter the Contractor’s company grounds during normal business hours to inspect their loaned goods and related records. The Purchaser is entitled to demand the return of these goods at any time without stating a reason.

3. The Contractor will manufacture or make alterations for the Purchaser. If the goods subject to retention of title, are processed or inextricably mixed with other goods not owned by the Purchaser, the Purchaser acquires joint ownership in the new goods in proportion to the value of his goods (at cost plus VAT) to the other processed or mixed goods at the time of the processing or mixing.

4. The Contractor is obligated to keep all images, illustrations, calculations and any other documentation and information obtained in the context of his activities for the Purchaser relating to its business confidential and secret. This information may only be revealed to third parties with the Purchaser’s explicit permission. The duty to maintain secrecy continues after the termination of the contract and only terminates when, and in so far as, the above mentioned information becomes public knowledge.


§ 10 Rights to access and inspection - Duty to retain records

1. The Contractor obliges himself to provide the Purchaser and his customers, as well as the respective market regulation and surveillance authorities (e.g. Federal Motor or Air Transport Agencies) access to his place of business (upon notification during normal business hours and upon request at any time) and to all documentation related to an Order so that these can verify that the proper handling of Contractor’s activities and the accuracy of the bookkeeping. For each Order, these records must be retained and available for inspection for

  • 20 years for security related product/delivery items, if the Purchaser explicitly designated these at such when ordered, and
  • 10 years for all other products/delivery items after termination of the Order.

2. In so far as the Contractor uses sub-contractors, he must ensure that they entitle the Purchaser to all applicable rights and adhere to all document retention periods.


§ 11 Choice of Law - Jurisdiction – Place of Performance

1. In addition to these terms, German exclusively law governs this contract excluding the regulations of the UN Convention on Contracts for the International Sale of Goods (CISG) and regulations on conflicts in international civil law.

2. In so far as the distributor is a businessman, the Purchaser’s place of business is the place of jurisdiction; the Purchaser, however, reserves the right to sue the Contractor in the jurisdiction of his residence.

3. Unless the Order indicates otherwise, the Purchaser’s place of business is the place of performance.