§ 1 General
- These general purchase terms apply to all types of orders (current and future business relationships) rendered by SOMACK Fertigungstechnik GmbH ("purchaser") and their suppliers. Sales or delivery terms to the contrary are hereby expressly contradicted.
- Modifications of these terms must be in writing. Exceptions to the written form are not accepted. Any other terms and conditions of the supplier become a component of the contract only upon written confirmation by the purchaser.
§ 2 Purchase orders and order confirmations
- Only purchase orders placed in writing are binding for the purchaser. Oral orders and understandings are non-binding and require written confirmation by the purchaser.
- The supplier is required to immediately upon receipt to confirm in writing any order, indicating the price and time of delivery.
- If not agreed upon otherwise, the prices shown are fixed prices.
- If the purchase order is not accepted and/or confirmed in writing by the supplier within two weeks from receipt, the purchaser is entitled to cancel the purchase order.
- In the event of an insolvency of the supplier, the purchaser is entitled to withdraw from any orders not yet performed.
§ 3 Delivery times
- Delivery times and periods defined in the contract are binding for the supplier. Delivery times and periods end with the receipt of the shipment at the shipping address specified by the purchaser. In the case of "ex factory" delivery terms, the supplier must provide the shipment so that the time of period can be met, in due consideration of normal loading and shipping times. The supplier will be in default without previous reminder.
- Failure to comply with a delivery date or period for reasons attributable to the supplier will allow the purchaser to specify a reasonable extension for completing the shipment before he is entitled to withdraw from the purchase order, to procure substitutes from third parties and/or request compensation for non-performance by the supplier. The acceptance of a delayed delivery does not constitute a waiver for compensation.
- If the supplier becomes aware of circumstances, even circumstances not attributable to the supplier, preventing a timely delivery or the agreed upon condition, he is required to immediately notify the purchaser of this issue.
- Partial, excess, short and advance deliveries require written approval by the purchaser.
§ 4 Purchaser's performances
- Any material and production resources provided by the purchaser, such as drawings, samples, models or tools remain the sole property of the purchaser. If costs for production resources are assumed by the purchaser in part or in full, these production resources become the property of the purchaser at the same share.
- Upon completion of the performance, the supplier is required, at his own expense, to return the production resources to the purchaser. The supplier is required to ensure their proper maintenance and is liable for any damage.
- Any productions resources, samples, drawings, design services, models and similar are his property and/or intellectual property and must not be disclosed to or used for or by third parties.
- Section 3 also applies for production resources and tools for which the purchaser has assumed the costs in full or in part.
§ 5 Acceptance
- The values, dimensional accuracies, contractual quality, etc. determined by the purchaser's receiving department are binding for the acceptance of the delivery.
- The place of acceptance is solely the shipping or delivery address specified by the purchaser. Any deviations require a written prior confirmation by the purchaser.
- In the event of a defective delivery or performance, the purchaser is entitled to withhold payment until the defect has been remedied.
- In the event of an insolvency of the supplier, the purchaser is entitled to withhold a surety for any warranty claims. The surety shall be withheld until the expiry of the period of limitation for warranty claims and is determined in an appropriate amount by the purchaser. The amount is, in any case, at least 10% of the total order value.
§ 6 Warranty, notices of defect
- The specification and quality of the shipment defined in the contract is binding and assured by the supplier. If the delivery displays a deviation from the contractually agreed upon specification, the assured quality, the information from ordering catalogues or similar, the purchaser is entitled to demand rectification, reduction in price, new delivery, rework on-site or compensation for non-compliance. Any further claims for damage are not affected by the option selected.
- Delivered goods not meeting the contract requirements are returned to the supplier at the expense of the supplier.
- The period of limitation for claims for damage is two years, if not otherwise stipulated by law.
§ 7 Transfer of risk
- The supplier bears the risk of damage and loss of the goods until the purchaser or his representatives have accepted the delivery at the specified place of delivery.
- In the case of a delivery with installation at the purchaser or a third party, the risk will be transferred only at the time of acceptance by the purchaser or his representative.
§ 8 Invoicing
- Invoices are only recognized when they meet the generally accepted accounting standards and contain the purchase order number, vendor number, article numbers, quantities and prices per unit.
- If not otherwise agreed upon in the contract, payment with 14 fays is subject to a 3 % cash discount. Apart from the above, the period allows for payment is 60 days from receipt of the invoice if the corresponding delivery was complete.
- Payment of an invoice does not constitute the acknowledgement of proper executed delivery of the contractual performance.
§ 9 Supplier liability
- The supplier is required to obtain a sufficient manufacturer's and product liability insurance and to provide evidence of the same when so requested by the purchaser.
- The purchaser is entitled to compensation for all damages incurred due to the delivery by the supplier, in particular, for all costs incurred due to hidden defects and all costs incurred to meet his own delivery times and any other subsequent costs arising from the defect or non-compliance. This obligation to pay compensation does not apply when the supplier is able to prove that he is not at fault, unless applicable laws make him liable even without fault.
- If an entire series in which the performance is installed, must be replaced and if this necessity is due to a defect in the supplier's performance, he is also liable for the replacement of the non-defective products of the series when an analysis of the series is not possible or unreasonable.
- The supplier is liable for damages arising from ignoring safety regulations at the current state-of-the-art.
- If the manufacturer's liability of the purchaser arises due to a defect in the supplier's performance, the purchaser will be indemnified or the manufacturer's liability. The supplier shall bear all costs arising from the manufacturer's liability and assume any recall expenses.
- The supplier provides the performance free of third-party rights. In the event of the utilisation of the rights of third-parties, the supplier has to reimburse for all arising costs, in particular the costs for litigation, compensation, retrofitting and construction costs.
§10 Final clauses
- The law of the Federal Republic of Germany shall apply to the exclusion of all international agreements concerning the sales of goods.
- The place of performance by the supplier is the shipping address stipulated in the contract and for payment 35325 Mücke, Germany.
- Court of jurisdiction for disputes arising from the performance and/or the contract, is the court having jurisdiction for the head office of the purchaser.
- In the event that individual clauses of these purchase and delivery terms be or become invalid, the legal effectiveness of the remaining (partial) clauses is not affected. Invalid clauses shall be replaced by the purchaser and the supplier by clauses being closest to the intended purpose of the invalid clause.
- The contract language is German.
General business and delivery terms of SOMACK Fertigungstechnik GmbH, Mücke, Germany, for commercial or self-employed contract partners.