Terms and Conditions of Purchase

Terms and Conditions of Purchase for GUTEX Holzfaserplattenwerk H. Henselmann GmbH & Co. KG

These Terms and Conditions of Purchase apply only to those suppliers who are entrepreneurs pursuant to Section 14 of the German Civil Code (BGB), i.e. a natural or legal person, or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession, a legal person under public law, or a special fund under public law.

 

1. Scope; exclusive validity

We place all orders exclusively on the basis of the terms and conditions set out below. Any deviating terms and conditions must be expressly stated in writing in the order.

We are not bound by any supplier terms and conditions that deviate, in whole or in part, from our Terms and Conditions of Purchase, even where we do not object to them or the supplier states that third-party terms and conditions only apply if confirmed by themselves. 

 

2. Quotes

Supplier quotes are free of charge and non-binding for us, even if they are issued upon our request. The supplier must adhere exactly to our enquiry in the quote with regard to quantity and quality, and must make explicit reference to any deviations.

 

3. Order placement

For evidentiary purposes, verbal and telephone orders and agreements require our written confirmation.

If, on occasion, the written form is not adhered to, the order or the agreement are still effective. We are, however, entitled to demand written confirmation after the fact.
The supplier shall undertake to strictly observe our instructions relating to order processing. All costs arising from non-compliance with these instructions shall be borne by the supplier. 

 

4. Documents, drawings, samples, and models

All drawings, documents, samples, and models that we make available to the supplier in whatever form shall remain our property and must be returned to us. They may neither be further utilised nor made accessible to third parties. Upon request, the supplier shall provide us, for the purpose of inspection and approval, with a single copy of the plans, design drawings, calculations, etc. required for the execution of the order. We shall not make these documents available to third parties without the supplier’s consent.

 

5. Inspection

We reserve the right to inspect the items for delivery at the supplier’s factory at any time prior to acceptance. Such inspections shall not release the supplier from its liability, nor shall they substitute for acceptance.

Our inspector may reasonably satisfy themselves that the supplier is using the correct materials. They may conduct the inspections, etc., during business and operating hours in all or part of the supplier’s factory at any stage of production. We may require the supplier to make changes if production does not conform to the order. If required by us, the supplier shall mark all goods or materials ordered in accordance with our instructions.

The supplier shall notify us without delay of all product and process changes from the product specification approved by us. Approval of the product modified in this way shall require our written consent.

 

6. Duty to inspect and provide notice of defects

Within the scope of the duty to examine and give notice of defects pursuant to Section 377 of the German Commercial Code (HGB), we are not obliged to inspect closed packages. The supplier, however, may provide us with additional goods free of charge for random inspection and examination by us pursuant to Section 377 HGB.

 

7. Shipping and packaging

Up to the point at which the goods have been duly accepted at our factory, shipping and packaging shall be at the supplier’s expense and risk. Upon request, the supplier shall provide us with proof of dispatch of the goods. Our shipping instructions must be strictly adhered to.

 

8. Delivery

The drivers of all vehicles must comply with our company rules. The supplier shall be liable for all damage caused by their own or contracted drivers.

If the supplier or their employees or contractors should suffer damage on our premises, our liability shall be limited to the foreseeable damage typical for the contract in the event of a merely negligent breach of duty by us. This shall not apply in the event of a breach of a material contractual obligation and in the event of injury to life, limb, or health. The exclusion of liability shall also not apply in cases in which liability is assumed under the Product Liability Act for personal injury and property damage to privately used objects. The supplier shall indemnify us against claims by third parties.

Any damage that occurs in our factory must be reported to the factory manager at the latest when leaving the factory, in urgent cases immediately.

 

9. Delivery time

The delivery time begins on the day of our written order placement. The supplier is obliged to notify us immediately if they become aware that the agreed delivery time cannot be adhered to. Deliveries that arrive before the agreed delivery time without our written consent may be returned or stored at the supplier’s expense and risk.

 

10. Product liability, indemnification, liability insurance coverage

Insofar as the supplier is responsible for product damage, they shall be obliged to indemnify us against claims for damages by third parties upon first request, insofar as the cause lies within their sphere of control and organisation and they themselves are liable in relation to third parties.

Within the scope of their liability for cases of damage pursuant to subsection (1), the supplier shall also be obliged to reimburse any expenses pursuant to Sections 683, 670 BGB or pursuant to Sections 830, 840, 426 BGB arising from or in connection with a recall campaign carried out by us. We shall inform the supplier of the content and scope of the recall actions to be carried out – insofar as this is possible and reasonable – and give them the opportunity to comment. Other legal claims shall remain unaffected.

The supplier undertakes to maintain a product liability insurance policy with lump sum coverage of €10 million for personal injury/property damage. Further and/or other claims for damages remain unaffected.

 

11. Intellectual property rights

The supplier warrants that no rights of third parties are infringed in connection with their delivery.

If claims are asserted against us by a third party, the supplier shall be obliged to indemnify us against such claims upon first written request; we shall not be entitled to make any agreements with the third party – without the supplier’s consent – or, in particular, to enter into a settlement.

The supplier’s obligation to indemnify shall apply to all expenses that necessarily arise from or in connection with the claim by a third party.

The limitation period is ten years, calculated from the time of conclusion of contract.

 

12. Retention of title, provision of tools, confidentiality

Insofar as we order parts from the supplier, we shall retain title to them. The supplier shall process or modify parts for us. If our goods subject to retention of title are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of our item to the other processed items at the time of processing.

If the item provided by us is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of our item (purchase price plus VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the supplier’s item is to be regarded as the main item, it shall be deemed agreed that the supplier transfers co-ownership to us on a pro rata basis; the supplier shall maintain sole ownership or co-ownership for us.

We retain title to tools; the supplier is obliged to use the tools exclusively for the manufacture of the goods ordered by us. The supplier is obliged to insure the tools belonging to us at replacement value against fire, water, and theft damage at their own expense. At the same time, the supplier hereby assigns to us all claims for compensation arising from this insurance; we hereby accept the assignment. The supplier is obliged to carry out any necessary maintenance and inspection work on our tools, as well as all maintenance and repair work, in good time and at their own expense. They shall notify us immediately of any malfunctions; if they culpably fail to do so, claims for damages shall remain unaffected.

The supplier is obliged to keep all figures, drawings, calculations, and other documents and information received strictly confidential. They may only be disclosed to third parties with our express consent. The obligation to maintain confidentiality shall also apply after execution of this contract; it shall expire if and to the extent that the manufacturing knowledge contained in the figures, drawings, calculations, and other documents provided has become generally known.

Insofar as the security rights to which we are entitled pursuant to paragraphs (1) and/or (2) exceed the purchase price of all our reserved goods not yet paid for by more than 10%, we shall be obliged to release the security rights at our discretion at the request of the suppliers.

 

13. Invoicing and payment

Invoices shall be issued stating the order number provided by us. The date of receipt of the invoice by us, not the date stated on the invoice, shall determine the payment deadline and discount.
Invoices lacking information necessary for verification shall be deemed not to have been received. We may return such invoices for completion.
We shall make payment in accordance with the payment deadline stated in the order on receipt of the invoice, but at the earliest after the date of receipt of the delivery by us. All invoices must comply with the provisions of the Value Added Tax Act as well as all related directives, implementing regulations, etc. If this is not the case, an invoice shall be deemed not to have been received. We shall inform the supplier of this within two weeks of receipt of the invoice.

 

14. Prohibition of assignment

Claims may only be assigned to third parties with our written consent.

 

15. Place of performance, place of jurisdiction

The law of the Federal Republic of Germany shall apply. The place of performance for deliveries and our payments is Waldshut-Tiengen. The place of jurisdiction for all legal disputes arising from this contract shall be Waldshut-Tiengen, provided that the supplier is a merchant, a legal person under public law, or a special fund under public law. The agreement on the place of jurisdiction shall also apply if the supplier has no general place of jurisdiction in Germany.


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