General Terms and Conditions of purchase
of ismet GMBH (abbreviated: ISMET): Version 1/2018
1.1 The following conditions apply exclusively for all contractual relations between ISMET and the supplier. We do not recognise contradictory conditions or conditions deviating for these Terms and Conditions of Purchase unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Purchase also apply if we accept delivery and/or pay for said delivery without reservation while fully aware of the supplier's conditions which contradict or deviate from our Terms and Conditions of Purchase.
1.2 All agreements concluded between us and the supplier for the purpose of implementation of this contract must be recorded in writing.
1.3 Our Terms and Conditions of Purchase apply exclusively towards enterprisers as defined in Article 310, para. 1 of German Civil Code [BGB].
2. Drawings and documents
We hereby reserve the ownership or copyright to orders issued by ISMET, contracts originating from us or third parties, drawings, figures, calculations, descriptions, models, tools and other documentation and aids (‘confidential information’) made available to the supplier. Without our express prior approval, the supplier must not make this confidential information as such or its contents available to or disclose it to third parties, nor are they permitted to utilise it themselves or via a third party, nor duplicate said information. The contractor assumes liability for the loss and damage and any misuse. On request, they must return this confidential information and any copies to us complete if they no longer require it in the normal course of business. The confidentiality duty also applies after the termination of this contract; it expires if and to the extent that the documents and items, etc. transferred to them contain knowledge that has become generally known.
3. Prices / payment conditions / processing costs in case of incorrect invoicing
3.1. The price indicated in the order is binding. For lack of a deviating written agreement, the price includes delivery DAP (Incoterms 2010) Neue Str. 20A, D-52382 Niederzier, Germany and packaging. The use of reusable packaging requires a separate agreement.
3.2. Supplier invoices must include the communicated delivery and billing address of the purchaser, the order number, exact quantity specification, material number and exact designation, reference of the shipment, weight and type of package. The supplier must reimburse us for all processing costs arising as a result of disregard of this obligation, insofar as they cannot prove that they are not responsible for the breach of duty. The processing costs are billed at a flat rate of EUR 50.00. The supplier has the right to prove that ISMET did not incur any damages at all or that said damages were significantly lower than the flat rate. If we are entitled to further damage claims, they remain unaffected.
3.3. We pay, unless something different is agreed upon in writing, incoming invoices after 30 days minus a discount of 2% or net within 60 days after receipt of invoice. We only enter into default, even with the terminability of payment periods as determined by the calendar, if we have received a written reminder after the period has elapsed. If we enter into default of payment, the interest rate for default interest is 2 % with reservation of proving higher default damages by the supplier or lower default damages by us.
3.4. We are entitled to offsetting and retention rights within the statutory scope.
4. Delivery period and order confirmation
4.1. The delivery period indicated in the order is binding.
4.2. The supplier is obligated to notify ISMET immediately in writing if circumstances arise or become recognisable that the required or agreed
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delivery period cannot be observed.
4.3. If nothing different has been agreed upon, the order must be confirmed in writing within two work days. If no order confirmation is received within this period, the order applies as accepted. The order confirmation should contain at least the price, quantity and delivery date. The supplier informs ISMET in detail about all planned plant holidays, including extended weekends before and after legal holidays so that ISMET can take them into account in their planning.
5. Liability for breach of duty
5.1. In case of default of delivery, the liability of the supplier is based on the statutory provisions.
5.2. The supplier is responsible for ensuring that all deliveries/performances are state-of-the-art, conform to applicable statutory provisions and standards, regulations and directives of authorities, employers’ liability insurance associations and trade associations. The supplier is also responsible for ensuring that all good which they deliver are free from defects and have the agreed characteristics and are suitable for the relevant purpose of use.
5.2.1. We are obligated to inspect the goods after receipt by us for identity, completeness and transport damages and to do so as soon as is customary in the normal course of business. Reports of defects apply as timely if they have been sent within ten (10) days after discovery of a defect. Concealed material defects are always reported on a timely basis if reports to the supplier take place in the same manner within ten (10) work days after discovery.
5.2.2. We are entitled to demand subsequent fulfilment by way of improvement or delivery of a new item free from defects, according to our discretion. The supplier shall bear the costs for subsequent fulfilment.
This also includes our additional expenses for the processing of justified material defects and defects of title. These are subject to a flat rate of EUR 100 per delivery. The supplier has the right to prove that ISMET did not incur any expenses at all or that said expenses were significantly lower than the flat rate.
If we are entitled to further claims for damages and compensation for reimbursement, they remain unaffected. The supplier must also bear all expenses necessary for the purpose of subsequent fulfilment, particularly transport, road, labour and material costs, installation and removal costs and costs for determining the cause of damage.
5.2.3. In case of irreversible defects, entitled immediately to withdrawal, reduction and compensation for damages; in case of reversible defects after the unsuccessful expiration of a grace period for subsequent improvement or re-delivery set by us and/or after a second failed attempt at subsequent improvement, we are also entitled to withdrawal, reduction and compensation for damages.
5.2.4. In addition to the right to withdraw or, with unsuccessful subsequent fulfilment, we have a claim to compensation for damages instead of the (entire) performance as stipulated by statutory provisions.
5.2.5. Instead of the compensation for damages in place of performance, we can demand compensation for expenses incurred in expectation of receipt of the performance free from defects.
5.2.6. If a third party asserts rights on the delivered goods and claims are asserted against us by said third party, the supplier is obligated to indemnify us against said claims on the first written request. The indemnity obligation applies to all expenses which we have necessarily incurred from or in connection with the assertion of rights by a third party.
5.3. Compensation for consequential damages from defects: The supplier is liable in accordance with the statutory provisions for a breach of general contractual due diligence for damages which we have incurred due to the defectiveness of the purchase item on legally protected interests other than the purchase item itself and to our other assets.
5.4. Breach of other professional obligations
5.4.1. For damages incurred by us due to a breach of other professional obligations of the supplier in addition to delivery of defective products, the supplier shall be liable according to the statutory provisions.
5.5 The place of fulfilment for subsequent improvement is the location in which the supplier has delivered the goods.
6. Period of limitation of claims for defects
6.1. The claims identified in 5.2. and 5.3. based on material defects are limited to a period of 36 months,
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calculated from the time of delivery to ISMET. Rights of recourse in the supply chain in accordance with Articles 478 and 479 of German Civil Code [BGB] remain unaffected.
6.2. Claims based on defect of title are subject to the statutory period of limitation.
7. Product liability – indemnity – liability insurance coverage
7.1. If the supplier is responsible for product damage, they are obligated to indemnify us from third-party damage claims on first request, because the cause originates from their sphere of influence and organisation and they are liable in the outward relationship. In this context, the supplier is also obligated to compensate us for all expenditures which we have incurred from or in connection with a recall action which we have carried out. If possible, we will notify the supplier about this ahead of time and give them the opportunity to provide an explanation. Other statutory claims remain unaffected.
7.2 The supplier will insure itself with the necessary coverage against risks from product liability and, on request, submit a copy of the insurance policy and/or insurance confirmation to ISMET for review.
7.3 The supplier will identify the delivery items so that they are permanently recognisable as their products, unless this is regulated differently in the individual contact.
7.4 The supplier ensures by marking the products or, if this is impossible or inexpedient, by other suitable measures, that they can immediately identify which additional products could be affected after the appearance of an error in production. The supplier will notify us about their marking systems or other measures so that we can take our own findings in the necessary scope.
8. Data privacy
In the scope of the contractual implementation, we also process personal data of our contractual partners and their employees (e.g. contact information, other personal data for contractual implementation). This data is attributed to the legal person of the supplier and processed strictly by us or companies in the Phoenix Mecano Group. All of our employees are obligated in writing to maintain confidentiality with respect to data in accordance with Article 5 of the German Federal Data Protection Act (BDSG) and shall process this data as stipulated by the German Federal Data Protection Act. The Supplier is likewise obligated to use personal data of our employees which has been disclosed in the scope of the contractual implementation strictly for purposes of executing the business transactions and not for other purposes.
9. Final provisions
9.1 The location of our registered office is the place of fulfilment for all rights and duties arising for everyone from our orders and (for registered traders) Villingen-Schwenningen or the nearest responsible court applies as the court of jurisdiction.
9.2 The relationship between ISMET and the supplier is subject exclusively to the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sales of Goods (CISG).
9.3 If individual provisions of these general terms and conditions of purchase are or become partly or wholly invalid, the validity of the remaining provisions remains unaffected. The invalid provision shall be replaced with a legally valid regulation which comes as close as possible to the intended purpose of the invalid provision.
9.4. German law applies for all orders. Application of the Hague Convention relating to a Uniform Law on the International Sale of Goods and the UN Convention on Contracts for the International Sales of Goods is excluded. If the contractual documents are in different languages, the German version is authoritative. With confirmation of the order of ismet GmbH or any activity of the supplier resulting in fulfilment of the assumed confirmation, the supplier declares their agreement to the conditions of purchase of ismet GmbH.
Version: Version 1/2018
With respect to the reference to data privacy within the framework of the General Terms and Conditions I assume that the reference in this manner to the data protection policy fulfils the duties to inform (“Our duties to inform pursuant to art. 13, 14 of the GDPR are fulfilled by our data protection policy, which is available at https://www.ismet.de/en/general-terms-and-conditions/”).