General Terms and Conditions of Purchase / myonic GmbH / Leutkirch
1.0 General Statements, Scope of Application
1.1 These General Terms and Conditions of Purchase (hereinafter: GTCP) shall apply to all business relations (in particular contracts, deliveries and other services) with our business partners and suppliers (hereinafter: Seller). The GTCP shall only apply if the Seller is an entrepreneur (pursuant to § 14 German Civil Code).
1.2 The GTCP apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter: Goods), irrespective of whether the Seller manufactures the Goods itself, purchases them from suppliers or uses materials provided by us in the manufacture (§§ 433, 651 German Civil Code). The GTCP in their respective version shall also apply as a framework agreement for future contracts for the sale and/or delivery of movable Goods with the same Seller without us having to refer to them again in each individual case.
1.3 These GTCP shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Seller or third parties shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. The requirement of consent shall apply in any case, for example even if we accept the Seller’s delivery without reservation in the knowledge of the Seller’s General Terms and Conditions.
1.4 Individual agreements made with the Seller in individual cases (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTCP. A written contract or our written confirmation shall be authoritative for the content of such agreements.
1.5 Legally relevant declarations and notifications to be made to us by the Seller after conclusion of the contract (e.g. setting of deadlines, reminders, declaration of withdrawal) shall be made in writing in order to be effective.
1.6 References to the applicability of statutory provisions shall only have a clarifying meaning. Even without such clarification, the statutory provisions shall, therefore, apply unless they are directly amended or expressly excluded in these GTCP.
2.0 Conclusion of Contract
2.1 Our order (Offer) shall be deemed binding at the earliest upon written submission or confirmation. The Seller shall inform us about obvious errors (e.g. typing and calculation mistakes) and incompleteness of the order, including of the order documents, for the purpose of correction or completion before Acceptance.
2.2 The Seller is required to confirm our order in writing within a period of 10 days after receipt of our order (Acceptance). A delayed Acceptance shall be deemed a new Offer and shall require Acceptance by us.
3.0 Delivery Time, Delay in Delivery
3.1 The delivery time (delivery date or period) specified by us in the order is binding. Early deliveries are not permitted.
3.2 The Seller is obliged to inform us immediately in writing if circumstances occur or become apparent according to which the delivery time can probably not be met.
3.3 If the day on which the delivery shall be made at the latest can be determined on the basis of the contract, the Seller shall be in default on expiry of this day, without this requiring a reminder on our part.
3.4 In the event of a delay in delivery, we shall be entitled to the statutory claims without limitation, including the right to withdraw from the contract and the claim for damages instead of performance after the fruitless expiry of a reasonable grace period. The provision of paragraph 5 remains unaffected.
3.5 If the Seller is in default, we may – in addition to further statutory claims – demand lump-sum compensation for our damage caused by default in the amount of 1% of the net price per completed calendar week, but in total not more than 5% of the net price of the Goods delivered late. We reserve the right to prove that we have incurred higher damages. The Seller reserves the right to prove that we have not incurred any damage at all or that the damage is significantly lower.
4.0 Delivery, Transfer of Risk
4.1 Delivery shall be made “free domicile” within Germany to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, the delivery shall be made to our factory in Leutkirch. The respective place of destination is also the place of performance (obligation to deliver).
4.2 The Seller is not entitled to make excess or short deliveries without our prior written consent.
4.3 The delivery shall be accompanied by a delivery note. This shall contain the following information: Our company reference number, in particular our order number and article number, the exact designation, the quantity, the weight (gross and net), the type and packaging of the Goods. After the Goods have been dispatched by the Seller, a written dispatch note in duplicate shall be sent to us containing the information in accordance with sentence 2. If the delivery note is missing or incomplete or if we do not receive the dispatch note or if it is incomplete, we shall not be responsible for any delays in processing and payment resulting therefrom.
4.4 With regard to the safety data sheets to be handed over with the delivery, Art. 10, paragraph 4 shall apply.
4.5 Upon our request, the Goods shall be provided with special packaging in accordance with our instructions.
5.0 Prices, Terms of Payment
5.1 The price stated in the order is binding. This price does not include the statutory value added tax.
5.2 Unless otherwise agreed in individual cases, the price shall include all services and ancillary services of the Seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance). Upon our request the Seller shall, at its own expense, take back packaging material.
5.3 The agreed price shall be due for payment within 30 calendar days of complete delivery and performance and receipt of a proper and auditable invoice. If we make payment within 14 calendar days, the Seller shall grant us a 3% discount on the invoice amount. Payment shall be made by bank transfer or cheque. Should it not be possible to meet the discount deadline due to our company holidays, we reserve the right to make a subsequent deduction.
5.4 We do not owe any interest on maturity. The Seller’s claim to payment of interest on arrears remains unaffected. In the event of our default, the statutory provisions shall apply. In any case, however, a reminder by the Seller is required.
5.5 We shall be entitled to rights of set-off and retention as well as the defence of non-performance of the contract to the extent provided by law. In particular, we are entitled to withhold due payments as long as we are still entitled to claims against the Seller arising from incomplete or defective performance.
5.6 The Seller shall only have a right of set-off or retention on the basis of counterclaims that have been legally established or are undisputed.
The written invoice shall be sent to our address stated in the order. It shall not be enclosed with a consignment. The invoice shall comply with our order and article number and the wording shall correspond to the terms used in the order. Your bank details, BIC code (S.W.I.F.T. code), VAT- identification number, IBAN code as well as the tax and tax authority number shall be stated.
7.0 Secrecy, Retention of Title
7.1 We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. Such documents shall to be used exclusively for the contractual performance and shall be returned to us after completion of the contract. The documents shall be kept secret from third parties, even after termination of the contract. The obligation to maintain secrecy shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known.
7.2 Without our prior written consent, the Seller may not refer to the business relationship in advertising material, brochures, etc. and may not exhibit delivery items manufactured for us.
7.3 The provision of paragraph 1 shall apply accordingly to substances and materials (e.g. finished and semi-finished products) as well as to tools, templates, samples and other items which we provide to the Seller for production. Such items shall – as long as they are not processed – be kept separately at the Seller’s expense and insured to the usual extent against destruction and loss. They may only be used for the production of the Goods. The items provided by us shall be maintained in a condition suitable for production. Unless otherwise agreed, the contracting parties shall each bear half of the costs of insuring and maintaining these items. The Seller hereby assigns to us all claims for compensation arising from the insurance; we hereby accept the assignment.
7.4 Insofar as maintenance costs are attributable to improper use on the part of the Seller, its employees or other vicarious agents, they shall be borne solely by the Seller. The Seller shall notify us immediately of any damage to these items that is not merely insignificant.
7.5 Upon request, the Seller shall be obliged to return these items to us in proper condition if they are no longer required by the Seller for the performance of the contracts concluded with us.
7.6 Any processing, mixing or combining of provided items by the Seller shall be carried out on our behalf. If, in the event of processing, mixing or combining with items of third parties, their ownership rights remain, we shall acquire co-ownership of the new item in the ratio of the value of our provided item to the other items.
7.7 The transfer of ownership of the Goods to us shall be unconditional and without regard to the payment of the price. In any case, all forms of extended or prolonged retention of title are excluded, so that any retention of title effectively declared by the Seller shall only apply until payment of the Goods delivered to us.
8.0 Defective Delivery
8.1 Unless otherwise agreed below, the statutory provisions on liability for defects shall apply.
8.2 The statutory provisions (§ 377 German Commercial Code) shall apply to the commercial duty to inspect and give notice of defects, subject to the following: Our duty to inspect shall be limited to defects which become apparent during our incoming Goods inspection by means of external examination including the delivery papers as well as during our quality control by means of random sampling (e.g. transport damage, wrong delivery and short delivery). In all other respects, it shall depend on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later remains unaffected. In all cases, our complaint (notice of defect) shall be deemed to have been made without delay and in good time if it is received by the Seller within 10 working days.
8.3 If the Seller fails to fulfil its obligation to provide supplementary performance – at our discretion by remedying the defect (rectification) or by delivering an item free of defects (replacement) – within a reasonable period of time set by us, we may remedy the defect ourselves and demand reimbursement of the expenses required for this from the Seller or a corresponding advance payment. If the supplementary performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency, risk to operational safety or imminent occurrence of disproportionate damage), no deadline is required; the Seller shall be informed immediately, if possible in advance.
9.0 Supplier‘s Recourse
9.1 We shall be entitled to our statutory rights of recourse within a supply chain (supplier recourse pursuant to §§ 478, 479 German Civil Code) in addition to the claims for defects without restriction. In particular, we are entitled to demand exactly the type of supplementary performance (rectification or replacement) from the Seller that we owe our customer in the individual case. Our statutory right of choice (§ 439 paragraph 1, German Civil Code) shall not be affected hereby.
9.2 Before we acknowledge or fulfil a claim for defects asserted by our customer (including reimbursement of expenses pursuant to §§ 478 paragraph 3, 439 paragraph 2, German Civil Code), we shall notify the Seller and request a written statement, briefly explaining the facts. If the statement is not made within a reasonable period of time and if no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer; in this case, the Seller shall be obliged to prove the contrary.
9.3 Our claims from supplier recourse shall also apply if the Goods have been further processed by us or by one of our customers, e.g. by incorporation into another product, prior to their sale to a consumer.
10.0 Safety Regulations, REACH
10.1 Insofar as the order involves machines, apparatus, vehicles and the like, the execution shall comply with the applicable laws and accident prevention regulations. The protective devices required by the accident prevention regulations shall also be supplied without the need for a special order or instruction.
10.2 When using external companies within the framework of contracts for work and services, the Seller (service provider) shall comply with the occupational health and safety regulations in accordance with the Guide to Worker’s Health and Safety (GWHS) 865. By accepting the order, the Seller confirms that the occupational health and safety regulations in accordance with GWHS 865 are known and will be complied with during the execution of the order.
10.3 The supplier is obliged to comply with all applicable laws, legal provisions, norms and standards with regard to the ingredients and materials of the products, in particular the RoHS and REACH regulations together with the annexes as well as the applicable provisions on other hazardous substances and conflict materials in the respective valid version at the time of delivery. Declarations of conformity shall be issued and provided upon request.
10.4 The Seller is obliged to hand over the safety data sheets applicable to its delivery with the delivery. If changes are made to the safety data sheet, it shall be updated without delay and made available to us free of charge and without being requested to do so.
11.0 Environmental Policy
It is our goal to continuously improve environmental protection and to avoid environmental pollution. We ensure this by maintaining the environmental management system. In all our actions the principle of avoidance shall prevail. Where avoidance is not possible, the resources used are to be reduced to a minimum. We want to influence the external companies commissioned by us to the extent that their delivery quality has a neutral or positive effect on our environmental goals and programmes. Our environmental policy is available on our homepage: http://www.myonic.com/unternehmen/ueber-myonic/umweltpolitik.html.
12.0 Human Rights and Environment
12.1 Some of our customers are direct regulatory addressees of the due diligence in the Supply Chain Act (LkSG) and will, therefore, require us to act in a human rights and environmentally compliant manner when implementing it and to ensure that our suppliers act accordingly.
12.2 Therefore, we have to ensure that the Seller, as our supplier, undertakes not to violate any of the risks listed in § 2 paragraph 2 LkSG (human rights risks) and § 2 paragraph 3 LkSG (environmental risks). In addition, the Seller shall endeavour to pass on these obligations to its suppliers as well.
12.3 If we or our customers discover that the Seller violates human rights or environmental protection or that a risk of such violation exists, the Seller will take measures to eliminate the risk or violation without being required to do so or without delay after being required to do so.
13.0 Producer Liability
13.1 If the Seller is responsible for product damage, it shall indemnify us against third-party claims to the extent that the cause lies within its sphere of control and organisation and it is itself liable in relation to third parties.
13.2 Within the scope of its indemnification obligation, the Seller shall reimburse expenses pursuant to §§ 683, 670 German Civil Code arising from or in connection with a claim by third parties including recall actions effected by us. We shall inform the Seller about the content and scope of recall measures – insofar as this is possible and reasonable – and give the Seller the opportunity to make a statement. Further legal claims remain unaffected.
13.3 The Seller shall conclude and maintain product liability insurance with a lump-sum coverage of at least € 5 million per personal injury/property damage. In the case of Goods for the automotive industry, the product liability insurance shall also include product recall insurance. We shall inform the Seller in the order whether such Goods are for automotive industry or not.
13.4 The Seller is obliged to provide us with a copy of the respective policy at any time upon our request.
14.0 Property Rights
14.1 In the event of an infringement of third parties‘ property rights 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 manufactures the Goods or has them manufactured, the Seller shall be obliged to compensate us for the resulting damage.
14.2 The Seller is obliged to indemnify us against all claims made by third parties against us due to the infringement of property rights referred to in paragraph 1 and to reimburse us for all necessary expenses in connection with such claim.
14.3 The claims pursuant to paragraphs 1 and 2 shall only exist in the event of culpable action on the part of the Seller.
14.4 The limitation period for claims under paragraphs 1 and 2 is 10 years.
15.0 Choice of Law, Place of Jurisdiction
15.1 The exclusive – also international – place of jurisdiction for all disputes arising from the contractual relationship is our registered business location in Leutkirch. However, we shall also be entitled to bring an action at the court having jurisdiction for the registered office of the Seller.
15.2 These GTCP and all legal relationships between us and the Seller shall be governed by the laws of the Federal Republic of Germany. All international and supranational (contractual) legal provisions, in particular the United Nations Convention on Contracts for the International Sale of Goods shall be excluded.