General Terms and Conditions of Purchase
myonic GmbH Leutkirch
1.0 General statements, area of application
1.1. The subject General Terms and Conditions of Purchase (hereinaftercalled GTCP) apply to all business relations (especially contracts, deliveries and other performance) with our business partners and suppliers (hereinafter called: sellers). The GTCP shall apply if the seller is an entrepreneur (pursuant to Art. 14 German Civil Code).
1.2. The GTCP especially apply to contracts on the sale and/or the delivery of movable assets (hereinafter called: goods) independent of whether theseller produces the goods himself, buys them from sub-contractors or usesmaterials for the production which were provided by our company (Art. 433,651 GCC). The GTCP in their individual version are also regarded as a framework agreement for future contracts for the sale and/or the delivery of goods by the same seller without being referred to in each individual case.
1.3. These GTCP shall exclusively apply. Modified, opposing or additional general terms and conditions of the seller or third parties shall only be part of the contract if and to the extent that we have explicitly accepted them in writing. The requirementof approval shall apply in any case, even if e.g. we accept the seller’s delivery without reservation being aware of his general terms and conditions.
1.4. Individual agreements concluded with the seller for special cases (including additional agreements, supplements and amendments) always take priority over these GTCPs. The contents of such agreements are subject to a written contract and/or our written approval.
1.5. Legally relevant statements and notifications the seller has to give to us upon conclusion of the contract (e.g. deadlines, reminders, cancellations) shall be made in writing in order to become effective.
1.6. Reference to the applicability of legal provisions is for explanation only. Even without such an explanation the legal provisions shall apply unless they are directly amended or explicitly excluded in these GTCP.
2.0 Conclusion of contract
2.1. Our order (offer) shall be binding upon written statement or approval at the earliest. The seller shall inform us on evident errors (e.g. typing or calculation mistakes) and incomplete orders including incomplete order documents for the purpose of correction and/or completion.
2.2. The seller is obliged to confirm our order in writing (acceptance) within a period of 10 days upon receipt of the order. A late acceptance is considered to be a new offer and must be accepted by us.
3.0 Delivery time, delayed delivery
3.1. The delivery time (delivery date or delivery period) we stated in the order shall be binding. Deliveries ahead of schedule shall not be permitted.
3.2. The seller is obliged to immediately inform us in writing on circumstances which are likely to cause non-compliance with the delivery date.
3.3. If the day on which delivery has to be effected at the latest can be defined on the basis of the contract, the seller shall be in default at the end of this day without further notice on our part.
3.4. In case of delayed delivery we shall be unrestrictedly entitled to lodge legal claims including the right of withdrawal and the right to claim damages instead of performance upon expiry of an adequate period of grace with non-performance. Stipulations in paragraph 5 remain unaffected.
3.5. If the seller is in default we shall be entitled – besides further legal claims – to claim a lump-sum indemnification of our damage caused by default in the amount of 1% of the net price for each calendar week completed but in total not more than 5% of the net price of the goods delayed. We reserve the right to give evidence that higher damage occurred. The seller is entitled to prove that no damage at all or a significantly lower damage occurred.
4.0 Delivery, passing of risks
4.1. Delivery shall be made within Germany ‘free domicile’ to the place stated in the order. If no place of destination is stated and no other agreements are made, delivery shall be made to our plant in Leutkirch. The respective place of destination shall also be the place of delivery (debt to be discharged at creditor’s domicile).
4.2. Without our advance approval in writing the seller shall not be entitled to short or excess delivery.
4.3. A delivery note must be enclosed to the delivery. It must contain the following details: Our company reference number, especially our order or item number, the exact description, the quantity, the weight (gross and net), the type and packaging of the goods. Upon dispatch of the goods by the seller a written advice of dispatch in duplicate is to be sent to us containing the details as mentioned in sentence 2. If the delivery note is missing or is incomplete or if we do not receive the advice of dispatch or if it is incomplete, we do not take any responsibility for resulting delays in handling and payment.
4.4. Referring to the safety data sheets which are to be handed over together with the delivery Art. 10, paragraph 4 applies.
4.5. Upon our request goods must be packed in a special way according to our instructions.
4.6. The risk is not transferred to us until the goods are handed over to us at the agreed destination even if dispatch has been agreed upon.
5.0 Prices, terms of payment
5.1. The price cited in the order is binding. This price does not contain the statutory turnover tax.
5.2. If nothing else has been agreed upon in individual cases prices include all performance and services as well as additional services of the seller (e.g. assembly, installation) as well as all additional costs (e.g. due packaging, transportation costs including possible insurance benefits for transportation or third party liability). Upon request the seller is obliged to take back the packaging material at his own expense.
5.3. The agreed price shall be due within 30 calendar days as from the complete delivery and performance as well as the receipt of a due and testable invoice. For payment within 14 calendar days the seller grants a 3 % discount on the invoice amount. Payment is made by bank transfer or cheque. If due to our annual plant shutdown the discount period cannot be met, we reserve the right to a subsequent deduction.
5.4. We do not owe due date interest. The seller’s right for payment of interest for default is, however, not affected. If and when we enter into default is regulated by the legal provisions. A reminder by the seller is necessary in any case.
5.5. Within the legal scope we are entitled to set-off and withhold payments as well as to defend non-performance of the contract. In particular, we are entitled to withhold due payments as long as there are claims on the basis of incomplete or inadequate performance against the seller.
5.6. The seller is only entitled to set off or withhold payments if the counterclaims are undisputed and legally determined.
The written invoice shall be sent to the address stated in the order. It shall not been closed to the shipment. The invoice must comply with our order and item number and must literally correspond to the terms we used in the order. Your bankdata, BIC code (S.W.I.F.T. code), the tax identification number and IBAN code must be stated as well as the tax number and tax authorities’ number.
7.0 Secrecy, reservation of proprietary rights
7.1. Pictures, drawings, calculations and other documents are the sole property of our company with all rights reserved. Such documents are exclusively to be used for the performance under the contract. They must be returned to us upon expiry of the contract. The documents must be kept secret from third parties, even upon termination of the contract. The obligation to keep secrecy only expires if and when the information in the documents provided has become generally known.
7.2. Without our previous confirmation in writing the seller is not allowed to state our business relationship in his advertising materials, brochures etc. neither is he allowed to exhibit delivery items which were produced for our company.
7.3. The definition in paragraph 1 correspondingly applies to components and materials (e.g. finished product and semi-finished products) as well as to tools, drafts, samples and other items which we put at the seller’s disposal for producing the items. As long as they are not used for production, such items have to be stored separately by the seller at his expense. Insurance against damage and loss shall be made to the usual extent. These items shall only be used for manufacturing the goods. The items provided by us must be stored properly so that they can be used for production at any time. The costs of insurance and maintenance of the goods are divided by the parties to the contract one half each – if not agreed differently. Already now the seller assigns all claims for compensation out of the insurance to us; we hereby accept the assignment.
7.4. If maintenance costs can be ascribed to incorrect use on the part of the seller, his employees or other auxiliary people, they shall be borne by the seller alone. The seller shall immediately inform us on all kinds of damage to these items not only the inconsiderable ones.
7.5. Upon demand the seller is obliged to return these items to us in good condition unless he still needs them for fulfilling the contract concluded with us.
7.6. On our behalf the items provided are processed, blended or joined together by the seller. If, upon processing, blending or joining the items with items of third parties their property rights may still exist, we shall acquire co-ownership in the new item to the proportion of the value of our provided item as against the other items.
7.7. Transfer of the goods to us shall be effected unconditionally, irrespective of the payment of the price. By all means, all forms of an extended or prolonged reservation of property rights shall be excluded so that a reservation of property, which may have been effectively declared by the seller, shall only be valid until the payment of the goods delivered and for these goods only.
8.0 Defective delivery
8.1. Unless agreed to the contrary in the following, the legal provisions concerning liability for defects shall apply.
8.2. As far as the commercial obligation of examination and the obligation to notify defects is concerned, the legal provisions (Art. 377 German Commercial Code) shall apply to the extent as follows: Our obligation of examination is restricted to defects which are visible from outside either at our delivery controls including the examination of the delivery documents or at our quality control through sampling procedures (e.g. damage in transport, wrong deliveries or short deliveries). Furthermore it depends on whether an examination which takes into account the circumstances of the individual case will be possible in the normal course of business. Our obligation to notify defects which are discovered at a later date remains unaffected. In all cases such a complaint (notice of defect) shall be considered prompt and in due time if it reaches the seller’s within 10 working days.
8.3. If the seller does not fulfil his obligation of supplementary performance – at our option either by remedy of deficiencies (rectification) or by delivery of goods free from defects (replacement) – within an adequate period stipulated by us we may carry out remedial actions ourselves and claim compensation for the necessary expenditures or respective advance payments by the seller. If the supplementary performance by the seller failed or is not reasonable for us (e.g. in particularly urgent cases, danger of operational security or imminent disproportional loss) stipulation of a deadline is waived; the seller shall be informed immediately, if possible in advance.
9.0 Supplier’s recourse
9.1. We are unrestrictedly entitled to the legally defined rights of recourse within the supply chain (supplier’s recourse pursuant to Arts 478, 479 German Civil Code) besides the right to claim damages for defects. We are especially entitled to demand exactly that kind of supplementary performance (rectification or replacement) from the buyer which we owe our consumer in the individual case. Our legal right of choosing the cure is not affected hereby (Art. 439 paragraph 1 German Civil Code).
9.2. Before accepting or fulfilling a claim of defect asserted by our customer (including reimbursement of expenditure pursuant to Arts 478, section 439, paragraph 2 GCC) we will inform the seller explaining the facts in short and ask him for a written statement. Unless a statement is submitted within an adequate period of time and a mutual solution is made, the claim of defect actually granted by us is considered to be owed to our customer; in this case the seller is obliged to produce proof of the contrary.
9.3. Our rights to supplier’s recourse also apply if the goods were processed by us or one of our purchasers, e.g. by integrating them into another product, before they are sold to a customer.
10.0 Safety regulations REACH
10.1. As far as the order includes machines, apparatus, vehicles and similar devices, the construction must adhere to the legal laws and accident prevention regulations. The protective guards necessary according to the accident prevention regulations shall be supplied accordingly without a special order or indication.
10.2. If third outside companies are involved in a work and service contract, the seller (service provider) shall meet the industrial safety regulations pursuant to the Guide to Workers’ Health and Safety (GWHS) 865. By accepting the order, the seller confirms that he knows the work protection regulations according to GWHS 865 and that they will be adhered to while processing the order.
10.3. The seller guarantees that the delivered products to the contract meet the regulation No. 1907/2006 for registration, evaluation, authorization and restriction of chemical agents (REACH), in the relevant and effective version.
10.4. The seller is obliged to hand over the valid safety data sheets for each individual delivery together with the delivery. In case of amendments in the safety data sheets an immediate update will be necessary. The new version shall be put at myonic’s disposal free of charge and without request.
11. Environmental Policy
It is our declared aim to continually improve environmental protection and to avoid environmental pollution. This is guaranteed by maintaining the environmental management system. In all our actions the principle of avoidance shall prevail. Should avoidance be impossible the resources used are to be reduced to a minimum. We will influence third companies working for myonic to the extent that their quality of delivery will have a neutral or positive effect on our environmental aims and programmes. Our partners can avail themselves of our environmental policy on our home page http://www.myonic.com/en/company/about-myonic/environmental-policy.html.
12. Manufacturer’s liability
12.1. If the seller is responsible for a product defect he shall exempt us from third parties’ claims insofar as the cause lies within his domain and organisation and he himself is liable against third parties.
12.2. Within his indemnity obligation the seller shall refund expenditure pursuant to Arts 683, 670 German Civil Code arising from or in connection with claims of third parties including product recalls effected by us. We will inform the seller on the contents and extent of product recalls as far as this is possible and reasonable. He will be given the opportunity to make a statement. Further legal claims remain unaffected.
12.3. The seller shall conclude and maintain a product liability insurance with a lump-sum amount of coverage of at least € 5 million per damage to person or property. In the case of goods for the automotive industry the product liability insurance must include the product recall insurance as well. We are to inform the seller in the order whether those goods are involved or not.
12.4. Upon demand the seller is obliged to send us a copy of the corresponding insurance policies at any time.
13.0 Proprietary rights
13.1. In the case of infringements of proprietary rights of third parties in connection with the seller’s performance in countries of the European Union, North America, Japan, China, Brazil, (…) as well as in such countries stated in the order or countries in which the seller produces the goods are has them produced, the seller is liable to compensate us for the damage arisen thereby.
13.2. The seller is obliged to exempt us from all claims lodged by third parties against us due to such an infringement of property rights as mentioned in paragraph 1. He shall reimburse us for all necessary expenses arising from these claims.
13.3. The claims set forth in paragraphs 1 and 2 only apply if the seller intentionally acted accordingly.
13.4. Claims in accordance with paragraphs 1 and 2 are restricted to a period of10 years.
14.0 Choice of law and place of jurisdiction
14.1. Exclusive and – also international – place of jurisdiction for all disputes arising from the contract shall be our registered business location in Leutkirch. However, we are also entitled to institute legal proceedings before the court which is in charge of the seller’s business location.
14.2. For these GTCP and all other legal relations between us and the seller the law of the Federal Republic of Germany shall apply. All international and supranational (contractual) legal provisions, especially the United Nations Convention on Contracts for the International Sale of Goods shall be excluded.