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

§ 1 General, scope of application

These General Terms and Conditions of Purchase (GTCP) apply to all business relationships with our business partners and suppliers (hereinafter: suppliers). The GPC shall only apply if the Supplier is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.

These GPC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the supplier shall only become part of the contract if and to the extent that we have expressly agreed to their validity in text form. This requirement of consent shall apply in any case, for example even if we accept the supplier’s deliveries without reservation in the knowledge of the supplier’s General Terms and Conditions.

The GPC shall apply in particular 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 itself or purchases them from suppliers (§§ 433, 651 BGB). The GPC in their respective version shall also apply as a framework agreement for future contracts for the sale and/or delivery of movable goods with the same supplier without us having to refer to them again in each individual case; we shall inform the supplier immediately of any changes to our GPC in this case.

Individual agreements made with the Supplier in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GPC. The content of such agreements shall be governed by a contract in text form or our confirmation in text form.

Legally relevant declarations and notifications to be made to us by the supplier after 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 are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GPC.

§ 2 Offer and conclusion of contract

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

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

The supplier is required to confirm our order in text 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 text form.

All offers, order confirmations, delivery bills and invoices must include our inquiry or order number, our project number and the name of the person in charge at our company.

We reserve the property rights and copyrights to drawings, illustrations, calculations, descriptions and other documents and aids provided by us to the supplier. This shall also apply in particular to data on electronic data carriers or data transmitted by remote data transmission. Without our express consent in text form, the supplier may not make such data or items available to third parties, either as such or in terms of content, nor disclose them or use them itself or through third parties for purposes other than those intended by us. The Supplier shall delete the data without being requested to do so and destroy documents as well as printouts and copies made by the Supplier when they are no longer required by the Supplier in the ordinary course of business. Upon our request, the supplier shall be obliged to surrender the data and data carriers. The obligation to maintain secrecy shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known. The same shall apply accordingly to materials or substances provided as well as to tools, templates, samples or other materials provided by us.
items provided. Any processing, mixing or combining of provided items by the supplier shall be done on our behalf. If third party property rights remain, we shall acquire co-ownership of the new item in the ratio of the value of the items provided to the value of the new item.

Within the bounds of reasonableness, we may demand that the supplier make changes to the design and execution of the delivery item. The supplier shall implement the changes within a reasonable period of time. Reasonable arrangements shall be made by mutual agreement regarding the effects, in particular with regard to additional and reduced costs (if necessary), as well as delivery dates. If no agreement is reached within a reasonable period of time, we shall decide at our reasonable discretion.

The supplier shall not be entitled to commission third parties with the performance of the delivery/service in whole or in essential parts without our prior consent in text form.

The supplier shall ensure that, in the event of delivery of production material, it can also supply us with the delivery items or parts thereof as spare parts for a period of 15 years after termination of the supply relationship on reasonable terms.

§ 3 Prices and terms of payment

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

Unless otherwise agreed in individual cases, the price shall include all services and ancillary services of the supplier (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance). The supplier shall take back packaging material at our request.

The supplier shall announce price increases in writing at least 3 months in advance.

The agreed price is due for payment within 90 calendar days from complete delivery and performance and receipt of a proper 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 case of bank transfer, payment shall be deemed to have been made on time if our transfer order is received by our bank before the expiry of the payment deadline; we shall not be responsible for any delays caused by the banks involved in the payment process.

We do not owe interest on maturities. The interest on arrears shall be 5 percentage points above the prime rate per annum. The statutory provisions shall 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 not be due for payment until a bank licensed for credit transactions in Germany has provided us with an advance payment guarantee in the corresponding amount. We shall be entitled to make agreed payments on account dependent on the provision of an appropriate contract performance guarantee by a bank licensed for credit transactions in Germany.

We shall be entitled to rights of set-off and retention as well as the defense of non-performance of the contract to the extent provided by law. In particular, we shall be entitled to withhold payments due as long as we are still entitled to claims against the supplier arising from incomplete or defective performance. The supplier shall not be entitled to refuse to carry out a defect rectification measure owed by him until the purchase price or remuneration has been paid in full.

The supplier shall only have a right of set-off or retention on the basis of counterclaims that have been legally established or are undisputed.

§ 4 Delivery time and delay in delivery

The delivery date specified by us in the order is binding and means the date of receipt by us or at the agreed delivery address. If the delivery time is not specified in the order and has not been agreed otherwise, it is 1 week from the conclusion of the contract. The supplier is obliged to inform us immediately in writing if he is not likely to be able to meet agreed delivery times – for whatever reason.
If the supplier does not perform or does not perform within the agreed delivery time or if he is in default, our rights – in particular to rescission and damages – shall be determined in accordance with the statutory provisions. The following regulations remain unaffected.

If the supplier is in default, we may demand a contractual penalty in the amount of 0.2% of the net price of the order value per completed calendar day, but in total not more than 5% of the net price of the order value. We shall be entitled to claim the contractual penalty in addition to performance and as a minimum amount of damages owed by the Seller under the statutory provisions; the assertion of further damages shall remain unaffected. This shall not apply if the supplier can prove that he is not responsible for the delay. The supplier reserves the right to prove that no damage or only minor damage has occurred.

The unconditional acceptance of a delayed delivery or service shall not constitute a waiver of the claims for compensation to which we are entitled on account of the delayed delivery or service; if we accept the delayed service, we shall assert the contractual penalty at the latest with the final payment.

The above provisions shall also apply in the event that the Supplier performs partial or complete services on time but not in a manner capable of 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 performance, if and to the extent that the Supplier is responsible for such delay in delivery or performance.

§ 5 Performance, Delivery, Transfer of Risk, Default of Acceptance

The delivery must be accompanied by a delivery bill stating the date (issue and dispatch), the content of the delivery (item number and quantity) and our order identifier (order and project number). If the delivery bill is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment.

Delivery is “free domicile” within Germany to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, the delivery shall be made to our place of business in Wettenberg. The respective destination is also the place of performance (obligation to deliver).

The transfer of ownership of the ordered goods to us is unconditional and without regard to the payment of the corresponding price. In any 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 any case only apply until payment of the delivered goods. In any case, we shall be entitled to process the delivered goods or to dispose of them in any other way without further notice, in particular without consent or notification.

The risk of accidental loss and accidental deterioration of the item shall pass to the customer upon handover at the place of performance.
on us.

§ 6 Packaging, transport and disposal

The supplier undertakes to pack and load the delivery item in such a way that the integrity of the delivery is ensured during loading, unloading and transport. The supplier shall be liable for damage to the delivery item as a result of inadequate packaging.

The supplier shall bear the costs of packaging and shipping. Insofar as we have agreed otherwise with the supplier to bear the costs of transport and packaging ourselves, the supplier shall be obliged to choose the most cost-effective type of transport and/or packaging.

The supplier shall take back transport containers, tools, aids, as well as packaging of all kinds, in particular transport packaging. Foreign suppliers shall additionally pay the customs duties, customs clearance costs, taxes and levies incurred by taking back the transport containers, tools, welding gas cylinders, other auxiliary materials as well as the transport packaging.

§ 7 Secrecy

The Supplier and TELOGS mutually undertake to keep confidential the content of the business relationship and the content of the respective order as well as all information and documents exchanged for this purpose (in particular all illustrations, plans, calculations, execution instructions and production descriptions). Such documents shall be used by both parties exclusively for the contractual performance/delivery and shall be returned or destroyed by the receiving party at the request of the other party within a reasonable period of time at the expense of the other party after termination of the contractual relationship, unless statutory storage regulations conflict therewith.

The destruction of electronically stored confidential information is carried out by the complete and irrevocable deletion of the files or the irretrievable destruction of the data carrier. Complete and irrevocable deletion means, in the case of electronically stored confidential information, that the confidential information is deleted in such a way that any access to this information becomes impossible, using special deletion procedures (for example, by means of “wiping”) that comply with recognized standards (for example, standards of the Federal Office for Information Security).

Upon the Holder’s request, the respective recipient shall represent in writing that it has completely and irrevocably deleted all Confidential Information in accordance with the foregoing and the Holder’s instructions.

Without our consent, the supplier is not entitled to refer to the business relationship in advertising material and on its homepage and to exhibit items manufactured for us.

§ 8 Retention of title

Any processing, mixing or combination (further processing) of provided items by the supplier shall be carried out for us. The same shall apply in the event of further processing of the delivered goods by us, so that we shall be deemed to be the manufacturer and shall acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions.

The transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the purchase price. If, however, we accept an offer of the supplier for transfer of ownership conditional on payment of the purchase price in an individual case, the supplier’s retention of title shall expire at the latest upon payment of the purchase price for the delivered goods. We shall remain authorized to resell the goods in the ordinary course of business even prior to 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, in particular the extended retention of title, the passed-on 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 of title of the goods (including wrong delivery and short delivery as well as improper assembly, defective assembly, operating or operating instructions) and in the event of other breaches of duty by the supplier, unless otherwise stipulated below.

In accordance with the statutory provisions, the supplier shall be liable in particular for ensuring that the goods have the agreed quality when the risk passes to us. In any case, those product descriptions which – in particular by designation or reference in our order – are the subject matter of the respective contract or have been included in the contract in the same way as these GPC shall be deemed to be an agreement on the quality. It makes no difference whether the product description comes from us, the supplier or the manufacturer.

The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial duty to inspect and give notice of defects, subject to the following proviso: Our duty to inspect shall be limited to defects which become apparent during our incoming goods inspection under external appraisal including the delivery papers as well as during our quality control in the random sampling procedure (e.g. transport damage, wrong and short delivery). In other respects, it depends on the extent to which an investigation is feasible in the ordinary course of business, taking into account the circumstances of the individual case.

Our obligation to give notice of defects discovered later remains unaffected. In all cases, our complaint (notice of defect) shall be deemed to have been made without undue delay and in good time if it is received by the supplier within 10 working days.

The costs incurred by the supplier for the purpose of inspection and rectification (including any removal and installation costs) shall be borne by the supplier even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request to remedy a defect shall remain unaffected; in this respect, however, we shall only be liable if we recognized or were grossly negligent in not recognizing that there was no defect.

If the supplier fails to meet its obligation to remedy the defect – at our option by remedying the defect (rectification) or by delivering an item free of defects (replacement) – within a reasonable period set by us, we may remedy the defect ourselves and demand reimbursement from the supplier of the expenses required for this purpose or an appropriate advance payment thereon.

If subsequent performance by the Supplier has failed or is unreasonable for us (e.g. due to particular urgency, risk to operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the Supplier of such circumstances without undue delay, if possible in advance.

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 Manufacturing of specific parts

Drawings, illustrations, plans, calculations, execution instructions and other documents are to be treated confidentially and may not be made accessible to third parties. This also applies after termination of the contract. The documents are to be used exclusively for production based on our order. Any subcontractors or suppliers involved in the production shall be obliged by the supplier accordingly.

We reserve the property rights and copyrights to products manufactured according to documents designed by us. The goods may not be passed on 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 prove that we have incurred 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 all safety and protection regulations prescribed by law, by the supervisory authorities, by the employers’ liability insurance associations and other professional associations are complied with in full. Before performing the work, the Supplier’s personnel shall take all measures that serve to protect the persons assigned to the work and those in the vicinity of the work site. Strict compliance with all accident prevention regulations as well as sufficient accident prevention for its employees is the responsibility of the supplier. The safety regulations at the place of use must be observed.

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

If persons who are not subject to social security contributions are employed, the Supplier shall ensure that they have sufficient accident and health insurance; if they operate a trade, that they have fulfilled the trade law notification obligations (§§14, 15 Gewerbeordnung).

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

§ 12 Producer liability

If the supplier is responsible for product damage, he shall indemnify us against claims by third parties to the extent that the cause lies within his sphere of control and organization and he himself is liable in relation to third parties.

Within the scope of its indemnification obligation, the Supplier shall bear expenses pursuant to. §§ 683, 670 of the German Civil Code (BGB), which arise from or in connection with a claim by a third party, including recall actions carried out by us. We will inform the supplier – as far as possible and reasonable – about the content and scope of recall measures and give him the opportunity to comment. Further legal claims remain unaffected.

The supplier shall take out and maintain product liability insurance with a lump sum coverage of at least EUR 5 million per personal injury/property damage.

§ 13 Industrial property rights of third parties

The Supplier warrants that no third party property rights are infringed in connection with its delivery. If such property rights are 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 as a result of or in connection with the claim by a third party.

§ 14 Limitation

The limitation periods according to the statutory provisions shall apply with the following exceptions:

Insofar as according to the law the limitation period for material defects would be two years, it is extended to 36 months. The limitation period for defects of title is four years beginning with the order confirmation of the respective order. For delivery items and parts replaced within the scope of subsequent performance as well as for delivery items and parts on which defects have been remedied, the limitation period shall recommence upon completion of the subsequent performance. For delivery items that cannot remain in operation during the defect inspection and subsequent performance, the limitation period shall be extended by the time of the defect-related interruption of operation.

§ 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 gap, the validity of the remaining provisions of this Agreement shall not be affected thereby. In this case, the parties undertake to reach an effective agreement that comes as close as possible to the invalid provision.

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

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

We are entitled to store personal data of the supplier which are necessary for the business relationship and to process them for the purpose of handling the business relationship.

(Wettenberg, as of August 2021)