General Conditions of Purchasing and Ordering
SOREL GmbH Mikroelektronik
§ 1 Geltungsbereich
§ 1 Scope
1. The following conditions of purchasing apply for the entire business dealings with our suppliers or other contractors (in the following commonly referred to as “Supplier”), even if they are not mentioned in later instances or contracts. The inclusion of general conditions of sales or other general terms and conditions of the Supplier is explicitly objected herewith. This also holds if the Supplier refers to own terms and conditions, even if they include (counter-) protective and/or exclusivity clauses and we do not explicitly object to them, regardless the chronological order in which the competing conditions were referred to by the contracting parties, unless they were confirmed in writing. Neither can the validity of other conditions be inferred from the receipt of the goods or service.
2. Our conditions of purchasing also apply for all future transactions with the Supplier without explicit reference, unless we agree to a different validity in writing.
§ 2 Conclusion of Contract
1. An order is only valid if issued in writing and signed by us. Any orally issued orders by us are only binding when confirmed by transmitting a written order subsequently.
2. The Supplier is obliged to accept the offer included in our order within a period of two weeks. By accepting the order, the Supplier confirms to be informed about the type of product and the scope of the performance by studying the available documents. In case of apparent mistakes, typing or computing errors in the documents issued by us, we are not bound to them. The Supplier is obliged to notify us of such mistakes, such that our order can be revised. This also applies for missing documents. Acceptance of the order must be confirmed in writing within two weeks as of the date of order. Otherwise, we are entitled to revocation.
3. Deviations in quantity or quality from the text and content of our order as well as later contract changes only come into force if confirmed by us in writing.
4. The order number and supplier number quoted in our order must be referred to on the invoice and any other written correspondence.
§ 3 Date of Delivery
1. The agreed dates of delivery are binding. The delivery period shall commence on the date of order. The delivery must have been received at the destination point specified by us within the period of delivery. Prospective delays of delivery must be communicated to us immediately in writing, indicating the reasons.
2. In case of agreed dates of delivery, the Supplier is not entitled to deliver ahead of schedule, if legitimate operational concerns (e.g. lack of storage capacity) oppose to them. In this case, a refusal from our side to receive the delivery does not initialize a default of acceptance. A delivery ahead of schedule does not imply an earlier payment date.
3. If call-off deliveries from a blanket order are agreed, the call-offs become binding if the Supplier does not contradict immediately.
4. If the Supplier is behind schedule, we are entitled to lawful claims. After an ineffective lapse of appropriate time, we are also entitled to a contractual penalty of 0,8% of the net order value for every week started, but at most 5% of the net order value, and/or ask immediate delivery and/or refrain from the contract. Any effected contractual payment shall be deducted from possible damage claims. Sec. 343 BGB remains reserved. The acceptance of delayed deliveries or services does not imply a waiver from possible damage claims.
§ 4 Disengagement
Force majeure or operational disturbances, strikes, lock-outs which considerably impair operations in our company, release us from our purchase commitment.
§ 5 Shipment, Packaging
1. Every shipment of goods must be accompanied by a delivery note. Our order data must be repeated on all shipment documents. Any costs incurred as a result of non-compliance to these obligations shall be covered by the Supplier.
2. Shipping costs are fully incurred by the Supplier to the destination specified by us. In case of a written agreement stating that we exceptionally assume the shipping costs, the Supplier is obliged to pick the transportation mode and carrier as specified by us or otherwise the transportation mode and carrier most advantageous to us.
3. The risk will only pass to us upon receipt of the delivery at our point of destination.
4. Packaging is included in the price. In case of a written agreement stating otherwise, packaging must be charged at cost price.
§ 6 Prices, Terms of Payment
1. Unless otherwise agreed in writing, the prices for delivery and services are net prices plus statutory turnover tax and including packaging, shipping and insurance. Agreed prices are fixed prices, unless the Supplier decreases his prices. Other specifications require our previous written approval.
2. The supplier will not set us prices and terms less favorable than those for other buyers, if and in so far as in specific cases these other buyers are offering the same or equivalent conditions.
3. Payments shall be effected only upon full receipt of the faultless goods and/or entirely faultless performance and after receipt of a duly issued invoice. If partial shipments were agreed in writing, this regulation applies accordingly.
4. Unless otherwise agreed in writing, payment takes place within thirty days with three percent cash discount or within ninety days net. Delays which arise from incorrect or incomplete invoices do not affect cash discount periods. As far as we are entitled to a cash discount, the calculation of the cash discount period is based on the last chronological event in case of a separate receipt of the delivery and the invoice.
5. Payments made to the Supplier generally do not imply approval of the delivery in terms of the contract specifications.
6. Any accounts receivable from us to the Supplier may only be conveyed to third parties with our written consent. We shall be entitled to the full range of offsetting and retention rights stipulated by law.
7. As far as insurance is incurred by us, insurance costs of the Supplier must not be part of the purchasing price.
§ 7 Warranty and Liability
1. We are entitled to assert any claim given by law. In case of mutual commercial transactions, Sec 377 HGB applies with the following particularities:
The goods are only considered delivered as soon as we had the possibility to inspect them in the ordinary course of business. In case of doubt this shall be the point in time when the goods arrive on our premises during our customary opening hours. Handing the goods over to the carrier is not sufficient. Complaints will have been carried out in due time to the extent that it arrives at the Supplier within a period of two weeks after receipt of goods or the first opportunity for inspection. In case of hidden defects the date of discovery shall count.
The goods will not be regarded as accepted if the Supplier was not aware of the quality deviations as a result of own or imputable negligence, but if he could have assumed our rejection under proper operations.
Defects which could not be identified as such within a mere visual and identity inspection are classified as hidden defects.
2. If defective goods are delivered, the Supplier will be given the opportunity to correct the deficiencies or to replace the goods according to our choice. If the Supplier cannot carry out corrections or replacement delivery or if he does not do so after request and appointment of a time limit, we are entitled to return the goods at the Supplier’s risk and cost and to obtain replacement goods elsewhere without prejudice to any other rights or remedies.
3. With regard to commission orders, the Supplier must take the utmost care and strictly follow our instructions. In cases of doubt, it is mandatory to consult us. By accepting a commission order, the Supplier confirms his ability to fulfill our specifications.
4. Sample Suppliers are obliged to deliver in line with drawings and dimensions.
5. The right to claim damages, in particular for damage compensation instead of performance, remains explicitly reserved.
6. Our warranty and damage compensation rights lapse within three years after passing of risk. As far as the Supplier delivers new items or parts of an item in the context of the warranty for defects, the statute of limitation of the new or corrected item begins from new, starting from moment of handover of the new item or part. The reset of the statute of limitation does not occur if the defect was minor or if the Supplier explicitly stated before the replacement delivery that he is not obliged to the replacement delivery and the replacement was delivered only out of goodwill or as an amicable settlement of a dispute.
§ 8 Production Resources
1. Drawings, samples and models which we make available to the Supplier remain our property and must be handed back upon termination of the order unrequested. Processing or modifications by the Supplier are done for us.
2. Drawings must not be duplicated. It is prohibited for the Supplier to make our production resources available to third parties. The non-disclosure obligation remains valid even after termination of this contract. It expires, if and as far as the models, drawings, calculations and other documents that we made available to the Supplier become commonly known.
3. The Supplier is prohibited from contacting our customer without our consent.
4. For the rest item 9.3 is valid accordingly.
§ 9 Manufacturer’s Liability, Property Rights, Non-Disclosure
1. The Supplier is obliged to release us from any complaints according to German and foreign law, as far as he is liable for the underlying defect in line with the regulations for manufacturer’s liability. If, based on no-fault liability vis-à-vis third parties, claims are made against us, the Supplier shall intercede on our behalf to the same extent as if it were directly liable to the third party.
2. The Supplier is liable for ensuring that no patents or other property rights of third parties are violated through the delivery of the Supplier and its utilization by us. The Supplier shall be free to prove that he is not responsible for violation of the rights of third parties. As far as we are concerned with liability claims from third parties, he releases us and our Purchasers from all claims arising from the use of such property rights and from any expenses which we necessarily incur through or in connection with the claims asserted by a third party. We are not entitled to close any agreements, especially out-of-court settlements, without consent of the Supplier. The Supplier is not liable to us, as far as he produced the goods according to the drawings, models or equivalent descriptions or instructions that we made available to him in this context, unless he is aware of the violation of rights caused by its use.
3. All technical data and other commercial and technical information that is not in the public domain and that the Supplier gets to know through the business relationship with us must be kept strictly confidential. They may only be used for the execution of our orders and may only be made available to those employees of the Supplier whose deployment in the order execution is rendered necessary by the Seller’s operational circumstances. Possible sub-contractors must be obliged accordingly.
§ 10 Limitation of Liability
1. We are only liable in the following cases:
a) In cases of intent or gross negligence by our executive bodies and managing employees;
b) In cases of negligent breach of major contractual obligations by our executive bodies, managing employees and other auxiliary persons.
2. The disclaimer of warranty and liability limitation included in item 10.1 do not apply for cases with damage of life, body or health. In all cases of non-negligent damage causes, we are liable only with the amount of foreseeable and typical damage with the exceptions stated in the previous sentence.
§ 11 Product Liability
1. If claims are made against us because of violation of official safety precautions or because of domestic or foreign product liability regulations or laws because of the defectiveness of our product that was caused by a commodity of the Supplier, we shall be entitled to demand compensation from the Supplier to the extent that the damage was caused by the products supplied by him. This damage also includes the costs incurred by a precautionary recall campaign.
2. Furthermore, the Supplier shall insure itself appropriately and commensurately against all risks arising from product liability, including appropriate cover for the risk of recall, and shall present his insurance policy to us on request for inspection.
§ 12 Other
1. Any reference to commercial terms (such as EXW, FCA etc) shall be regarded as a reference to the corresponding Incoterms conditions in force at the relevant time.
2. Legal relations existing between the Supplier and us shall be governed by German substantive law, even if the Supplier’s head office is located abroad, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
3. If the purchaser is a businessman, sole venue for all disputes arising directly or indirectly out of the contract shall be our place of business. However, we may also bring an action at the Supplier’s place of business.
General Conditions of Delivery
of SOREL GmbH Mikroelektronik
than 20%, the Supplier shall release a corresponding part of the security interest if so requested by the Purchaser.
For the duration of the retention of title, the Purchaser may not pledge the Retained Goods or use them as security, and resale shall be possible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment from its purchaser or makes the transfer of property to the purchaser dependent upon the customer fulfilling its obligation to effect payment.
However, the Purchaser now cedes all claims accruing from the resale to the Supplier. After their assignment, the Purchaser is authorised to collect these claims in trust. The authority of the Purchaser to collect this claim by himself remains unaffected by this; however he is obliged not to collect the claim as long as the Purchaser duly fulfils his obligation to pay.
As far as the Purchaser is authorized to a collection in trust of the claim within the scope of the regular course of business or remains it with approval, the collection shall take place to a bank account separate from the other business accounts, which is kept in trust for the Supplier. The Purchaser shall take all required and reasonable measures so that the payment of the third party does not take place on a different account. The Purchaser is obliged to transfer received amounts from the ceded claims to the Supplier. On request, the Purchaser shall prove the establishment of an account in trust for the borrowed capital being collected by him.
The authority of the Purchaser to the collection expires if the Supplier cancels them in writing, the Purchaser does not fulfil his payment obligations arising from the received revenues or if an application for opening insolvency proceedings over the assets of the Purchaser is filed or if he ceases his payments. In these cases the Supplier is authorised to collect the assigned book account by himself. The Purchaser shall release all information that is required for the collection and to deliver the corresponding documents. In this case the Purchaser is further on obliged to communicate this assignment to the borrowers. If the Purchaser does not immediately cede received amounts from assigned book accounts to the Supplier, he shall in trust and free of charge keep them for the Supplier.
Processing or modification of the goods by the Purchaser shall always be done for the Supplier, without any obligation arising for him. If the delivery items are processed with other items not belonging to the Supplier, then he acquires co-ownership of the new item in proportion of the value of the delivery items to the other processed items at the time of processing.
If the delivery items are inextricably combined with other items not belonging to the Supplier, then he acquires co-ownership of the new item in proportion of the value of the delivery items to the other processed items. The Purchaser shall keep the co-ownership free of charge for the Supplier.
The Purchaser shall inform the Supplier forthwith of any seizure or other act of intervention by third parties.
Where the Purchaser fails to fulfil its duties, including failure to make payments due, the Supplier shall be entitled to cancel the contract and take back the Retained Goods in the case of continued failure following expiry of a reasonable time set by the Supplier; the statutory provisions that a time limit is not needed remain unaffected. The Purchaser shall be obliged to surrender the Retained Goods.
IV. Time for Delivery and Delay
Times set for Supplies can only be observed if all Documents to be supplied by the Purchaser, necessary permits, releases, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Purchaser are fulfilled. Unless these conditions are fulfilled in time, times set shall be extended appropriately; this shall not apply where the Supplier is responsible for the delay.
If non-observance of the times set is due to force majeure such as mobilization, war, rebellion or similar events, e.g. strike or lockout, such time shall be extended accordingly.
If the Supplier is responsible for the delay (hereinafter referred to as “Delay”) and the Purchaser demonstrably suffered a loss therefrom, the Purchaser may claim a compensation as liquidated damages of 0.5% for every completed week of Delay, but in no case more than a total of 5% of the price of that part of the supplies which because of the Delay could not be put to the intended use.
Purchaser’s claims for damages due to delayed Supplies as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above shall be excluded in all cases of delayed Supplies even upon expiry of a time set to the Supplier to effect the Supplies. This shall not apply in cases of mandatory liability based on intent, gross negligence, or due to injury of life, body or health or if it is a matter of infringement of obligations essential to the contract. Cancellation of the contract by the Purchaser based on statute shall be limited to cases where the Supplier is responsible for the delay. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
At the Supplier’s request the Purchaser shall declare within a reasonable period of time whether the Purchaser cancels the contract due to the delayed Supplies or insists on the Supplies to be carried out.
If dispatch or shipment is delayed at the Purchaser’s request by more than one month after notice of the readiness for dispatch was given, the Purchaser may be charged, for every month commenced, storage costs of 0.5% of the price of the items of Supplies, but in no case more than a total of 5%. The parties to the contract may prove that higher or, as the case may be, lower storage costs have been incurred.
V. Transfer of Risk
Even where delivery has been agreed freight free, the risk shall pass to the purchaser as follows:
if the supplies do not include assembly or erection, at the time when the supplies are shipped or picked up by the carrier. All supplies will be insured against the usual risks of transport at the expense of the purchaser. If the purchaser organises the collection all risks are transferred to him at the moment of pick up.
if the supplies include assembly or erection, at the day of taking over in the own works or, if so agreed, after a fault-free trial run.
The risk shall pass to the purchaser if dispatch, shipping, the start or performance of assembly or erection, the taking over in the own works or the trial run is delayed for reasons for which the purchaser is responsible or if the purchaser has otherwise failed to accept the supplies.
VI. Erection and Assembly
Unless otherwise agreed in writing, assembly/erection shall be subject to the following provisions:
Before the erection work starts, the Purchaser shall make available of its own accord any information required concerning the installation.
Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the site of assembly/erection and any preparatory work must have advanced to such a degree that assembly/erection can be started as agreed and carried out without interruption.
If assembly, erection or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for idle times and any additional travelling of the Supplier or the erection personnel.
If, after completion, the Supplier demands acceptance of the Supplies, the Purchaser shall comply therewith within a period of two weeks. In default thereof, acceptance is deemed to have taken place. Acceptance is deemed to have been effected if the Supplies are put to use, after completion of an agreed test phase, if any.
VII. Receiving of Supplies
The Purchaser shall not refuse to receive Supplies due to minor defects.
VIII. Defects as to Quality