As of: October 2015
§1 General information, applicability
(1) These general terms of purchase (GTPs) apply to all business relations with out business partners and suppliers (hereafter “Suppliers”). The GTPs shall apply only where the Supplier is a business entity (§ 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
(2) The GTPs shall apply in particular to contracts concerning the sale and/or supply of movable goods (hereafter also “Goods”) to PAUSCH MEDICAL, without consideration of whether these Goods were produced by the Supplier themselves or purchased from sub-suppliers (§§ 433, 651 BGB). The respective version of the GTPs shall be valid as a framework agreement even for future contracts concerning the sale and/or supply of movable goods with the same Supplier, without the need for us refer to them again in each individual case; in this case we will inform the Supplier immediately of any changes to our GTPs.
(3) These GTPs shall apply exclusively. Any general terms & conditions from the Supplier which deviate from, contradict or supplement them shall only become part of the contract if their validity is expressly approved by us in writing. This requirement for approval shall apply in all cases, for example even if we – being aware of the Supplier’s general terms & conditions – accept delivery from the Supplier without reservation.
(4) Individual arrangements, agreed to with the Supplier on a case-by-case basis (including ancillary agreements, supplements and changes), shall always take precedence over these GTPs. A written contract or our written confirmation shall be authoritative concerning the content of such arrangements.
(5) Any legal declarations and notifications which may have to be submitted to us by the Supplier once the contract is concluded (e.g. setting deadlines, providing reminders, declaring the rescission of the contract), must be made in writing in order to be effective.
(6) References to the applicability of statutory regulations are for the purposes of clarification only. This means that statutory regulations are applicable even without such clarification, provided that they are not directly modified or expressly excluded in these GTPs.
§2 Conclusion of contract
(1) Our order shall be deemed binding once it is confirmed or submitted in writing. The Supplier must notify us of obvious errors (e.g. typos and calculation errors) and omissions in the order, including the order documents, so that they can be corrected or completed before acceptance; otherwise the contract is deemed not to be concluded.
(2) The Supplier is required to confirm our order in writing within a period of three (3) working days or by specifically by dispatching the Goods without reservation (acceptance). Delayed acceptance of the offer counts as a new offer, requiring acceptance by us.
§3 Delivery period and delayed delivery
(1) The delivery period stated by us in the order is binding. If the delivery period is not specified in the order and was not otherwise agreed to, it shall be two (2) weeks from the conclusion of the contract. The Supplier is obligated to inform us immediately in writing if they are anticipate being unable to adhere to agreed delivery periods – whatever the reason may be.
(2) If the Supplier is unable to render the service, or not within the agreed delivery period, or if there will be a delay in doing so, then our rights – particularly the right to rescission and damages – shall be determined by the statutory regulations. The rules in section 3 are not affected by this.
§4 Service, delivery, transfer of risk, delay of acceptance
(1) The Supplier shall not be entitled, without obtaining express written permission from us beforehand, to have a third party (e.g. a sub-contractor) render the service which they themselves are obligated to provide. The Supplier shall bear the procurement risk for its services, unless otherwise agreed on a case-by-case basis (e.g. the sale of Goods held in stock).
(2) The Supplier must continuously monitor the quality of its services. Before making a particular delivery of the delivery objects, the Supplier will ensure that the delivery objects designated for delivery are free from defects and meet the agreed technical requirements.
(3) The Supplier will ensure that all information and circumstances which are relevant in the fulfilment of its contractual obligations, as well as the use intended by us for its deliveries are known to them in good time. Offers shall be provided to us free of charge. Before submitting an offer, the Supplier shall be responsible for ensuring that they have precisely checked local conditions and has provided clarification by viewing documentation concerning the implementation of the services as well as compliance with the technical and other regulations. The Supplier must check any documents provided, including with reference to local conditions, for correctness, feasibility, and for the performance of preliminary work by third parties, if any. They must notify us immediately in writing of reservations of any type, stating the reasons for these concerns, and must come to agreement with us concerning the continuation of the work.
(4) Within the bounds of reasonableness, we are entitled to demand that the Supplier make changes to the delivery object, in terms of its design and implementation. The Supplier must implement the changes within a reasonable period. Mutually satisfactory agreements must be made concerning the effects of such changes, particularly with respect to increased or reduced costs as well as delivery deadlines. If no agreement can be reached within a reasonable period of time, we will choose at our reasonable discretion.
(5) The Supplier must ensure that they are able to provide us with the delivery objects or parts of them as spare parts, when supplied with production materials, even for a period of 10 years after the end of the supply relationship, under reasonable conditions.
(6) The delivery shall be made free of charge within Germany, to the destination given in the order. If the intended destination is not given and unless otherwise agreed, the delivery shall be made to our registered office in Erlangen, Germany. The particular intended destination is also the place of fulfilment (debt discharged at creditor’s domicile).
(7) A delivery note, stating the date (of issue and of dispatch), contents of the delivery (item number and quantity) as well as our order number (date and number), must be enclosed with the delivery. If the delivery note is missing or incomplete, then we are not responsible for any resulting delays in processing and payment.
(8) We must be provided with a corresponding notification of dispatch, separate from the delivery note but with the same contents.
(9) The risk of accidental destruction or deterioration of the Goods is transferred to us upon handover at the place of fulfilment. If acceptance has been arranged, this shall be the determinative event for the transfer of risk. In all other respects too, the statutory provisions governing contracts for work and services (Werkvertragsrecht) shall apply to acceptance. Handover and acceptance shall serve the same function if there is a delay of acceptance.
(10) When we are in delay of acceptance shall be determined by statutory regulations. The Supplier must however expressly offer us the service even if a specific or definable calendar date has been agreed for an action or contribution on our pat (e.g. provision of materials). If we are in delay of acceptance, then the Supplier is entitled, according to the statutory provisions, to demand reimbursement for its reasonable additional expenses (§ 304 BGB). If the contact concerns unreasonable Goods to be produced by the Supplier (a one-off product), then the Supplier shall only be entitled to further rights if we are obligated to provide assistance and are responsible for not having done so.
(11) The Supplier must provide clarification as to the required official approvals and reporting obligations for the introduction and use of the delivery objects.
(12) For deliveries from preference countries, the Supplier must enclose the preference certificate with every delivery. The long-term supplier declaration according to EEC regulation 1207/2001 must be submitted annually. Moreover, the Supplier is obligated to comply with the applicable export control regulations and notify us unprompted of the export control code for the delivery objects, particularly according to EU and US law, in written form no later than upon receipt of the delivery-
§5 Acceptance of services
(1) Formal acceptance of the work shall occur upon its completion, by our countersigning an acceptance report. In case of services which due to the further progress in execution can no longer be inspected and examined at a later point of time, the Supplier must promptly issue a written invite for us to inspect the product. A fictitious acceptance by failing to respond to a request for acceptance from the Supplier, by payment or through actual use is excluded.
(2) The Supplier must arrange for officially prescribed acceptance tests of any kind, especially by recognised experts, at its own cost before acceptance of the work, provided that this service is not explicitly excluded from the scope of services. Certificates attesting to freedom from defects and any official acceptances must be supplied to us promptly before acceptance of the work.
§6 Prices and terms of payment
(1) The price indicated in the order is binding. All prices are given net, plus the legally applicable VAT.
(2) Unless otherwise agreed on an individual basis, the price includes all services and supplementary services provided by the Supplier (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and third party liability insurance). The Supplier must take back the packaging materials upon request.
(3) The agreed price must be paid within thirty (30) calendar days of complete delivery and rendering of all services (including any acceptance that was agreed to) and receipt of a proper invoice. If payment is made within 14 calendar days, the Supplier shall offer a 3% discount. In case of a bank transfer, the payment shall be deemed to have been made promptly if our transfer order is received by our bank before the payment period has ended; we are not responsible for delays by the banks involved in the payment process.
(4) We shall not owe interest for the period from the due date until payment is made. The penalty interest annually is 5 percentage points over the base interest rate. When we are in default shall be determined by statutory regulations, unless written notification is sent by the Supplier detailing a differing arrangement.
(5) We are entitled to exercise rights of offsetting and of withholding payment as well as to use the defence of non-fulfilment of the contract to the extent permissible by law. We shall particularly be entitled to retain due payments where we have existing claims against the Supplier due to the provision of services which are incomplete or defective.
(6) The Supplier shall only have the right to offset or to withhold payment due to legally established or uncontested counterclaims.
§7 Confidentiality and reservation of title
(1) We reserve all property rights and copyrights to illustrations, diagrams, drawings, instructions on execution, product descriptions and other documentation. Such documents must be used exclusively for the contractual service and must be returned to us after completion of the contract. The documents must be kept confidential from third parties which, to be specific, also includes after termination of the contract. The duty of confidentiality shall only expire once and to the extent that the knowledge contained in the supplied documents becomes common knowledge.
(2) This provision shall apply accordingly for substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other objects which we make available to the Supplier for manufacturing purposes. Such objects are – where they are not processed as part of manufacturing – must be stored separately at the cost of the Supplier, and appropriate insurance must be taken out to protect them from destruction and loss.
(3) The Supplier affirms that they hold all industrial property rights present in the Goods supplied by them, and is able to grant us unlimited rights to use, exploit and disclose them.
(4) Processing, commingling or combining (further processing) of provided objects by the supplier is undertaken on our behalf. The same applies to further processing of the delivered Goods by us, so that we are deemed to be the manufacturer and gain ownership of them at the latest when they are subjected to further processing, in accordance with statutory regulations.
(5) The transfer of ownership of the Goods to us must be unconditional and without reference to the payment of the agreed price. However, if we do accept an offer from the Supplier where the transfer of title is conditional on payment of the purchase price on an individual basis, the reservation of title of the Supplier shall expire upon payment of the purchase price for the delivered Goods, at the latest. We remain entitled, even before the purchase price is paid, to resell the Goods in the course of ordinary business by advance assignment of the resulting claims (alternatively by applying the simple reservation of title and reservation of title extended upon resale). In any case, this excludes any other forms of reservation of title, particularly extended and transferred reservation of title, and reservation of title extended upon further processing.
§8 Materials provided by us
Materials, parts, containers, special packaging, tools, measuring instructions or similar (provided materials) remain our property. If such materials are processed, combined or commingled, we shall gain joint ownership of the new product, in the ratio of the value of the materials provided to the value of the product as a whole. The Supplier shall not be entitled to withhold such materials for any reason whatsoever.
Unless agreements exist to the contrary, to the extent that we have contributed to the proven costs of the tools used to manufacture the delivery object, we shall gain full or joint ownership of these tools. The tools shall become our (joint) property upon payment. They will remain in the possession of the Supplier on a loan basis. The Supplier shall only be entitled with our approval to dispose of the tools, in the legal or actual sense, to change their location or to make them permanently inoperable. The Supplier must label the tools as our (joint) property. The Supplier shall bear the costs for upkeep, repair and replacement of the tools. Replacement tools shall become our property according to our ownership share in the original tool. If a tool is owned jointly, we shall be accorded a right of first refusal to the joint ownership stake of the supplier. The Supplier must use tools which we (jointly) own exclusively for production of the delivery objects. Once the delivery is complete, upon request, the Supplier must surrender the tools to us immediately. For tools under joint ownership, once the tool is received, we must reimburse the Supplier according to the present value of its joint ownership share. The Supplier shall not be entitled to withhold the tools under any circumstances. The Supplier shall also be obliged to surrender the tools if insolvency proceedings are initiated against it or in case of a longer term interruption to delivery. The Supplier must insure the tool to the agreed extent and, if no agreement is reached, to the usual extent.
If custom software is included in the scope of delivery, the Supplier declares their willingness to make changes/improvements to the software according to our specifications for a period of 5 years from the delivery of the delivery object, in return for reasonable compensation. If the software comes from sub-suppliers, the Supplier will obligate its sub-supplier to carry out the necessary work.
§11 Deficient services
(1) Our rights in case of defects in quality and defects of title (including incorrect and short deliveries as well as improper installation, errors in the installation or operating manual) and in case of other violations of obligations by the Supplier shall be determined by statutory regulations, unless defined otherwise in the following.
(2) According to statutory provisions, the Supplier shall be liable in particular for ensuring that the Goods have the agreed properties upon transfer of risk to us. In any case, those product descriptions which – in particular through descriptions or references in our order – are the object of the particular contract or have been included in the contract in the same way as these GTPs will serve as a record of what has been agreed to in terms of the properties. It makes no difference for this whether the product description comes from us, from the Supplier or from the manufacturer.
(3) Notwithstanding § 442 Para.1 P2 of the BGB, we shall even be entitled to unrestricted warranty claims if the defect remained unknown to us when the contract was concluded, due to gross negligence.
(4) The commercial duty to examine and give notice of defects shall be determined by statutory regulations (§§ 377, 381 HGB), subject to the following conditions: our duty of examination shall be restricted to defects which came to light during an external examination, including of the delivery documents, in the course of our incoming goods inspection as well as in our quality control spot checks (e.g. transport damage, incorrect and short deliveries). If acceptance has been arranged, there is no duty of examination. Otherwise it depends to what extent an examination is possible in the course of ordinary business, taking into account the circumstances of the individual case.
(5) Our duty to provide notification of subsequently discovered defects remains unaffected by this. In any event, our notifications (of defects) shall be deemed to have occurred immediately and promptly if they are received by the Supplier within six (6) weeks.
(6) The costs incurred by the Supplier for the purposes of testing and repair (including any removal and installation costs) will be borne by the Supplier even if it turns out that there was no actual defect. Our liability for compensation for a unjustified request to rectify a defect remains unaffected; we shall only be liable in this respect, however, if we have recognised (or not recognised due to gross negligence) that there was no defect.
(7) If the Supplier does not meet its obligation for supplementary performance – by rectifying the defect (repair) or supplying a product free from defects (replacement), at our own discretion – within a reasonable period of time to be determined by us, then we are entitled to rectify the defect ourselves and demand compensation from the Supplier for the costs incurred in this, or a commensurate payment in advance. If supplementary performance by the Supplier fails or is not reasonable for us to carry out (e.g. due to particular urgency, danger to operational safety or the impending occurrence of disproportionate damage), there is no need to set a deadline; we will inform the Supplier immediately of such circumstances, where possible in advance.
(8) Otherwise, in case of defects of quality or title, we shall be entitled – according to statutory provisions – to a reduction of the purchase price or to withdraw from the contract. In addition, we have a claim to damages and reimbursement for expenses, according to statutory regulations.
§12 Recourse against the Supplier
(1) In addition to claims for defects, we shall have unrestricted entitlement to our legally determined rights of recourse within a supply chain (recourse against the Supplier according to §§ 478, 479 BGB). In particular, we are entitled to demand the precise type of supplementary performance (repair or replacement) from the Supplier that we owe to our customer in an individual case. Our statutory right to choose (§ 439 Para.1 BGB) shall not be restricted by this.
(2) Before we recognise or make a claim for defects asserted by our customer (including reimbursement for expenses acc.to §§ 478 Para. 3, 439 Para. 2 BGB), we will notify the Supplier and – giving a brief account of facts of the case – ask them to provide their opinion in writing. If this opinion is not received within a reasonable time, and no amicable solution can be brought about, then the claim for defects actually granted by us is deemed to be owed to our customer; in this case the Supplier is responsible for providing evidence to the contrary.
(3) Our claims for recourse against the Supplier shall be valid even if the Goods were further processed by us or one of our customers, e.g. by incorporating them into another product, before they were sold to a consumer.
§13 Manufacturer’s liability
(1) If the Supplier is responsible for damage to the product, it shall indemnify us in respect of third-party claims, insofar as the cause lies within it area of control and organisation and if the Supplier is liable itself in dealings with external parties.
(2) Under the Supplier’s indemnity obligation, it must reimburse any expenses incurred as a result of or in connection with claims of third parties, acc.to §§ 683, 670 BGB, including product recalls implemented by us. We will notify the Supplier as to the content and scope of product recalls – where possible and reasonable – and give it a chance to respond. This shall have no bearing on other legal claims.
(3) The Supplier must take out and maintain product liability insurance with a lump-sum insured amount of at least one (1) million euros per case of personal injury/damage to property.
§14 Limitation period for claims
(1) Unless stated otherwise in the following, the mutual claims of the parties to the contract shall be limited according to statutory regulations.
(2) Notwithstanding § 438 Para. 1 No. 3 BGB, the general limitation period for claims of defects is three (3) years from the transfer of risk. If acceptance has been arranged, the limitation period shall start with acceptance. The limitation period of three years also applies accordingly for claims resulting from defects of title, whereby the statutory limitation period for third-party claims in rem for the restitution of the property (§ 438 Para. 1 No. 1 BGB) remains unaffected; moreover, claims derived from defects of title do not have any kind of limitation period, provided that the third party is still able to assert the right against us – particularly in the absence of limitation.
(3) The limitation periods under the law governing the sale of goods, including the above extension, shall apply – within statutory limits – to all contractual claims for defects. If a defect also entitles us to make non-contractual claims for damages, the normal statute of limitations shall apply (§§ 195, 199 BGB), if application of the limitation periods in the law governing the sale of goods does not lead to a longer limitation period in the particular case.
§15 Force majeure / Longer term inability to deliver
(1) Natural disasters, civil unrest, government actions and other unforeseeable and unavoidable events shall release the Supplier and us from our obligations to render the service for the duration of the disruption and within the scope of its effect. The affected party must immediately provide the other contract partners with comprehensive information and undertake every action possible, within the bounds of reasonability, to limit the effects of such events. The affected party must inform the other contract partners immediately when the disruption has ended.
(2) Should there be an inability to deliver over a longer period of time, suspension of payments or the opening of insolvency proceedings, the rejection of the initiation of such proceedings due to lack of assets or the initiation of comparable proceedings with respect to one of the contract partners, the other contract partner is entitled to withdraw from the part of the contract which has yet to be fulfilled. If the Supplier is affected by one of the events above, they shall support us to the best of their ability in shifting production of the delivery object over to us or to a third party, incl. the licensing of industrial property rights necessary for production under conditions which are standard for the industry.
§16 Compliance with anti-corruption and monopolies law
(1) The Supplier pledges that it will commit no actions and make no omissions which, regardless of the form of participation, could lead to administrative or criminal penalties, particularly due to corruption or breach of monopolies and competition law, by the Supplier, by individuals employed by the Supplier or by third parties commissioned by the Supplier (subsequently referred to as a “breach” or “breaches”). The supplier is responsible for taking suitable measures to avoid such breaches. The Supplier will oblige those that it employs directly or third parties commissioned by it to do the same.
(2) The Supplier is obligated, upon written request from us, to provide information about the aforementioned measures, particularly as to their contents and implementation status. The supplier is obligated, upon written request from us, every three calendar years, to completely and truthfully fill out a questionnaire made available by us for self-reporting purposes as well as to make available to other other related documents.
(3) The Supplier shall inform us immediately about the initiation of official investigations due to a breach. If the Supplier indicates that a breach has occurred, we are also entitled to demand in writing information about the breach and the steps taken to stop it and avoid it in future.
(4) In the event of a breach, we are entitled to demand that the Supplier cease the action with immediate effect and demand reimbursement for all damages which have occurred to us due to the breach.
§17 Applicable law and place of jurisdiction
(1) The law of the Federal Republic of Germany, excluding international standard laws, particularly the UN Convention on the International Sale of Goods, shall apply to these GTPs and all legal relationships between us and the Supplier. Where the choice of German law would be inadmissible or invalid, the prerequisites for and the effects of reservation of title shall be subject to the law of the country where the item is stored.
(2) If the Supplier is a merchant, in the sense used in the German commercial code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising in connection with the contractual relationship – including international relationships – shall be our registered office in Erlangen, Germany. However, we are also entitled to file claims at the place of fulfilment of the delivery obligation.