General Purchasing Conditions
I. General Points
- These General Conditions of Purchase (hereinafter referred to as “GCP”) of GÄMMERLER GmbH (hereinafter referred to as: “GÄMMERLER”) apply exclusively; any countermanding conditions or conditions that vary from these purchasing conditions from the supplier are not recognised by GÄMMERLER, unless GÄMMERLER has already agreed to their validity in writing. These purchasing conditions shall even apply if GÄMMERLER accepts the delivery from the supplier unconditionally in the knowledge of countermanding conditions or conditions that vary from these purchasing conditions from the supplier.
- All agreements concerning the deliveries and services (hereinafter referred to consistently as “deliveries“), made between GÄMMERLER and the supplier, must be recorded in text form in the relevant contract and in any supplementary agreements. Any verbal agreements, in particular relating to changes and supplements to the purchasing conditions of GÄMMERLER – including this written form clause – and ancillary understandings of all types, shall require the written confirmation by GÄMMERLER to become effective.
- If software or other non-physical objects (e.g. rights) form a constituent part of the delivery by the supplier, and unless there is a separate written agreement, the rights to simple, time-related, factual and spatial unlimited use and exploitation to these are transferred to GÄMMERLER immediately upon payment of the reimbursement owed for the specific delivery concerned. The above-described concession of rights shall also encompass the right of GÄMMERLER to process, modify, copy, distribute and exploit in any way, and the right to transfer the utilisation rights and to issue them unrestrictedly in terms of time and content to sub-licensees.
II. Purchase Orders
- If the supplier does not accept the purchase order from GÄMMERLER within a period of 2 weeks from its receipt, then GÄMMERLER shall have the right to cancel that order.+
- Cost estimates are binding and cannot be reimbursed unless an agreement has been made to the contrary in writing.
- For illustrations, drawings, calculations and other documents, GÄMMERLER reserves the ownership rights and copyrights; they may not be made available to third parties without specific written agreement by GÄMMERLER. They are to be used exclusively for manufacture based on the purchase order from GÄMMERLER; after the purchase order has been completed they must be returned to GÄMMERLER without requiring a specific request to do so. They are to be kept secret from third parties: In this respect the stipulation contained in Subparagraph VII 4 also applies in addition.
III. Delivery Dates
- The delivery dates that figure in the purchase orders from GÄMMERLER are binding.
- If there is a danger of a delay in delivery, this must be advised to GÄMMERLER immediately, together with a statement of the reasons for the delay
- In the event of any delay in delivery, GÄMMERLER shall be entitled to corresponding legal rights. In particular, GÄMMERLER shall be entitled, after the fruitless expiry of a reasonable period, to damages in lieu of fulfilment and to demand termination. If GÄMMERLER should demand damages, the supplier shall be entitled to prove to GÄMMERLER that it cannot be held responsible for the failure to meet its obligation.
- Unconditional acceptance of a delayed delivery shall not constitute a renunciation of the damages due to GÄMMERLER on account of the delay; this shall apply until full payment of the reimbursement due from GÄMMERLER for the delivery concerned.
- Force majeure, industrial action, disruptions in operations beyond the supplier’s reasonable control, unrest, measures taken by public authorities and other unavoidable events shall entitle GÄMMERLER to withdraw from the contract, either wholly or partially – without infringing other rights – provided that they are not of negligible duration and do not have a consequence of considerable reduction in the requirements for supply at GÄMMERLER.
- All deliveries shall be at the risk of the supplier until delivered to the door at the business address of GÄMMERLER or to a delivery location named by GÄMMERLER. The costs for customs clearance, packing, freight and insurance shall be met by the supplier.
- If delivery ex-works is agreed in any individual case, the supplier must ensure the most favourable shipping arrangement for GÄMMERLER and the correct declaration of the supplies involved. In such cases too the supplier shall be liable for any transport damage.
V. Claim for defects and recourse
- GÄMMERLER is obligated to check the deliveries from the supplier within a reasonable period for any quality and quantity deviations. Any claim for any quality and/or quantity deviations shall have been received by the supplier in good time if it is received within a period of 5 working days, calculated from receipt of the delivery at the location specified for delivery by the supplier on the order, or, in the event of concealed defects, immediately upon their discovery.
- The legal stipulations concerning material defects and legal defects shall be applicable, unless otherwise agreed below.
- The right to select the type of supplementary performance shall remain by default with GÄMMERLER. The supplier shall have the right to refuse to provide the type of supplementary performance selected by GÄMMERLER, under the conditions set out in § 439 Para. 3 of the German Civil Code (BGB).
- If the supplier does not begin rectification of the defect immediately upon being requested by GÄMMERLER to do so, then GÄMMERLER shall have the right , in urgent cases, particularly for the prevention of immediate hazards or the prevention of larger-scale damage, to rectify such defects themselves or to have them rectified by a third party, at the cost of the supplier.
- Liabilities for material defects shall expire in two years unless the delivery from the supplier has been used in accordance with their normal use for a construction project, and has generated a defect in that project. In such cases the expiry period is five years. The expiry period for liabilities due to material defects shall start with the arrival of the delivery at the location where delivery was to be made by the supplier according to the order (transfer of risk).
- In cases of defects of title, the supplier also releases GÄMMERLER from any liability for potential claims by third parties. With defects of title, the expiry period is 10 years.
- For parts of the delivery restored or repaired within the period of limitation, the period of limitation restarts to run again from the moment at which the supplier has completely fulfilled the supplementary performance resulting from the claims by GÄMMERLER.
- If GÄMMERLER should incur costs as a result of defective delivery from the supplier, particularly any transport, transport infrastructure, working and material costs or costs over and exceeding the usual goods inwards costs, then the supplier must pay any such costs.
- If GÄMMERLER should accept returned products manufactured and/or sold by GÄMMERLER due to defects in the delivery from the supplier or if, due to such defects, a payment to GÄMMERLER should be reduced or if GÄMMERLER should be made liable in any other way, GÄMMERLER reserves the right to recourse against the supplier, without having to set any deadline otherwise required to enforce GÄMMERLER’s rights in relation to defective goods.
- GÄMMERLER is entitled to claim reimbursement for expenditure which GÄMMERLER may have incurred in relation to their customers, due to a customer making a claim against GÄMMERLER for compensation for expenditure relating to supplementary performance, in particular transport, transport infrastructure, working and material costs.
- Irrespective of the stipulations in the above regulation in Subparagraph V. 5, in circumstances described in the terms of Subparagraph V. 9. and V. 10. the limitation shall take place at earliest two months from the moment at which GÄMMERLER made good the claim against it by the customer, and at latest five years after delivery by the supplier.
- If a material defect becomes apparent within six months after transfer of risk, it is assumed that the defect was already present at the time of transfer of risk, unless this assumption cannot be made in context of the type of item or defect involved.
VI. Product liability
- In the event that GÄMMERLER should become the subject of any claim, the supplier is obligated to release GÄMMERLER from such claims, insofar as and inasmuch that the relevant damage has been caused by a defect in the delivery. In any case of liability based on fault this provision shall only apply if the fault lies with the supplier. If the cause of the damage lies within the responsibility of the supplier, the burden of proof shall lie with that supplier.
- In relation to its liability for cases of damage for the purposes of Subparagraph VI.: 1. the supplier shall also be liable to reimburse any expenditure in accordance with §§ 683, 670 BGB or in accordance with §§ 830, 840, 426 BGB that should arise from or may be related to any recall action executed by GÄMMERLER. GÄMMERLER shall advise the supplier of the content and scope of the recall measures to be taken as far as that should be possible and reasonable – and shall permit the supplier to make a relevant statement. Other legal claims remain unaffected.
- The supplier agrees to take out product liability insurance, with a cover value of € 5 million per case of personal injury/material damage – globally – If GÄMMERLER should be due further claims for damages, then such claims shall remain unaffected.
VII. Title retention, provision of equipment, tools, non-disclosure
- Where GÄMMERLER should put any items at the disposal of the supplier, it retains title to their property. Any processing or conversion by the supplier of such items shall be undertaken for GÄMMERLER. If such goods whose title is reserved by GÄMMERLER should be processed along with other items that do not belong to GÄMMERLER, then GÄMMERLER acquires joint property rights to the new goods in the ratio of the value of the goods provided (at purchase price plus VAT) in relation to the other processed items at the time of the processing.
- If the goods provided by GÄMMERLER should be combined irretrievably with items that do not belong to GÄMMERLER, then GÄMMERLER acquires joint ownership of the new item in the ratio of the value of the reserved title goods provided (at purchase price plus VAT) in relation to the other items combined with them at the time of that combination. If the combination should take place in such a way that the supplier’s item should be considered the main component, it shall be taken as agreed that the supplier transfers GÄMMERLER joint ownership in the appropriate proportion; the supplier shall hold the jointly owned item on GÄMMERLER’s behalf.
- GÄMMERLER retains title to tools; the supplier is obligated to use the tools exclusively for the manufacture of the goods ordered by GÄMMERLER. The supplier shall be obligated to insure the tools belonging to GÄMMERLER for their new value against fire, water and theft damage at their own cost. At the same time, the supplier shall immediately surrender to GÄMMERLER all reimbursement claims from this insurance; GÄMMERLER hereby accepts this transfer. The supplier shall be obligated to carry out any necessary maintenance and inspection work on the GÄMMERLER tools and to carry out all repair and service work at their own cost and in good time. Any defects must be reported to GÄMMERLER immediately; any culpable failure to make such a report leaves any liability for damages unaffected.
- The supplier is obligated to strict non-disclosure of all illustrations, drawings, calculations and other documents and information. They may be made available to third parties only with express approval by GÄMMERLER. The non-disclosure obligation shall also apply after termination of the contract; it shall expire if the manufacturing knowledge covered the illustrations, drawings, calculations and other documents provided has become general knowledge.
- Where the security interests held by GÄMMERLER in accordance with Subparagraph VII. 1. and/or Subparagraph VII. 2. exceed the purchasing price of all reserved title goods by more than 10 %, GÄMMERLER is obligated, on request by the supplier, to release security interests to the extent that they exceed that 10%.
VIII. Invoicing and payment
- Invoices must be sent individually in duplicate by post to the business address of GÄMMERLER. Payment will be within 14 days at 3% discount or net within a period of 30 days. The payment does not imply any recognition of fulfilment, nor any relinquishment of warranty.
- Invoices can only be processed by GÄMMERLER if they quote the commission number and purchase order number – as per the details in the relevant GÄMMERLER purchase order; any consequences due to non-observance of this obligation shall the responsibility of the supplier unless it can demonstrate otherwise.
- GÄMMERLER is entitled to the rights of set-off and of retention as stipulated in law.
- The cession of demands against GÄMMERLER shall only be effective with the written approval of GÄMMERLER..
- All documents or items made available to the supplier by GÄMMERLER for tendering purposes or for execution of an order, remain the property of GÄMMERLER and must neither be used for any other purpose, nor copied nor made available to third parties. After completion of any order, the documents or items must be returned free of charge to GÄMMERLER.
- The supplier undertakes to use the knowledge and experience gained in the execution of an order from GÄMMERLER exclusively only for the execution of orders from GÄMMERLER, and not to make such knowledge available to third parties.
XI. Environmental requirements, German electrical equipment law
- For deliveries of all types, the applicable legal environmental stipulations and EU Directives in particular must be observed. The supplier must ensure proper, appropriate and environmentally-friendly transport of the materials and products and take account of the appropriate transport containers and transport packaging.
Transport containers and packaging materials supplied may either be sent back to the supplier by GÄMMERLER, or disposed of at the cost of the supplier.
- All deliveries to GÄMMERLER (where relevant) must comply with the requirements of the currently applicable German law governing the sale, return and environmentally sound disposal of electrical and electronic equipment (“ElektroG”) and must not contain any materials in concentrations or applications whose placing on the market is prohibited by the currently applicable version of ElektroG . The supplier is obligated to advise GÄMMERLER without delay in the event of any changes in concentration or application of their deliveries. The supplier releases GÄMMERLER from any claims by third parties in the event of a contravention of the mentioned applicable stipulations. This release shall also cover any claims by GÄMMERLER as a result of the forfeit of penalties and fines for administrative offences.
XII. Place of delivery, legal domicile and applicable law, other items
- The place of delivery for all legal contract obligations shall be the company domicile of GÄMMERLER.
- The legal domicile shall always be the domicile of GÄMMERLER. GÄMMERLER is, however, entitled to initiate litigation at the domicile of the supplier.
- The Law of the Federal Republic of Germany is exclusively applicable. UN Purchasing Law is not applicable.
- GÄMMERLER may change the existing GCP with future effect. The changes shall be advised to the partner to the contract in a suitable manner and will be applicable unless the contracting partner objects in writing to the changes within one month.