General Terms and Conditions of Purchase of TELOGS GmbH (GTCP)

§ 1 General, Scope

These General Terms and Conditions of Purchase (GTCP) apply to all business relationships with our business partners and suppliers (hereinafter: Suppliers). The GTCP only apply if the supplier is a business person (trader) in accordance with § 14 BGB [German Civil Code]), a legal entity under public law, or a special fund under public law.

These GTCP are exclusively applicable. Suppliers’ deviating, conflicting, or supplementary general terms and conditions only become part of the contract if and insofar as we have expressly given consent to their validity in written form. This requirement of consent applies in all cases, for example, even when we accept the Supplier’s deliveries without objection and in full knowledge of the Supplier’s general terms and conditions.

The GTCP particularly apply to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as: goods), irrespective of whether the Supplier manufactures the goods their self or purchases them from other suppliers (§§ 433, 651 BGB). The GTCP in their respective version also apply as a framework agreement for future contracts for the sale and/or delivery of movable goods with the same Supplier without the need for us to refer to them again in each individual case; we shall immediately inform the Supplier in the event of any changes to our GTCP.

All instances of individual agreements made with the Supplier in individual cases (including subsidiary agreements, supplements, and amendments) take precedence over these GTCP. The content of such agreements shall be governed by a contract in written form or our confirmation in written form.

Legally relevant declarations and notifications to be made to us by the Supplier subsequent to the conclusion of the contract (e.g., setting of deadlines, reminders, declaration of withdrawal) must be made in writing to be effective.

References to the applicability of statutory provisions only hold clarifying significance. Even without such clarification, the statutory provisions therefore apply insofar as they are not directly amended or expressly excluded in these GTCP.

§ 2 Offer and conclusion of contract

The Supplier’s offer shall be made free of charge and shall not constitute any obligation for the recipient. Cost estimates are only remunerated by special agreement.

Our order shall be deemed binding upon submission or confirmation in written form, at the earliest. The Supplier shall point out obvious errors (e.g., spelling and calculation errors) and any incompleteness in the order, including the order documents, to us for the purpose of correction or completion before acceptance; otherwise the contract is deemed to have not been concluded.

The Supplier is required to confirm our order in written form within a period of 5 working days. A delayed acceptance of our order shall be deemed a new offer and requires acceptance by us in written form.

All offers, order confirmations, delivery notes, and invoices shall state our request for quotation (RFQ) number or order number, as well as our project number and the name of the person responsible for this area within our company.

We reserve the property rights and copyrights to drawings, illustrations, calculations, descriptions, and other documents and auxiliary aids provided by us to the Supplier. This also particularly applies to data on electronic data carriers or data transmitted by remote data transmission. The Supplier may neither make such data or objects accessible to third parties, as such or nor in terms of content, without our express consent in written form, nor disclose them or use them their self or through third parties for purposes other than those intended by us. The Supplier shall delete the data without being asked to do so and destroy documents as well as printouts and copies made by their self  if they are no longer required by them in the ordinary course of business. Upon our request, the Supplier shall be obligated to surrender the data and data carriers. The obligation to maintain secrecy shall only expire if and insofar as the knowledge contained in the documents provided has become generally known. The same applies accordingly to any materials or substances provided as well as to tools, templates, samples, or other objects provided by us.
Any processing, mixing, or combining of objects provided by the Supplier shall be carried out on our behalf. If the property rights of third parties remain, we shall acquire co-ownership of the new object in the ratio of the value of the objects provided to the value of the new object.

We may demand changes to the design and execution of the delivery object from the Supplier within the scope of reasonableness. The Supplier shall implement the changes within a reasonable period of time. Suitable arrangements shall be made by mutual agreement regarding the consequences, particularly in regard to the additional and reduced costs (if necessary), as well as to the delivery dates. In the event that no agreement is reached within a reasonable period of time, we may come to a decision using reasonable discretion.

The Supplier is not entitled to commission third parties with the fulfilment of the delivery/service in the whole or in essential parts without our prior consent in written form.

The Supplier shall ensure that, in the event of delivery of production material, they are also able to supply us, with reasonable terms, with the delivery objects or parts thereof as replacement parts for a period of 15 years after termination of the supply relationship.

§ 3 Prices and payment terms

The price stated in the order is binding. All prices are net plus statutory value added tax.

Insofar as not otherwise agreed in individual cases, the price includes all services and ancillary services of the Supplier (e.g., installation, fitting ), as well as all ancillary costs (e.g., appropriate packaging and transport costs including any transport and liability insurance). The Supplier shall allow the return of packaging material upon our request.

The Supplier shall provide at least 3 months’ notification of any price increases in writing.

The agreed price is due for payment within 90 calendar days of complete delivery and fulfilment and upon receipt of a properly prepared invoice (stating the order and delivery note number). If we make payment within 14 calendar days, the Supplier shall grant us a 3% discount on the net amount of the invoice. In the event of bank transfer, payment shall be deemed to have been made on time if our transfer order is received by our bank before expiry of the payment deadline; we shall not be responsible for any delays caused by the banks involved in the payment process.

We shall not be liable for interest on maturity. The default interest amounts to 5 percentage points above the base interest rate per annum. The statutory provisions apply to the occurrence of our default, whereby, if applicable, a written reminder by the Supplier shall be required in each case.

Agreed advance payments shall only be due for payment when a bank authorised for credit transactions in Germany has provided us with an advance payment guarantee in the corresponding amount. We shall be entitled to make agreed advance payments contingent upon the provision of an appropriate contract fulfilment guarantee by a bank authorised for credit transactions in Germany.

We shall be entitled to offsetting and retention rights, as well as the defence of non-fulfilment of the contract to the extent provided by law. In particular, we shall be entitled to withhold due payments insofar as we remain entitled to claims from incomplete or defective fulfilment against the Supplier. The Supplier shall not be entitled to refuse to carry out their obligation to defect rectification measures until the purchase price or remuneration has been paid in full.

The Supplier shall only have offsetting and retention rights on the basis of counterclaims that have been legally established or are undisputed.

§ 4 Delivery time and delivery default

The delivery date stated by us in the order is binding and means the date of receipt by us at the agreed delivery address. If the delivery time is not specified in the order and has not been agreed otherwise, it shall be 1 week from the conclusion of the contract. The Supplier is obligated to immediately inform us in writing in the event that they are likely unable to meet agreed delivery times – for any reason.
If the Supplier does not fulfil deliver or does not fulfil this within the agreed delivery time or if they are in default, our rights – particularly to rescission and damages – shall be determined in accordance with the statutory provisions. The following provisions shall remain unaffected.

If the Supplier is in default, we shall be entitled to claim a contractual penalty in the amount of 0.2% of the net price of the order value per completed calendar day, but no more than 5% in total of the net price of the order value. We shall be entitled to claim the contractual penalty in addition to the fulfilment and as a minimum amount of damages payable by the Supplier in accordance with the statutory provisions; the assertion of further damages shall remain unaffected. This shall not apply if the Supplier can prove that they are not culpable for the default. The Supplier reserves the right to prove that no damage at all or only a lesser damage has been incurred.

The unconditional acceptance of a delayed delivery or service shall not be deemed a waiver of the claims for compensation to which we shall be entitled as a result of the delayed delivery or service; if we accept the delayed fulfilment, we shall claim the contractual penalty with the final payment, at the latest.

The above provisions shall also apply in the event that the Supplier carries out partial or complete services in a timely manner, but not in such a manner that allows acceptance.

Furthermore, we may demand that the Supplier indemnify us against all claims for damages and/or contractual penalties and/or other claims asserted against us by our Customers in connection with a delay in delivery or fulfilment if and insofar as the Supplier is culpable for such a delay in delivery or fulfilment.

§ 5 Fulfilment, delivery, transfer of risk, default of acceptance

The delivery must be accompanied by a delivery note stating the date (issue and dispatch), the contents of the delivery (article number and quantity), and our order identifier (order and project number). We shall not be responsible for any resulting delays in processing and payment in the event that the delivery note is missing or incomplete.

Delivery shall be made free domicile within Germany to the location specified within the order. If the destination location is not specified and no other arrangements have been agreed, the delivery shall be made to our place of business in Wettenberg. The respective destination location is also the place of fulfilment (obligation to deliver).

The transfer of ownership of the ordered goods to us shall be unconditional and without regard to the payment of the corresponding price. In each case, all forms of simple, extended, or prolonged retention of title are excluded, so that any retention of title effectively declared by the Supplier shall in each case only apply until payment of the delivered goods. In each case, we shall be entitled to process the delivered goods or to dispose of them in any other way, particularly without consent or notification.

The risk of accidental loss and accidental deterioration of the object shall pass
to us upon handover at the place of fulfilment.

§ 6 Packaging, transport and disposal

The Supplier is obligated to package and load the delivery objects in such a manner that the integrity of the delivery is ensured during loading, transport, and unloading. The Supplier shall be liable for damage to the delivery objects as a result of inadequate packaging.

The Supplier shall bear the costs of packaging and dispatch. Insofar as we have agreed otherwise with the Supplier to bear the transport and packaging costs ourselves, the Supplier shall be obligated to choose the most economical type of transport and/or packaging.

The Supplier shall allow the return transport containers, tools, auxiliary aids, and packaging of all kinds, particularly including transport packaging. Foreign Suppliers shall additionally pay the customs duties, customs clearance costs, taxes, and levies incurred in connection with the return of the transport containers, tools, welding gas cylinders, other auxiliary aids, and transport packaging.

§ 7 Secrecy

The Supplier and TELOGS are mutually obligated to maintain the secrecy of the content related to the business relationship and the content related to the respective order, as well as all information and documents exchanged for these purposes (particularly all illustrations, plans, calculations, execution instructions, and production descriptions). Such documents shall be used by both parties for the sole purpose of the contractual fulfilment/delivery and, upon termination of the contractual relationship, these shall be returned by the receiving party upon the request of the other party within a reasonable period of time at the expense of the requesting party or shall be destroyed, insofar as this is not in conflict with statutory storage regulations.

The destruction of electronically stored confidential information shall be carried out through the complete and irrevocable deletion of the files or the irretrievable destruction of the data carrier. Complete and irrevocable deletion in the case of electronically stored confidential information means that the confidential information is deleted in such a manner that any access to this information becomes impossible, using special deletion procedures (e.g., by means of wiping) that comply with recognised standards (e.g., standards of the German Federal Office for Information Security).

Upon the holder’s request, the respective recipient shall affirm in writing that they have completely and irrevocably deleted all confidential information in accordance with the aforementioned measures, as well as the holder’s instructions.

The Supplier shall neither be entitled to refer to the business relationship in advertising material or on their homepage, nor to exhibit objects manufactured for us without our consent.

§ 8 Retention of title

Any processing, mixing, or combination (further processing) of provided objects carried out by the Supplier shall be undertaken on our behalf. The same shall apply in the event of further processing of the goods supplied by us with the result that we shall be deemed to be the manufacturer and shall acquire ownership of the product upon further processing in accordance with the statutory provisions, at the latest.

The transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the purchase price. If we nevertheless accept an offer of transfer of title by the Supplier conditional upon payment of the purchase price in an individual case, the Supplier’s retention of title shall expire upon payment of the purchase price for the goods delivered, at the latest. We shall remain authorised to resell the goods in the ordinary course of business even before payment of the purchase price with advance assignment of the claim arising therefrom (alternatively, the simple reservation of title extended to the resale shall apply). This excludes all other forms of retention of title, particularly the extended retention of title, the transferred retention of title, and the retention of title extended to further processing.

§ 9 Defective delivery

The statutory provisions shall apply to our rights in the event of material defects and defects in title of the delivered goods (including incorrect and short deliveries, as well as improper assembly, defective assembly, and operating or instruction manuals) and in the event of other breaches of obligation by the Supplier, insofar as this is not otherwise defined in the following provisions.

In accordance with the statutory provisions, the Supplier shall be particularly obligated to ensure that the goods have the agreed quality at the time of the transfer of risk to us. In each case, those product descriptions which – particularly by designation or reference in our order – are the object of the respective contract or were included in the contract in the same manner as these GTCP shall be deemed to be an agreement on the quality. Whether the product description originates from us, from the Supplier, or from the manufacturer is irrelevant.

The statutory provisions (§§ 377, 381 HGB) apply to the commercial obligation to inspect and give notification of defects with the following proviso: Our obligation to inspect shall be limited to defects that become apparent during our incoming goods inspection using an exterior examination, including the delivery papers, as well as during our quality control during the random sampling procedure, (e.g., transport damage, incorrect and short delivery). In all other respects, this shall be dependent upon the extent to which an inspection is feasible in the ordinary course of business, taking the individual circumstances into account.

Our obligation to give notification of defects that are subsequently discovered shall remain unaffected. In all cases, our complaint (notification of defect) shall be deemed to be immediate and timely if it is received by the Supplier within 10 working days.

The expenses incurred by the Supplier for the purpose of examination and rectification (including any disassembly and installation costs) shall be borne by the Supplier even in instances where no actual defect is established. Our liability for damages in the event of an unjustified request for rectification of defects shall remain unaffected; in this respect, however, we shall only be liable if we had recognised or were grossly negligent in not recognising that no defect exists.

If the Supplier fails to meet their obligation to subsequent fulfilment within a reasonable period of time determined by us, we may remedy the defect ourselves – at our discretion, by remedying the defect (rectification) or by delivering an object free of defects (replacement delivery) – and require reimbursement for the expenses necessarily incurred for the rectification or an appropriate advance payment for this purpose from the Supplier.

If subsequent fulfilment by the Supplier has failed or is unreasonable for us (e.g., due to particular immediacy, danger to operational safety, or imminent disproportionate damage), no deadline need be set; we shall promptly inform the Supplier of such circumstances accordingly and in advance when possible.

Otherwise, in the event of a material defect or defect of title, we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, we shall be entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.

§ 10 Manufacture of specific parts

Drawings, illustrations, plans, calculations, execution instructions, and other documents shall be treated with confidentiality and may not be made accessible to third parties. This shall also apply after termination of the contract. The documents shall be used exclusively for production on the basis of our order. Any subcontractors or Suppliers involved in the production shall be accordingly obligated by the Supplier.

We reserve the property rights and copyrights to products manufactured in accordance with documents designed by us. They shall not be transferred or delivered to third parties without our express written consent.

If the Supplier violates the above obligation, we shall be entitled to claim a contractual penalty in the amount of € 50,000 per violation. The Supplier shall be entitled to submit evidence that we have suffered no damage at all or only significantly less damage than the aforementioned contractual penalty.

§ 11 Accident prevention, safety and protection regulations

The Supplier shall be liable for ensuring that they are in full compliance with all safety and protection regulations prescribed by law, by the supervisory authorities, by the employers’ liability insurance associations, and other professional associations. Before carrying out the work, the Supplier’s personnel shall take all measures to protect the persons entrusted with the work and those in the vicinity of the work site. Strict compliance with all accident prevention regulations, as well as sufficient accident protection of their employees is the responsibility of the Supplier. The safety regulations at the place of use must be observed.

The Supplier shall ensure that their employees engaged for this order are properly registered for social insurance and are provided with a social insurance card; that wage tax and social insurance contributions (pension, health, unemployment insurance, employers’ liability insurance association) are properly paid for the employees; that foreign employees have the necessary work permits.

If persons not subject to social security contributions are engaged, the Supplier shall ensure that they have sufficient accident and health insurance and if they are engaged in a trade, that they have fulfilled the notification obligations under trade law (§§ 14, 15 GwO [German Trade Ordinance]).

We may demand proof of compliance with the aforementioned obligations at any time. If the Supplier does not comply with the obligation, we shall be entitled to withdraw the order from them with immediate effect, as well as to demand compensation for damages incurred.

§ 12 Producer liability

If the Supplier is responsible for product damage, they shall indemnify us against claims by third parties insofar as the cause lies within their sphere of control and organisation and they their self are liable in relation to third parties.

Within the scope of their indemnification obligation, the Supplier shall reimburse expenses in accordance with §§ 683, 670 of the BGB arising from or in connection with a claim by third parties, including recall actions carried out by us. We shall inform the Supplier regarding the content and scope of recall measures – insofar as possible and reasonable – and give them the opportunity to comment. Further legal claims remain unaffected.

The Supplier shall take out and maintain product liability insurance with a flat rate coverage of at least 5 million Euro per personal injury/property damage.

§ 13 Third-party property rights

The Supplier shall ensure that no third-party property rights are infringed in connection with their delivery. Should such property rights be infringed, the Supplier shall indemnify us against claims for damages by third parties upon first written request. The Supplier’s indemnification obligation relates to all expenses necessarily incurred by us from or in connection with the claim by a third party.

§ 14 Limitation

The limitation periods in accordance with the statutory provisions apply with the following exceptions:

Insofar as the limitation period for material defects would be two years in accordance with the law, it shall be extended to 36 months. The limitation period for defects of title shall be four years beginning with the order confirmation of the respective order. For delivery objects and parts replaced within the scope of subsequent fulfilment, as well as for delivery objects and parts on which defects have been remedied, the limitation period shall recommence upon completion of the subsequent fulfilment. For delivery objects that are unable to remain in operation during the defect inspection and subsequent fulfilment, the limitation period shall be extended by the time of the interruption of operation resulting from the defect.

§ 15 Partial invalidity, place of jurisdiction, and applicable law

Should one or more provisions of this agreement be or become invalid or void in whole or in part, or should this agreement contain a loophole, this shall not affect the validity of the remaining provisions of this contract. In this case, the parties shall be obligated to reach a valid agreement that comes as close as possible to the invalid provision.

The place of jurisdiction is Gießen, Germany. However, we shall also be entitled to bring an action at the general place of jurisdiction of the Supplier.

The law of the Federal Republic of Germany shall apply to these GTCP and all legal relationships between us and the Supplier, to the exclusion of international uniform law, particularly the UN Convention on Contracts for the International Sale of Goods.

We shall be entitled to store personal data of the Supplier that are necessary for the business relationship and to process them for the purpose of handling the business relationship.

(Wettenberg, Version: August 2021)