General Terms and Conditions of Purchase

A.    General information

  1. For all orders placed by us, Zeller + Gmelin GmbH & Co. KG, Schlossstraße 20, 73054 Eislingen/Fils, the following Terms and Conditions of Purchase shall apply for the duration of the business relationship, even if they are not mentioned in subsequent contracts. In addition, the principles of our “Sustainability Policy for Suppliers” apply in accordance with Lit. N below.
  2. Conflicting, additional or deviating terms and conditions of the supplier shall not become part of the contract unless we have expressly agreed to their validity in writing.
  3. With the acceptance of the order, but at the latest with the start of its execution, the supplier recognizes the exclusive validity of these terms and conditions of purchase.
  4. Additional or deviating agreements to these Terms and Conditions of Purchase made between us and the supplier for the execution of a contract must be set out in writing in the contract. This also applies to the waiver of this written form requirement.
  5. These Terms and Conditions of Purchase shall also apply if we accept a delivery from the supplier without reservation despite being aware of the supplier’s conflicting or deviating terms and conditions.
  6. Rights to which we are entitled under the statutory provisions over and above these Terms and Conditions of Purchase shall remain unaffected.

B.    Orders, conclusion of contract

  1. Orders, their amendments or additions as well as other agreements made at the time of conclusion of the contract shall only become binding if they have been issued by us in writing or in text form or, in the case of verbal or telephone orders, have been confirmed in writing or in text form.
  2. Silence on our part in response to offers, requests or other declarations by the Supplier shall not have any legally binding explanatory value. Insofar as the order contains obvious mistakes, typing or calculation errors, it is also not binding for us.
  3. Unless otherwise agreed, cost estimates are binding and shall not be remunerated by us.
  4. The Supplier shall issue an order confirmation without delay, but no later than seven (7) calendar days after receipt of the order, in which the price and delivery date are expressly confirmed. Decisive is the timely receipt of the order confirmation by us. Delayed acceptance by the supplier shall be deemed a new offer and requires our acceptance. Deviations in the order confirmation from the order shall only be deemed to have been agreed if they have been expressly confirmed by us in writing or in text form.
  5. Delivery call-offs shall become binding if the supplier does not object to them within five (5) working days of receipt.
  6. Force majeure
  7. If we are prevented by force majeure from fulfilling our contractual obligations, in particular from accepting the goods, we shall be released from the obligation to perform for the duration of the hindrance and a reasonable start-up period, without being obliged to pay compensation to the supplier. The same applies if the fulfillment of our obligations is made unreasonably difficult or temporarily impossible due to unforeseeable circumstances for which we are not responsible, in particular due to epidemics and pandemics, official measures such as quarantine orders, power shortages or significant operational disruptions. The same applies to industrial action that affects us.
  8. We are entitled to withdraw from the contract if such an impediment in accordance with the above clause 1. lasts for more than four months and the fulfillment of the contract is no longer of interest to us as a result of the impediment. At the supplier’s request, we shall declare after expiry of the deadline whether we will exercise this right of withdrawal or accept the goods within a reasonable period of time.
  9. Delivery, delivery dates, delay
  10. Agreed delivery times are binding. Delivery periods run from the date of the order.
  11. The handover of the goods to us (in the case of agreed delivery “free domicile” or DDP according to Incoterms® 2020) or the timely provision of the goods to the supplier (in the case of agreed delivery “ex works” – EXW according to Incoterms® 2020), taking into account the time for loading and dispatch to be agreed with the forwarding agent, shall be decisive for compliance with the delivery time.
  12. If it becomes apparent to the supplier that the delivery time cannot be met, he must inform us immediately in writing, stating the reasons and the expected duration of the delay. If the supplier is in default of performance, we shall be entitled to withdraw from the contract after the fruitless expiry of a reasonable grace period. Further claims remain unaffected.
  13. In the event of delay on the part of the Supplier, we shall be entitled to demand a contractual penalty of 0.5 % of the net order value for each commenced week of delay, up to a maximum of 5  % of the net order value. Further claims on our part remain unaffected. The contractual penalty shall be set off against the damage caused by delay to be compensated by the supplier. Our delivery claim shall only be excluded if the supplier pays compensation instead of delivery at our request. Acceptance of late delivery does not constitute a waiver of claims for damages.
  14. The unconditional acceptance of a delayed delivery or service does not constitute a waiver of claims for compensation to which we are entitled due to the delay. Claims for compensation can be made by us until the purchase price owed by us has been paid in full.
  15. Delivery before the agreed delivery time is only permitted with our prior written consent. We are entitled to return prematurely delivered goods at the supplier’s expense or to store them at the supplier’s expense until the agreed delivery date.
  16. Partial deliveries and excess or short deliveries are not permitted, unless otherwise agreed. We reserve the right to recognize them in individual cases.

C.    Transfer of risk and shipment

  1. The supplier shall bear the risk of accidental loss or accidental deterioration of the goods until they are accepted by us (“free domicile” or DDP in accordance with Incoterms® 2010). If the supplier is obliged to install or assemble the goods on our premises, the risk shall not pass to us until the goods are put into operation.
  2. The goods must be packed in such a way as to avoid damage during transportation. Packaging materials are only to be used to the extent necessary for this purpose. Only environmentally friendly, recyclable packaging materials may be used.

D.    Delivery bill, invoice

  1. Delivery bills and shipping documents must be marked with our order number, the supplier number, our material number and the place of delivery.
  2. Invoices shall be sent to us separately from the goods immediately after dispatch in duplicate to the invoice address stated in the order.

E.    Prices and terms of payment

  1. The price stated in the order is binding. In the absence of a written agreement to the contrary, the prices are “free domicile” duty paid (or DDP in accordance with Incoterms® 2020) including packaging and all ancillary costs.
  2. The statutory value added tax is not included in the price quoted and must be shown separately by the supplier at the time of invoicing at the applicable rate. If VAT is not shown separately, it is included in the price.
  3. Payment shall be made after transfer of risk and receipt of the invoice within fourteen (14) days less a 3 % discount or within thirty (30) days net. Payment is made subject to the reservation of invoice verification. In the event of defective delivery, we shall be entitled to withhold payment until proper fulfillment without loss of rebates, discounts or similar price reductions. The payment period shall commence after the defects have been fully remedied. In the event of early delivery, the payment period shall not commence until the agreed delivery period has expired.
  4. Movable items shall become our property free of encumbrances at the latest upon payment. Payments shall only be made to the supplier. Extended or prolonged reservations of title are not permitted.
  5. Counterclaims of the supplier shall only entitle him to offset or to assert a right of retention if they have been legally established or are undisputed.

F.    Quality, warranty, notice of defects, claims for defects, damages

  1. The supplier warrants that the delivery items are free of material defects within the meaning of § 434 BGB, in particular that they comply with the agreed specifications, the purpose of the contract, the latest state of the art, the relevant legal provisions and the regulations and guidelines of authorities, trade associations and professional associations. Irrespective of this, the supplier must constantly check the quality of the delivery items. The contractual partners will inform each other about the possibilities of quality improvement.
  2. The supplier expressly warrants the suitability for the intended purpose, insofar as such a purpose has been agreed.
  3. Unless otherwise agreed, the statutory warranty rights shall apply.
  4. Immediately after acceptance of the goods, we shall check, insofar as this is feasible in the ordinary course of business, whether the quantity and identity correspond to the order and whether there is any externally recognizable transport damage. If a defect is discovered during these inspections or later, we must notify the supplier immediately after the inspection or after discovery, insofar as this is feasible in the ordinary course of business.
  5. In the event of a defective delivery, the following shall apply without prejudice to statutory claims for defects:
  6. a) We are entitled, at our own discretion, to demand that the supplier rectify the defects or deliver defect-free goods as subsequent performance. The supplier shall bear the expenses necessary for the purpose of subsequent performance.
  7. b) If the defect in the delivery of raw materials or semi-finished goods is only discovered at a time when the goods have already been further processed, we shall be entitled to demand compensation for the damage suffered in this respect in addition to subsequent performance.
  8. Claims for defects shall become time-barred after three (3) years – except in cases of fraudulent intent. The limitation period begins at the time of the transfer of risk in accordance with Lit. E.1.
  9. If the supplier fulfills its obligation of subsequent performance by delivering a replacement, the limitation period for the goods delivered as a replacement shall begin anew after acceptance.

G.     Property rights of third parties

  1. The supplier warrants that the delivery and use of the goods does not infringe any third-party property rights.
  2. If claims are asserted against us by a third party due to the delivery and use of the goods or the right because of an infringement of such rights, the supplier is obliged to indemnify us against these claims on first demand. The indemnification obligation also applies to all expenses incurred in connection with the claim.
  3. In the event of claims for damages by the third party, the Supplier reserves the right to prove that it is not responsible for the infringement of the third party’s rights.
  4. The limitation period is three (3) years, calculated from the transfer of risk.

H.     Product liability

  1. Insofar as the supplier is responsible for product damage, he shall be obliged to indemnify us against claims for damages by third parties upon first request to the extent that the cause lies within his sphere of control and organization and he himself is liable in relation to third parties. The indemnification obligation also applies to all expenses incurred in connection with the claim. Further claims on our part remain unaffected.
  2. Within the scope of its own liability for cases of damage within the meaning of the above clause 1., the supplier is also obliged to reimburse us for any expenses arising from or in connection with a warning, replacement or recall action lawfully carried out by us. We shall inform the supplier of the content and scope of such a measure – as far as possible and reasonable – in good time in advance and give him the opportunity to comment.
  3. The supplier undertakes to maintain product liability insurance of an appropriate amount, which also covers the risk of recall.

i.    Execution of work, construction services

  1. Persons who carry out work on our factory premises in fulfillment of the contract must comply with our safety regulations.
  2. A notice of exemption from construction withholding tax must be submitted for construction services.

J.    Confidentiality, documents

  1. The supplier is obliged to keep confidential for an unlimited period of time all information that becomes accessible to him through us and that is designated as confidential or is recognizable as business or trade secrets according to other circumstances, and to neither record nor pass it on or exploit it, unless this is necessary for the delivery to us. The Supplier shall ensure through suitable contractual agreements with the employees and agents working for it that they also refrain from any exploitation, disclosure or unauthorized recording of such business and trade secrets, at least for the duration of the business relationship.
  2. Upon request, all samples and/or documents provided by us shall be returned and/or permanently deleted, unless they are required for the fulfillment of the contract by the Supplier.

K.   Place of performance and jurisdiction

  1. The place of performance for all services provided by the supplier and by us is our registered office.
  2. The exclusive place of jurisdiction for all business relationships with merchants and legal entities under public law is our registered office. We are also entitled to bring an action at the supplier’s registered office and at any other permissible place of jurisdiction.

L.    Sustainability policy for suppliers

When concluding and executing contracts with us, the supplier must observe the “Sustainability Policy for Suppliers” in its current version, which is available at [Nachhaltigkeitspolitik für Lieferanten] which we enclose with our order or which we make available to the supplier on request. In addition, the supplier shall ensure that the business principles listed in the “Sustainability Policy for Suppliers” are also complied with in its supply chain (in accordance with Section 2 (5) LkSG).

M.    Final provisions

  1. The law of the Federal Republic of Germany shall apply exclusively to all legal relationships between the supplier and us. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
  2. The supplier may only have an order or essential parts of an order executed by third parties with our prior written consent.
  3. The transfer of rights and obligations of the supplier to third parties is only possible with our prior written consent.

 

Zeller+Gmelin GmbH & Co KG

Status: June 2023