General Terms and Conditions of Purchase
1. General Information
These general terms and conditions of purchase of DANQUINSA GmbH (“Buyer”) apply exclusively to the purchase of goods based on orders placed by the Buyer. We acknowledge provisions of the Supplier that conflict with or deviate from our terms and conditions of purchase only if we consent to their applicability expressly and in writing. Our terms and conditions of purchase apply even if we are aware of the Supplier’s provisions that conflict with or deviate from our terms and conditions of purchase and nevertheless accept or provide payment for the delivery without reservation. These terms and conditions of purchase also apply to all future transactions with the Supplier to the extent that they are of a similar nature.
2. Contract Conclusion / Offers
Enquiries made by the Buyer to the Seller regarding goods and conditions of delivery or requests by the Buyer for a draft contract are not binding on the Buyer. The Supplier shall accept our order within two weeks following the order date. Call-offs under an order and call-off plan are binding if the Supplier does not oppose the call-off within three working days of receiving it. Delayed or modified acceptances do not constitute a new offer, but rather a non-binding draft contract. Orders, contracts and call-offs must be made in writing. Verbal agreements of any kind—including subsequent amendments—are binding only if confirmed by us in writing or electronically (via email). Draft contracts and quotes are binding and shall not be compensated unless expressly agreed otherwise. Unless agreed separately in individual cases, we shall assume no costs and provide no compensation for visits, planning and other preliminary work undertaken by the Supplier in connection with the provision of offers.
3. Prices / Invoice / Payment Terms
The agreed prices are binding. Prices apply for delivery “DDP Dettenhausen/Germany” including packaging, carriage, insurance and other such costs (exception: deliveries in road tanker). Unless agreed otherwise in our orders and call-offs, we shall pay the price within 14 days following receipt of the invoice with a discount of 3% or within 30 days of receipt of the invoice net. A prerequisite for payment is the provision of a duly issued and verifiable invoice in accordance with Section 14(4) of the German Value Added Tax Act (Umsatzsteuergesetz, UStG). If the Buyer is delayed in processing an invoice in the course of its ordinary business processes because one or more of these details is missing or is incorrect, the term of payment defined in sentence 1 will be extended by the duration of the delay. The term of payment commences upon receipt of the Supplier’s invoice; however, not before complete delivery or acceptance of the goods owed to us. Our written consent is required for partial payments or the invoicing of partial performance rendered. The invoice is to be supplied in duplicate. Payments do not constitute acknowledgement of the delivery or service as in compliance with the contract.
4. Delivery / Inspection of Defects /Quality Assurance
The Supplier warrants that the goods meet the agreed specification. The drawings, dimensions, tolerances, standards, quality etc. (specification requirements) stipulated by us apply. Any deviating documents and details provided by the Supplier, such as illustrations, drawings, weights and dimensions, require our consent. The Buyer shall check the goods following delivery only with regard to the identity (whether they match the goods detailed in the order or the call-off), completeness, transport damage and other damage visible externally. The Buyer shall notify the Supplier of any incorrect or deficient deliveries and any damage without delay. Beyond this, the Buyer is not obligated to inspect the goods supplied in accordance with Section 377(1) of the German Commercial Code (Handelsgesetzbuch, HGB). The Supplier shall instead perform an outgoing goods inspection. Prior to delivery to the Buyer, the Supplier shall inspect and test the goods in an adequate manner and provide the corresponding inspection documents to the Buyer at the Buyer’s request. The Supplier shall grant the Buyer or its authorized representatives, with prior notice and during normal business hours, unrestricted access to allow the Buyer to test or inspect the goods or check their compliance with the Buyer’s specification requirements.
5. Delivery Deadlines and Default on Delivery
The delivery dates or periods specified in orders are binding and are understood to be fulfilled at the place of performance.
Goods receipt times: Monday – Friday: 8:00“ – 15:30“, or individual commitment.
We are not obligated to accept partial deliveries and/or advance deliveries or advance performance unless written confirmation is provided by the Buyer in advance. The Supplier shall notify us immediately in writing, specifying the reasons and the expected delay, should circumstances arise or come to the Supplier’s attention that make it impossible to adhere to the agreed delivery or performance date. If the Supplier is in default, we are entitled to assert our statutory claims and, in particular, following the unsuccessful expiry of a reasonable period of time, to request compensation in lieu of performance and to withdraw from the contract. If we request compensation, the Supplier has the right to prove to us that it is not responsible for a breach of duty. In the event of a delay in delivery, we are entitled to request a contractual penalty of 0.1% of the delivery value per working day, however no more than 5% of the total delivery value. We are entitled to claim a contractual penalty in addition to fulfilment. We shall notify the Supplier of our reservation of the right to claim a contractual penalty within 10 working days following receipt of the delayed delivery at the latest. The right to assert further claims and rights remains reserved. If the damage caused by the delay exceeds the contractual penalty claimed, the contractual penalty will be offset against such further damage. The acceptance of the delayed delivery or performance without reservation does not constitute a waiver of the claims for compensation to which we are entitled on account of the delayed delivery or performance. This applies until the payment owed by us for the service concerned has been made in full. The Supplier may rely on a lack of necessary documents to be supplied by us only if the Supplier issued a written reminder for the documents and did not receive said documents within a reasonable period of time.
The Supplier warrants that the deliveries or services meet the agreed specifications and do not have any defects that negate or reduce their value or their suitability for normal or contractual use. We shall perform an incoming goods inspection only within the scope described in Section 4. We reserve the right to perform a more extensive incoming goods inspection. Furthermore, we shall provide notification of any defects as soon as they are detected during the ordinary course of business. The Supplier shall waive the right to object to the delayed notification of defects in this respect. We are entitled to the statutory claims for defects in full. We are in any case entitled to request from the Supplier at our option the rectification of the defect or the delivery of a new item. The right to compensation, in particular the right to compensation in lieu of performance, remains expressly reserved. Claims for defects—irrespective of the legal basis—lapse 36 months following delivery. Longer contractual or statutory limitation periods remain unaffected by this provision.
7. Property Rights
The goods become the Buyer’s property upon full payment. Any extended or expanded retention of title by the Supplier with respect to the goods is excluded. Any risk of loss remains with the Supplier until the goods have been delivered to the Buyer in full.
8. Third Party Intellectual Property Rights
The Supplier warrants that no third-party intellectual property rights are infringed by the supply and use of the goods. We shall notify the Supplier of any claims asserted by third parties. We shall not acknowledge any such claims ourselves. To this extent, we authorize the Supplier to handle the dispute with the relevant third parties in and out of court. For its part, the Supplier shall notify the Buyer immediately in writing if a third party asserts claims based on an existing intellectual property right or if there is a threat of such claims. In the event of the culpable infringement of third-party intellectual property rights, the Supplier shall, at its own expense, defend against claims brought against us by third parties on account of the infringement of intellectual property rights in relation to the Supplier’s deliveries and services. The Supplier shall indemnify us against any claims that arise from the use of such rights to the extent that the Supplier is responsible for them. If our use of the delivery is impaired by existing third-party intellectual property rights, the Supplier shall at its expense either obtain the relevant approval or modify or replace the elements of the delivery affected such that the use of the delivery no longer infringes third-party intellectual property rights and the delivery still complies with the contractual agreements.
9. Product Liability / Liability Insurance
Where the Supplier is responsible for product damage, the Supplier shall, on first request, pay compensation or indemnify us against third-party compensation claims in this regard where the cause is within the Supplier’s sphere of control and organization and the Supplier is itself liable to third parties. In this context, the Supplier shall also reimburse any expenses that arise from or in connection with a recall by us. To the extent possible and reasonable, we shall inform the Supplier of the content and scope of the recall measures to be undertaken and give the Supplier the opportunity to provide a statement. The right to assert other statutory claims remains unaffected.
10. Confidentiality / Information
We retain the rights of ownership and copyright to all documents provided to the Supplier in connection with the order, such as designs, formulae, data, calculations, drawings etc. The Supplier shall not disclose or make said documents available to third parties unless we give the Supplier our express and written consent to do this. These documents are to be used exclusively for the purposes of manufacturing for our order. The documents must be returned to us immediately if the Supplier does not accept our order within the period defined in Section 2. If our order is accepted, the documents must be returned to us unprompted upon completion of the order at the latest. The obligation to maintain confidentiality continues to apply after this contract has been executed. The obligation ceases to apply if and to the extent that the manufacturing knowledge contained in the illustrations, drawings, calculations and other documents have become general knowledge. The Supplier, its vicarious agents and any subcontractors that it uses shall maintain confidentiality regarding all information that they acquire during and on account of service provision, including after the cooperation between us and the Supplier ends, and shall use said information only for the purposes of fulfilling contractual obligations. The Supplier shall ensure that the data made available to it, its vicarious agents and any subcontractors that it uses to perform the services is handled with care indefinitely.
11. Supplied Materials and Tools
To the extent that we provide parts to the Supplier, we shall retain ownership of these parts. These parts must always be labelled as the property of the Buyer. Any processing or alterations made by the Supplier will always be undertaken in our interests. If our goods subject to retention of title are processed with other items that do not belong to us, we shall acquire co-ownership of the new item based on the ratio of the value of our item (purchase price plus VAT) to the other items processed at the time of processing. If the item that we supplied is irreversibly joined to or combined with other items that do not belong to us, we shall acquire co-ownership of the new item based on the ratio of the value of the item subject to retention of title (purchase price plus VAT) to the other combined items at the time they are combined. If the items are combined in such a way that the Supplier’s item is regarded as the main item, it is agreed that the Supplier shall transfer co-ownership to us on a pro rata basis; the Supplier shall preserve sole ownership or co-ownership for us. We retain the right of ownership to tools; the Supplier shall use the tools exclusively for the purposes of manufacturing the goods that we ordered and shall label the tools as belonging to the Buyer. The processing, combining or connecting (processing) of tools belonging to the Buyer is prohibited. The Supplier shall insure the tools belonging to us at replacement value at its own expense against fire and water damage and against theft. The Supplier shall perform any maintenance and inspection work required on our tools, as well as any repair work, at its own expense in a timely manner. The Supplier shall notify us of any failures immediately; if the Supplier culpably fails to do so, our right to claim compensation remains unaffected. If the security interests to which we are entitled under No. 11.1 or 11.2 exceed the purchase price of all our as yet unpaid goods subject to retention of title by more than 10%, we shall, at the Supplier’s request, release the relevant security interests at our discretion.
12. Final Provisions
All agreements concluded between the parties for the purposes of executing this contract are laid down in this contract. There are no verbal side agreements. Any amendments or supplements to this contract, including this written form clause, must be made in writing. The Supplier may not assign any order, any claim against the Buyer or the contract itself, either in whole or in part, to a third party without the Buyer’s prior written consent. The place of performance is the location where the goods are to be supplied in accordance with the order.
13. Place of Performance and Court of Jurisdiction
The exclusive place of jurisdiction for all disputes arising from this contract is Tübingen, Germany.
However, we are also entitled to bring an action against the Supplier at the place of jurisdiction where the Supplier is based. The law of the Federal Republic of Germany applies, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
14. Invalidity of Clauses
Should one or more provisions of these terms and conditions or contractual clauses be or become invalid, either in whole or in part, or should this contract contain gaps or omissions, this will not affect the validity of the remaining provisions and clauses. The parties shall replace the invalid provision with another provision that is valid and reflects the economic purpose of the invalid or missing provision as closely as possible.