(1) All purchase orders placed by Putsch® GmbH & Co. KG (hereinafter the “Buyer”) are governed exclusively by these provisions (“Purchasing Terms and Conditions”). These Purchasing Terms and Conditions apply to all legal transactions with the Buyer’s contractors, business partners and suppliers (hereinafter the “Seller”) concerning the sale and/or delivery of movable goods (hereinafter the “Goods”), irrespective of whether the Seller manufactures the Goods itself or procures them from sub-suppliers (§§ 433, 651 BGB), unless otherwise stipulated in these Purchasing Terms and Conditions.
(2) Unless expressly agreed otherwise, these Purchasing Terms and Conditions shall also apply to all future contracts of the same nature for the sale and/or delivery of Goods by the Seller, without the Buyer having to refer to them in each individual case. The Buyer will inform the Seller of any changes to the Purchasing Terms and Conditions.
(3) Acceptance and performance of the purchase order shall be deemed unconditional acknowledgement of these Purchasing Terms and Conditions by the Seller.
(4) These Purchasing Terms and Conditions apply exclusively. Deviating or conflicting terms and conditions of the Seller or of third parties shall not apply, even if the Buyer does not expressly object to their validity in an individual case. Any reference by the Buyer to correspondence that contains or refers to the Seller’s or a third party’s terms and conditions shall not constitute consent to their applicability.
(5) These Purchasing Terms and Conditions apply exclusively to Sellers that are entrepreneurs within the meaning of § 14 BGB, or legal entities under public law or special funds under public law (§ 310 BGB).
(6) Any references herein to statutory provisions are for clarification purposes only. Statutory provisions therefore apply even without such clarification, unless they are directly amended or expressly excluded in these Purchasing Terms and Conditions.
(1) All quotations issued by the Seller are free of charge for the Buyer and non-binding.
(2) Orders, agreements and other declarations of the Buyer are binding only if made in writing. Deliveries that are not based on a written purchase order from the Buyer will not be recognised. The Seller shall inform the Buyer of any obvious errors (e.g. typing or calculation mistakes) or incompleteness in the order, including the accompanying documents, for the purpose of correction or completion.
(3) Silence on the part of the Buyer regarding quotations from the Seller, especially those submitted electronically, shall not constitute acceptance. Oral agreements and modifications of the delivery item require written confirmation.
(4) The Seller must confirm acceptance of the order to the Buyer in writing within four (4) working days of receipt. The Buyer’s order shall be deemed accepted unless the Seller expressly objects in writing within this period.
(5) If, after conclusion of the contract, it becomes apparent that the Seller’s financial circumstances have deteriorated or are likely to deteriorate materially and thereby endanger fulfilment of its obligations toward the Buyer, the Buyer is entitled to refuse performance and/or withdraw from the contract. The Buyer is also entitled to withdraw if the Seller ceases payments, or if insolvency proceedings (§§ 14, 15 InsO) or a comparable statutory procedure are applied for by the Seller, the Buyer or another creditor, or if such proceedings are opened or their opening is rejected for lack of assets.
(6) The Seller may not have the performance it owes rendered by third parties (e.g. subcontractors) without the prior written consent of the Buyer. The Seller bears the procurement risk for its performance unless otherwise agreed in an individual case (e.g. sale of goods in stock).
(7) Persons engaged in fulfilling the Seller’s obligations on the Buyer’s premises or at any other agreed location are subject to the Buyer’s site regulations and to the Buyer’s instructions regarding applicable accident-prevention, occupational-safety, environmental and other regulations. The Seller may request an information sheet on these provisions from the Buyer.
(1) Unless otherwise agreed, the Goods ordered shall be delivered in a commercial quality that reflects the current state of the art and complies with statutory requirements such as DIN standards.
(2) Where the Goods are to be manufactured or produced by the Seller, the Buyer may, within reasonable limits, request changes to the design and execution of the Goods. The effects of such changes, in particular with regard to the costs of the modification and any necessary adjustment of delivery dates, shall be settled by mutual agreement in an appropriate manner.
(3) If the Goods fall within the scope of EU directives governing machinery and electrical equipment, in particular the Machinery Directive (2006/42/EG), the Low Voltage Directive (2014/35/EU) or the Electromagnetic Compatibility Directive (2014/30/EU) and the respective national laws implementing these directives, the Seller undertakes to enclose the corresponding declaration of conformity or manufacturer’s declaration and all required standards and information.
(4) The Seller shall deliver the Goods free of third-party rights arising from intellectual property. The Seller shall fully indemnify the Buyer on first demand against all claims, including the costs of legal defence or prosecution, that third parties assert against the Buyer on account of any infringement of such rights.
(5) If the Seller supplies the Goods in several parts (individual components, partially assembled, etc.), it shall clearly identify the individual parts as belonging together. The type of identification shall be coordinated with the contact person named in the purchase order.
(6) The Seller is not entitled to make partial deliveries unless the Buyer has given its express consent.
(1) The delivery date or delivery period (“Delivery Time”) stated in the purchase order is binding. Early deliveries are not permitted.
(2) If it becomes apparent to the Seller that the Delivery Time cannot be met, the Seller must inform the Buyer immediately in writing, specifying a new Delivery Time. The Buyer’s rights arising from delay in delivery remain unaffected.
(3) If the Seller fails to perform its obligations at all or within the Delivery Time, or if it is in default, the Buyer’s rights—especially those to withdraw from the contract and claim damages—shall be governed by statutory provisions.
(4) Where a calendar week is specified as the delivery date, the Goods must arrive at the named destination no later than the last working day of that week.
(5) If delivery “free destination” has not been agreed, the Seller shall make the Goods available in good time, taking into account the Incoterms stated in the purchase order and the customary time required for loading and shipment, and shall inform the Buyer accordingly.
(6) Serious events—particularly force majeure, labour disputes, civil unrest, war or terrorist conflicts—that have unforeseeable consequences for the performance of obligations shall release the parties from their performance duties for the duration and scope of the disruption, even if they are already in default. This does not automatically terminate the contract. The parties are obliged to notify each other of such impediments and to adjust their obligations to the changed circumstances in good faith.
(1) Unless expressly agreed otherwise, delivery within Germany shall be carriage paid to the location specified in the purchase order. If no destination is stated and nothing else is agreed, delivery shall be made to the Buyer’s registered office. The respective place of destination is also the place of performance for the delivery and any subsequent performance (obligation to bring).
(2) All order confirmations, shipping documents and invoices must state the Buyer’s order number and article number, the name of the contact person indicated in the purchase order, the description of the Goods, the Seller’s article number, payment terms, quantity supplied and delivery address.
(3) The delivery must be accompanied by two copies of a delivery note indicating the date (issue and dispatch), the contents of the delivery (article number and quantity) and the Buyer’s order reference (date and number). If the delivery note or other required shipping documents are missing or incomplete, the Buyer shall not be liable for any resulting delays in processing or payment. The Seller shall send the Buyer, separately from the delivery note, a dispatch notice containing the same information.
(4) The risk of accidental loss or accidental deterioration of the Goods passes to the Buyer upon handover. Where acceptance has been agreed, such acceptance shall be decisive for the transfer of risk. In all other respects, the statutory provisions governing contracts for work and services apply mutatis mutandis to acceptance. Handover or acceptance shall be deemed to have taken place if the Buyer is in default of acceptance.
(5) The statutory provisions determine when the Buyer is in default of acceptance. Nevertheless, the Seller must expressly tender its performance to the Buyer even where a specific or determinable calendar period has been agreed for an act or cooperation by the Buyer (e.g. supply of materials). If the Buyer is in default of acceptance, the Seller may claim reimbursement of its additional expenses pursuant to § 304 BGB. If the contract concerns a non-fungible item to be manufactured by the Seller (custom-made product), the Seller shall have further rights only if the Buyer has undertaken to cooperate and is responsible for the failure to do so.
(1) The prices stated in the purchase order are fixed prices. All prices include statutory value-added tax unless it is shown separately.
(2) Unless otherwise agreed in an individual case, the price covers all services and ancillary services of the Seller (e.g. installation, assembly) as well as all incidental costs (e.g. proper packaging, transport costs including any transport and liability insurance). At the Buyer’s request the Seller shall take back the packaging material.
(3) Unless agreed otherwise, the remuneration for the Goods falls due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If the Buyer makes payment within 14 calendar days, the Seller shall grant a 3 % discount on the net invoice amount.
(4) In the case of an unsolicited early delivery, the due date for payment is determined by the originally agreed delivery date.
(5) After delivery the Seller shall send the invoice to the Buyer separately and in duplicate.
(6) The Buyer does not owe default interest within the meaning of § 353 HGB. The statutory provisions govern when the Buyer is in default, but in every case a written reminder from the Seller is required.
(7) The Buyer is entitled to rights of set-off, retention and the defence of non-performance to the statutory extent. In particular, the Buyer may withhold due payments as long as it still has claims against the Seller arising from incomplete or defective performance.
(8) The Seller may exercise rights of set-off or retention only in respect of counter-claims that are undisputed or have been finally determined by a court.
(9) The Seller may not assign its claims against the Buyer or have them collected by third parties without the Buyer’s consent, which shall not be unreasonably withheld.
(1) The Buyer retains ownership and copyrights to all illustrations, plans, drawings, descriptions, calculations, execution instructions, product specifications and other documents as well as to all knowledge obtained from the business relationship. Such documents and knowledge may be used solely for performance of the contract. All documents must be returned to the Buyer once the contract has been fulfilled.
(2) The Seller shall use all documents and knowledge obtained from the business relationship with the Buyer exclusively for the jointly pursued purposes and shall treat them with the same care as its own comparable documents and information, keeping them confidential vis-à-vis third parties. This duty of confidentiality continues after termination of the contract and ends only when and to the extent that the information contained in the supplied documents or knowledge has become public domain.
(3) The foregoing provision applies accordingly to all production aids or auxiliary means provided by the Buyer, such as materials and substances (e.g. software, finished and semi-finished products), tools, molds, templates, parts, bills of materials, drawings, samples and other items supplied for manufacture. While not yet processed, such items shall be stored separately at the Seller’s expense and insured to a reasonable extent against destruction and loss. The Seller is responsible for proper storage and bears the risk of negligent damage or destruction.
(4) Any processing, mixing or combining (further processing) of items supplied by the Buyer is carried out on the Buyer’s behalf. The same applies if the Buyer further processes the Goods delivered by the Seller: the Buyer is deemed the manufacturer and acquires ownership of the product at the latest upon further processing in accordance with statutory provisions.
(5) Title to the Goods shall pass to the Buyer unconditionally and irrespective of payment of the price. If, in an individual case, the Buyer accepts the Seller’s offer to transfer title conditioned on payment of the purchase price, the Seller’s retention of title expires at the latest upon payment. In the ordinary course of business the Buyer remains authorised to resell the Goods even before payment, with advance assignment of the resulting claims (supplementary application of a simple retention of title extended to resale). All other forms of retention of title—in particular the expanded, the forwarded and the extended retention of title covering further processing—are excluded.
(1) If acceptance of the Goods has been agreed, the following provisions shall apply:
(2) The Seller shall notify the Buyer in writing at least 10 calendar days in advance, providing all necessary details, that the Goods are ready for acceptance.
(3) The Seller agrees that, at the Buyer’s request and by prior arrangement, the Buyer may send a representative to the Seller’s plant to inspect the Goods during and/or after production together with the Seller.
(4) The Seller shall provide, free of charge, all means required for inspection and testing, in particular electricity, water, tools, laboratory facilities and test pieces.
(5) A written acceptance report shall be prepared and signed by both parties.
(6) The Buyer shall inform the Seller without delay and in writing if, during the acceptance test, it becomes aware of deviations from the contractually agreed requirements for the Goods.
(7) If the performance is not in conformity with the contract and the Buyer therefore rightfully refuses acceptance, or if acceptance is granted subject to the elimination of defects to be specified in the report, the Seller is obliged to provide conforming performance without delay, remedy the defects, inform the Buyer of the expected duration of the rectification work, and, after completing the rework, notify the Buyer that the defects have been remedied and make the Goods available again for acceptance. If acceptance fails a second time, the Buyer is entitled to withdraw from the contract.
(8) After successful acceptance, a representative of the Buyer will issue an acceptance certificate to the Seller. This releases the Goods for shipment.
(1) The statutory provisions apply to the Buyer’s rights in the event of material and legal defects in the Goods (including incorrect or short delivery, improper assembly, or defective installation, operating or user instructions) and for any other breaches of duty by the Seller, unless otherwise stipulated below.
(2) In accordance with statutory provisions, the Seller warrants in particular that, at the time risk passes to the Buyer, the Goods possess the agreed quality and are suitable for the use assumed under the contract. Any product descriptions that—especially by designation or reference in the Buyer’s purchase order—form part of the respective contract, or are incorporated into the contract in the same way as these Purchasing Terms and Conditions, shall in any event be deemed an agreement on quality, irrespective of whether the product description originates from the Buyer, the Seller, or the manufacturer.
(3) Contrary to § 442 Abs. 1 S. 2 BGB, the Buyer’s defect claims remain unrestricted even if the defect remained unknown to the Buyer at the time the contract was concluded due to gross negligence.
(4) The statutory provisions on the commercial duty to inspect and give notice of defects (§§ 377, 381 HGB) apply with the following proviso: the Buyer’s duty to inspect is limited to defects that become apparent during the Buyer’s incoming-goods inspection through external examination—including of the delivery documents—and during its quality control by means of sampling (e.g. transport damage, incorrect or short delivery). Where acceptance has been agreed, there is no duty to inspect. Otherwise, the extent of inspection depends on what is feasible in the ordinary course of business, taking into account the circumstances of the individual case.
(5) The Buyer’s obligation to give notice of defects discovered later remains unaffected. In all cases, a notice of defect is deemed immediate and timely if it is received by the Seller within ten (10) calendar days.
(6) The Seller shall bear the costs it incurs for the purpose of inspection and subsequent performance (including any removal and re-installation costs) even if it turns out that no defect actually existed. The Buyer’s liability for damages in the event of an unjustified demand to remedy defects remains unaffected; in this respect the Buyer is liable only if it recognised, or through gross negligence failed to recognise, that no defect existed.
(7) If the Seller fails to fulfil its obligation of subsequent performance—at the Buyer’s option by remedying the defect or by delivering a defect-free item—within a reasonable period set by the Buyer, the Buyer may remedy the defect itself and demand reimbursement from the Seller for the necessary expenses or an appropriate advance payment. No deadline is required if subsequent performance by the Seller has failed or is unreasonable for the Buyer (e.g. owing to special urgency, risk to operational safety or impending disproportionate damage); the Buyer will inform the Seller of such circumstances without delay, and where possible in advance.
(8) In all other respects, the Buyer is entitled, in accordance with statutory provisions, to reduce the purchase price or withdraw from the contract in the event of a material or legal defect. Furthermore, the Buyer is entitled to claim damages and reimbursement of expenses under statutory provisions, in particular under the Product Liability Act, tort law and the rules on agency without mandate.
(1) The Buyer shall have the statutory rights of recourse within a supply chain (§§ 478, 479 BGB) in addition to its defect claims, without limitation. In particular, the Buyer may demand from the Seller exactly the type of subsequent performance (repair or replacement) that the Buyer owes its own customer in a given case. The Buyer’s statutory right of choice (§ 439 Abs. 1 BGB) remains unaffected.
(2) Before the Buyer recognises or fulfils a defect claim asserted by its customer (including reimbursement of expenses under §§ 478 Abs. 3, 439 Abs. 2 BGB), the Buyer will inform the Seller and request a written statement, briefly outlining the facts. If the Seller fails to provide the statement within a reasonable period and no mutually agreed solution is reached, the defect claim actually granted by the Buyer to its customer shall be deemed owed; the burden of proof to the contrary rests with the Seller.
(3) The Buyer’s recourse claims shall also apply if the Goods were processed further—e.g. installed in another product—by the Buyer or one of its customers before being sold to a consumer.
(4) In the event of a defective delivery, the Buyer reserves the right to charge a flat fee of EUR 195.00 and, in addition, to invoice the Seller for any internal rework costs incurred, which will be coordinated with the Seller in advance.
(1) If the Seller is responsible for a product-related loss, it shall indemnify the Buyer against third-party claims to the extent that the cause lies within the Seller’s sphere of control and organisation and the Seller is externally liable.
(2) Within this indemnification obligation, the Seller shall reimburse expenses pursuant to §§ 683, 670 BGB that arise from or in connection with third-party claims, including recall actions carried out by the Buyer. The Buyer will inform the Seller—wherever possible and reasonable—about the content and scope of any recall measures and give the Seller an opportunity to comment. Statutory claims beyond this remain unaffected.
(3) The Seller shall obtain and maintain product liability insurance with a combined single limit of at least EUR 10 million per personal-injury/property-damage event.
(1) The mutual claims of the contracting parties shall become time-barred in accordance with statutory provisions, unless otherwise stipulated below.
(2) By way of derogation from § 438 Abs. 1 Nr. 3 BGB, the general limitation period for defect claims is three (3) years from the transfer of risk. Where acceptance has been agreed, the limitation period begins upon acceptance. The three-year period also applies correspondingly to claims based on legal defects, without prejudice to the statutory limitation period for third-party in rem claims for restitution (§ 438 Abs. 1 Nr. 1 BGB); moreover, claims based on legal defects shall in no event become time-barred as long as the third party is still entitled to assert the right against the Buyer—particularly because the claim itself is not yet time-barred.
(3) The sales-law limitation periods, including the above extension, shall apply—within the statutory scope—to all contractual claims arising from defects. Where the Buyer is also entitled to extra-contractual damages due to a defect, the regular statutory limitation (§§ 195, 199 BGB) shall apply, unless the application of the sales-law limitation periods results in a longer period in the individual case.
(1) The Seller may not use the Buyer’s company name or business mark for advertising purposes without the Buyer’s prior written consent.
(2) Additions or amendments to the agreements reached—including these Purchasing Terms and Conditions—must be in writing to be effective.
(3) Should any provision of these Purchasing Terms and Conditions be or become invalid, the validity of the remaining provisions shall not be affected. Where these Purchasing Terms and Conditions contain gaps, those legally effective provisions shall be deemed agreed that the contracting parties would have agreed, in light of the economic objectives of the contract and the purpose of these Purchasing Terms and Conditions, had they been aware of the gap.
(4) These Purchasing Terms and Conditions and all legal relations between the Buyer and the Seller are governed by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the rules of private international law. The prerequisites and effects of retention of title are subject to the law of the place where the item is located if and insofar as the choice of German law is impermissible or ineffective there.
(5) If the Seller is a merchant within the meaning of the Handelsgesetzbuch, a legal entity under public law or a special fund under public law, the exclusive—also international—place of jurisdiction for all disputes arising from the contractual relationship shall be the Buyer’s registered office. The Buyer is, however, also entitled to bring an action at the place of performance of the delivery obligation or at the Seller’s registered office.
Version: February 2017
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