General Terms and Conditions of Purchase
General Terms and Conditions of Purchase
of ismet GMBH (abbreviated: ISMET): Version 6/2024
I. Scope of validity
1. These General Terms and Conditions of Purchase form part of all contracts between us and the supplier, unless a specific contract provides otherwise. Any other terms, including those of the supplier, shall only form part of a contract if we agreed to their application in writing in advance. By accepting supplies or services without reservation we do not accept the supplier’s terms and conditions.
2. All other arrangements between us and the supplier for the purpose of executing this contract shall be in writing in the contract. Arrangements in the contract that deviate from these terms and conditions shall prevail over these terms and conditions.
3. Insofar as these General Terms and Conditions of Purchase do not contain any other agreement and the parties have not agreed otherwise in the contract, the statutory provisions of the agreed applicable law shall apply.
4. These General Terms and Conditions of Purchase shall only apply to entrepreneurs.
II. Order; Confirmation of Order
1. Conclusion of a contract is proposed by a written order; verbal and telephoned orders must be confirmed subsequently in writing in order to be binding. The contract between us and the supplier is formed by the supplier's unconditional acceptance of the order in writing. Acceptance of an order with reservations or changes does not create a contract unless we confirm the reservations or changes in writing.
2. We may revoke the order if the supplier has not accepted it in writing within five working days of receipt (confirmation of order).
III. Delivery time
1. The delivery time agreed between the parties in the contract is binding.
2. Whether a delivery is on time is determined by the moment of its receipt at the place of destination/delivery determined by us in accordance with Incoterms ® 2020, and whether a delivery with installation or assembly and of services is on time is determined by its acceptance by us.
3. If circumstances arise or threaten to arise which prevent compliance with the agreed delivery time, the supplier shall notify us immediately in writing of the reasons and the expected duration of the delay; this does not relieve the supplier of its obligation to deliver properly and on time, unless otherwise agreed.
4. If the supplier is in default with agreed delivery, we shall be entitled to charge a contractual penalty of 0.3% of the delivery price for each commenced working day of delay, but not more than 5% of the total delivery price. We may claim the payment of the contractual penalty until the delivery has been paid in full. We have the right to unilaterally offset the contractual penalty against the delivery price.
5. Claiming or payment of the contractual penalty does not affect our right to compensation for damages and does not relieve the supplier of the obligation to deliver the goods properly and on time.
IV. Transfer of risk of loss and damage, dispatch, place of performance, transfer of ownership
1. In case of deliveries with installation or assembly and in case of services, the risk of damage shall pass upon takeover, in case of deliveries without installation or assembly, upon takeover by us at the agreed place of destination/delivery, in accordance with Incoterms ® 2020. Unless otherwise agreed, DDP (to agreed place of destination) Incoterms ® 2020 applies if (a) the supplier's registered seat and the place of destination are in the same country or if (b) the supplier's registered seat and the place of destination are both in the European Union. If the above aforementioned conditions are not met, Incoterms ® 2020 apply without specifying DAP (to agreed place of destination) if not agreed otherwise.
2. Unless otherwise agreed, the packaging costs are included in the agreed price. If we agree with the supplier on a price EXW according to Incoterms ® 2020 or without packaging, we shall only bear the most favourable freight costs and packaging costs; this does not relieve the supplier of the obligation to secure the protection of the delivery during its transport.
3 Each delivery shall be accompanied by a delivery note stating the contents as well as the complete order code.
4. If we bear the transport costs, we must be notified immediately that the goods are ready for dispatch. If DAP/DDP (to agreed place of destination) is agreed in accordance with Incoterms ® 2020, we may also determine the mode of transport. Additional costs for any accelerated transport necessary to meet a delivery date shall be borne by the supplier.
5. Ownership shall pass to us upon handover or takeover.
V. Prices, Terms of Payment
1. The price agreed in the contract is binding and the highest permissible.
2. Invoices shall be sent to us separately from the goods, and preferably in digital form. Any additional services and deliveries shall be listed separately in the invoice with reference to the previous written agreements.
3. The due date of the invoice is at least 30 calendar days. The due date shall commence at the earliest from the date of receipt of a proper invoice or the supply or service rendered in full, whichever is later. Unless otherwise agreed, the supplier grants a discount of 3 % on the price of the delivery if the invoice is paid within 14 days, in which case the supplier shall issue a credit note for 3% of the price of the delivery immediately.
4. The assignment of the payment claim to third parties requires our prior written consent.
5. In the event of a material defect of the delivery, we are entitled to withhold a proportionate part of the payment until the defect has been duly remedied.
6. We shall be entitled to unilateral set-off and retention to the extent provided by law.
7. As security for a down payment / advance payment, the supplier shall provide us with a directly-enforceable bank guarantee (valid till full delivery, but for at least 6 months) at the first request from a major European bank if the sum agreed in the contract exceeds EUR 25,000. We may accept a guarantee declaration from a solvent affiliated company instead. The claims arising from the guarantee may not expire prior to the respective secured claim against the supplier.
VI. Receiving inspection, liability for defects
1. Our obligation to inspect the goods upon arrival is limited to deviations in quantity, recognisable transport damage and obvious, from outside upon-takeover recognisable defects. The period of notice for these aforementioned defects is two weeks from takeover. For notification of all other obvious or concealed defects which are only discovered during processing or use, a period of two weeks from their discovery shall apply. Other legal obligations and time limits in connection with the detection and notice of defects shall not apply.
2. We are entitled to the statutory claims for defects in full; in every case, we shall be entitled to demand, at our discretion, that the supplier according to our choice either rectifies the defect or delivers a new item which is free of defects.
3. If the supplier fails to remedy the defect or to deliver a new item free of defects within the reasonable period set by us, we are entitled (i) to withdraw from the contract in whole or in part without compensation, or (ii) to demand a reduction in the price or (iii) to remedy the defect or arrange for the delivery of a new item (by ourselves or a third party) at the supplier`s cost. Our right to compensation for damages is expressly reserved.
4. Whether a new item is delivered on time is determined by the moment of its receipt at the place of destination.
5. We may assert the rights set out in section VI.3 without setting a deadline for the supplier to remedy the defect or to deliver a new item free of defects if we have a special interest in remedying the defect to avoid our own delay or for other urgency reason and to request the supplier to remedy the defect within a reasonable period is unreasonable for us.
6. The supplier shall pay a penalty in the amount of EUR 50 net for each defective item in each delivery to compensate for the increased expenses incurred within the scope of the incoming goods inspection. We may unilaterally set off the contractual penalty against any supplier`s payment claim or demand the supplier to pay the penalty; we expressly reserve the right to claim further damages and other warranty claims. If the supplier proves that the costs for the incoming inspection of the goods were lower than the contractual penalty, the contractual penalty shall be paid in the amount proven by the supplier.
7. The supplier shall provide a quality guarantee for a period of 24 months, calculated from the transfer of risk or acceptance, unless the law provides for a longer period. If the supplier makes a new delivery or rectifies a defect under his obligation to rectify defects, the period stated here in respect of the newly delivered or repaired items shall start again.
8. Should the supplier be liable for product damage, for which we are held liable for product damage, the supplier shall be obliged to indemnify us against claims for damages by third parties upon first request insofar
as the cause lies within his sphere of control and organisation and/or he is himself liable for damage to third parties. Within the scope of his liability, the supplier shall also reimburse all expenses arising from or in connection with a recall action (product call-back) carried out by us. We shall inform the supplier of the content and scope of the recall – insofar as this is possible and reasonable – and give him the opportunity to comment. In all other respects, the statutory provisions shall apply.
9. The supplier shall ensure by marking the products or, if this is impossible or impractical, by other suitable measures, that he can immediately determine which other products could be affected if a defect occurs in products. The supplier shall inform us about his labelling systems or other measures in such a way that we can make our own determinations to the extent necessary.
10. The supplier shall insure himself against risks arising from product liability to an appropriate amount and shall on request submit the insurance policy and/or his insurance confirmation to us for inspection.
VII. Provision of materials
1. Materials provided as well as information made available by us to the supplier shall remain our property and shall be stored separately free of charge and marked as our property by the supplier.
2. Use of the materials is only permissible for the purpose of fulfilling of our orders; we remain the holder of all intellectual property rights to the materials provided. The supplier shall pay compensation in the event of culpable depreciation or loss, whereby the supplier shall also be liable for simple negligence. This shall also apply to the invoiced provision of order-related materials.
VIII. Tools, moulds, patterns, confidentiality
1. Without our written consent, tools, moulds, samples, models, drawings, illustrations and other documents provided by us or manufactured for us, as well as items manufactured subsequently, may not be passed on to third parties or used for purposes other than the contractual purposes. We reserve the property rights and copyrights to these. They are to be used exclusively for production on the basis of our order and are to be returned to us immediately after completion of the order. Furthermore, they are to be secured against unauthorised inspection or use. Subject to further rights we may demand their surrender if the supplier violates these obligations.
2. The supplier is obliged to treat all knowledge and experience, documents, assignments, business practices or other information obtained from us and about us as well as the conclusion of the contract and its results as confidential to third parties - even after the end of the contractual obligation - unless they have become legally known to the general public or unless we have given our written consent to their disclosure in individual cases. The supplier shall use this information solely for the purposes necessary for the performance of the contract.
IX. Code of conduct for suppliers
1. The supplier agrees to comply with the provisions of the Supplier Code of Conduct which is available for review on our website www.ismet.cz
2. If the supplier culpably breaches the obligations arising from the Code of Conduct, we shall be entitled, without prejudice to further claims, to withdraw from the contract or to terminate the contract if the supplier fails to remedy the breaches of obligation within a reasonable grace period provided by us.
X. Product conformity
1. If the supplier supplies products which are subject to statutory and other legal requirements with regard to their placing on the market and their further marketing in the European Economic Area or corresponding requirements in other countries of use notified by us, then he shall ensure that the products comply with these requirements at the time of the transfer of risk. He shall immediately and upon request provide us with all declarations of conformity.
2. If the supplier delivers products whose product components are in a list of declarable substances currently valid at the time of the order, or which are subject to material restrictions and/or material information obligations due to laws (e.g. REACH, RoHS, California Proposition 65), the supplier shall assure us upon request free of charge that the required limit values and documentation obligations are complied with. Before accepting the order, the supplier shall expressly warn us that the delivery item is subject to the special requirements and shall expressly confirm meeting all manufacturer obligations (in particular labelling obligation, take-back obligation, etc.) arising from the relevant laws and regulations with regard to us.
3. The supplier expressly assures that the delivered goods comply with all requirements of any laws on placing a product on a market, the taking back and the environmentally-sound disposal of electrical and electronic equipment (Act No. 542/2020 Coll., on end-of-life products based on the WEEE Directive 2012/19/EU) as amended, insofar as the goods fall within the scope of these laws, regulations and directives.
4. The supplier shall institute appropriate measures to ensure that his supplies and services comply with the requirements arising from Regulation (EU) 2017/821 dated 17 May 2017 establishing supply chain due diligence obligations and the Act implementing it dated 6 May 2020 and Section 1502 of the Dodd-Frank Act (as applicable), as amended, with respect to the use of so-called conflict minerals (e.g. tantalum, tungsten, tin or gold).
XI. Provisions on export control and foreign trade data
The supplier is obliged to comply with the applicable national and international foreign trade or customs requirements ("Foreign Trade or Customs Requirements"). The supplier is obliged to immediately provide us with all information and data in writing that we need to comply with the Foreign Trade or Customs Requirements for export, import and re-export, in particular all applicable export list numbers including the Export Control Classification Number according to the U.S. Commerce Control List (ECCN); the statistical commodity number according to the current commodity classification of foreign trade statistics and the HS (Harmonized System) Code and country of origin (non-preferential origin) and, if requested by us, supplier declarations on preferential origin (for European suppliers) or certificates on preference (for non-European suppliers).
XII. Data protection
1. Within the scope of and exclusively for the purpose of executing the contract, we also process personal data of our suppliers and their employees (e.g. contact data). These data are attributed to the legal entity of the supplier and are only processed by us or companies which are part of the Phoenix Mecano Group. All our employees are bound in writing to data confidentiality and have been instructed on the data protection regulations which are to be observed. Our data protection declaration can be found at our website www.ismet.de/en/data-privacy-statement/.
2. If the supplier gains access to personal data when performing the contract, he shall observe the applicable data protection regulations, and in particular collect, process and/or use personal data exclusively for the purpose of performing the contract, oblige his employees to maintain data secrecy and instruct them on the data protection regulations to be observed. Data other than that required for the performance of the contract may not be stored.
XIII. Place of jurisdiction, applicable law
1. Czech substantive law shall apply with the exclusion of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980.
2. The exclusive place of jurisdiction for all disputes relating to this contract shall be courts of the Czech Republic with jurisdiction according to the registered seat of our company, unless the law provides for exclusive jurisdiction of other Czech court. We however reserve the right to assert our claims at any other permissible place of jurisdiction as provided by law.
3. The English and German language version of these terms and conditions is provided for reference purposes only. Only the Czech language version is legally binding.
Version: 6/2024