Elektor airsystems gmbH (DE)
Terms and conditions of purchasing
1. Validity of the terms and conditions
All orders for deliveries and services placed with entrepreneurs (hereinafter referred to as suppliers) are subject to the following terms and conditions in their current version at the time of conclusion of the contract. In the case of continuing obligations, the supplier shall be notified of any amendments to the terms and conditions in writing, indicating the amended provisions, and shall be deemed to have agreed upon them if the contractual partner sustains the continuing obligation, without objecting within a reasonable period of time.
The contract content is based on the written agreements. No further agreements have been made. Contractual changes or amendments shall only be valid if they have been approved by us in writing. Our procurement department has the sole authority for purchasing supplier’s supplementary conditions or business terms and conditions of business that are in variance or disadvantageous to us shall not be the subject of the contract even if they are not specifically rejected. These GTC shall also apply to future transactions with the supplier.
Offers are deemed to be accepted upon confirmation by us in the form of an order in writing. Should we place an order, we shall not be bound by it if 14 days elapse without receipt of acceptance. Our order number and article number is to be stated in all correspondence.
Prices are stated in EURO, inclusive of shipping and packaging costs. Should transport costs be borne by us on the basis of an express agreement, the supplier is obliged to make use of the most favorable shipping method. Should insurance be required, the supplier shall take out the most favorable policy.
4. Delivery, Termination
Delivery period and delivery deadline shall be in accordance with the order and are binding. The delivery deadline or delivery period are deemed to have been met upon arrival of the goods at the place of performance. Delays in delivery are to be notified to us in writing with immediate effect. Each delivery must be accompanied by the customary delivery note stating exact details. The supplier shall only be permitted to entrust the provision of his service to third parties other than his own employees subject to our express written consent concerning the deployment of such sub-contractor for a specified service.
We are entitled to terminate the contract at any time until delivery. If we terminate the contract, the supplier shall be entitled to demand the agreed remuneration; however, the supplier shall be entitled to offset any expenses saved as a result of the termination of the contract or to acquire or maliciously refrain from acquiring by using its labour elsewhere. It is assumed that the entrepreneur is entitled to 5 per cent of the agreed remuneration for the part of the work not yet performed.
We shall be authorized to transfer funds to any bank account of the supplier. The bank transfer date shall be the effective payment date in respect of payment punctuality. Amounts invoiced shall be due at the earliest 30 days following invoice receipt. Should the service only be performed in its entirety at a later date, the amount invoiced shall be due no earlier than 30 days following the completion of the service. In the case of payment within two weeks after the due date, we shall be entitled to 3% cash discount. Any statutory default interest owed to the supplier shall amount to a maximum of 5% points above base rate. Higher interest rates for other legal reasons and the enforcement of further damages shall not be excluded.
6. Endangerment of a claim
In the event of our claims being endangered we shall be entitled to exercise our legal right of non-performance regarding all services connected within the same legal relationship in accordance with § 273 German Civil Code (BGB).
7. Transfer of risk
The transfer of risk shall pass to us upon delivery of the goods at the specified destination.
8. Workpiece-related models, manufacturing facilities
If under the contract we have to make available drawings, models, computer programmes, files or production equipment such as tools (hereinafter referred to as equipment), these shall be collected by the supplier free of charge for us at a reasonable location specified by us. At our request, the supplier shall be obliged to return these free of charge to a reasonable place specified by us. The cost of maintenance, repair and modification shall be borne by the supplier. Upon receipt, the supplier shall verify the design, conformity with drawings or samples and suitability for the purpose of the contract. He shall inform us immediately of any defects, deviations or lack of suitability. If equipment is manufactured or procured by the supplier on our behalf, remuneration shall only be owed if expressly agreed. If the supplier invoices costs for equipment manufactured or procured by him on our behalf, ownership of such equipment shall pass to us upon full payment.
The supplier shall be obliged to store it carefully and free of charge for us. The supplier is obliged, at his own expense, to take out liability insurance and insurance against theft and fire for an appropriate sum insured, to be agreed on at our request. The supplier is obliged to provide us with information on the conclusion and content of the insurance contract and to provide us with a copy thereof. In the event of liability, the supplier shall be obliged to assign his claims against the insurance company to us at our request on account of performance.
On request, the equipment shall be delivered free of charge to us at a reasonable place specified by us. For all other equipment used exclusively for deliveries or services by us, we are entitled to the right to purchase for appropriate remuneration. After exercising this right, the above provisions shall apply. Equipment manufactured, procured or acquired by us or for us may only be used with our consent and only for the purpose of fulfilling contracts concluded with us. Equipment which is not to be returned to us must be stored for us free of charge for a period of five years after termination of the business relationship or destroyed at our request at the expense of the supplier.
9. Limitation of action
A suspension of the statute of limitations of claims of the supplier in the case of negotiations (§ 203 German Civil Code (BGB)) only occurs if we have consented to negotiations in writing. The suspension of our claims ends no earlier than 3 months following our last written statement.
a) Limitation of liability according to cause: Claims for damages or claims for reimbursement of futile expenditure due to breaches of duty or if the due service is not provided by us or is not provided as owed, due to delay or in the case of defects, the supplier shall only be entitled for:
aa) Damages resulting from injury to life, body or health due to at least negligent breach of duty,
bb) Other damages due to at least grossly negligent breach of duty or due to at least negligent breach of essential contractual duties (duties whose fulfilment is essential for the proper execution of the contract and on whose observance the contractual partner may regularly rely), and
cc) Damages which fall within the scope of protection of an assurance given by us (warranty, § 276 Section 1 BGB).
b) Limitation of liability according to amount: For damages resulting from the violation of cardinal obligations and for damages resulting from gross negligence, insofar as these do not fall under letter a) aa or cc), we shall only be liable for damages typically to be expected upon conclusion of the contract and for reimbursement of futile expenditure only up to the amount of the interest in performance.
c) Liability arising from pre-contractual obligations: The above paragraphs shall also apply to claims for damages by the contractual partner arising from obligations which derive from the commencement of contractual negotiations, the initiation of a contract or similar business contacts. If a contract is concluded between us and the supplier, the contractual partner shall be deemed to have waived claims for damages which would not have been justified in accordance with the above provisions in the case of an existing contract.
d) Claims from transferred rights: The above provisions shall also apply to claims asserted by the supplier under transferred rights. The supplier may only invoke foreign law to the extent that the claim would also have been justified if the above provisions and these General Terms and Conditions had applied.
11. Defects in delivery or service
In variation to § 377 German Commercial Code (HGB) (Obligation for inspection and complaint): We retain the right to claim for faulty goods should we have disposed of them in part or in full in the course of normal business or used or changed them prior to discovery or recognition of the defect. Our claims for defects of title shall be limited at the least to the regular period of limitation. Should the law prescribe a longer period of limitation, this shall apply exclusively.
The supplier shall release us from all claims by third parties that arise from material defects or deficiencies in title of the delivery or service. This shall particularly apply to manufacturer’s liability and the violation of industrial property rights. The supplier is aware of the fact that we export our goods worldwide, particularly to Member States of the European Union, the European Economic Area, Canada and the USA. Deliveries or services made in reference to end products, raw materials or part products must therefore comply with domestic and international law and may not infringe any domestic or international industrial property rights.
In the event of a defect in the goods, we may remedy the defect ourselves and demand reimbursement of the necessary expenses after a reasonable period of time set by the supplier for subsequent performance has expired without success, unless the supplier justifiably refuses subsequent performance. § Section 323 Section 2 BGB shall apply accordingly. Determination of a deadline shall not be necessary even if the subsequent performance has failed or is unreasonable for us. The supplier may demand an advance payment from the entrepreneur for the expenses required to remedy the defect.
12. Offset and retention rights
The supplier is only authorized to offset with undisputed or legally established claims. The supplier shall only be entitled to exercise rights of retention including the law under Section §369 of the German Commercial Code (HGB) with undisputed demands or demands that have been recognized by declaratory judgement from the same legal relationship.
The assignment of claims against us is excluded. Should the legal transaction from which payment claims of the supplier arise be a commercial trans-action by both parties, § 354a of the German Commercial Code (HGB) shall apply.
14. Place of Performance
If the supplier is a merchant, the place of performance for both parties shall be our registered office or the place of destination specified by us in the order.
Both parties undertake to treat as confidential all such business or trade secrets of the other party that become known to them in the course of contractual execution which shall also apply after termination of the contract. We shall be entitled to demand that the supplier also contractually obliges all employees and vicarious agents in a similar manner and grants us access to such agreements, where necessary.
16. Social responsibility and environmental protection
The supplier undertakes to comply with the respective legal provisions regarding dealing with employees, environmental protection and work safety and to work on reducing detrimental impact on people and the environment with his activities. For this, the supplier will establish and further develop a management system in accordance with ISO 14001 within his means. Furthermore, the supplier shall observe the principles of the UN‘s Global Compact Initiative. These essentially relate to the protection of international human rights, the right to collective bargaining negotiations, the abolition of forced labor and child labor, the elimination of discrimination in hiring and employment, responsibility for the environment and the prevention of corruption. Further information on the UN‘s Global Compact Initiative is available at www.unglobalcompact.org.
17. Applicable law, contract language, place of jurisdiction, partial nullity
All legal relationships between the parties are governed by German law. The validity of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
The language of the contract is German.
If the supplier is a trader, a legal entity incorporated under public law or a special fund incorporated under public law, the exclusive place of jurisdiction for all disputes resulting from the contractual relationship is our company’s head office. However, we are entitled to take the contracting party to court at another legal place of jurisdiction. It is agreed that regarding all other contracting parties, the place of jurisdiction will be Esslingen for all disputes resulting from the contractual relationship in the case where the party filing for legal action after the conclusion of the contract, no longer has Germany as his place of residence or if his usual place of abode is not known at the time of the commencement of the proceedings.
The invalidity of provisions in these contractual terms and conditions or another stipulation arranged between the parties shall have no influence on the validity of the remaining provisions of these terms and conditions of purchasing. In the case of other stipulations arranged between the parties, they are obliged to replace the invalid provisions with valid provisions which most closely correspond to the sense of the invalid provisions.