Deliveries to Laempe Mössner Sinto GmbH (hereafter: Laempe) from companies for the purposes of section 14 of the German Civil Code BGB (hereafter: the Supplier) shall be made in accordance with the following General Terms and Conditions of Purchase (hereafter: T&Cs), unless Laempe and the Supplier agree any divergent terms and conditions in the relevant quote and these are accepted by the other party (hereafter: the individual supply agreement):
The following Terms and Conditions of Purchase apply exclusively to orders placed and contracts entered into for purchasing or other procurement purposes. The Supplier's general terms and conditions of business or sale shall only apply to Laempe to the extent that Laempe has expressly agreed to them in writing. These T&Cs shall also apply exclusively in the event that Laempe accepts deliveries without reservation in the knowledge of the Supplier's contrary general terms and conditions of purchase. These T&Cs shall also apply to future orders for a business relationship established at any point with reference to these Terms and Conditions of Purchase, including in those cases where Laempe does not explicitly invoke the T&Cs prior to or at the time of entering into an individual supply agreement.
Orders or other declarations of an intent to enter into order and purchasing transactions shall only be legally binding if they have been placed or confirmed by Laempe's responsible Purchasing Department in writing or by way of a form.
3. Delivery item
Unless the order sets out further requirements such as designs, specifications, separate special regulations for the order, etc. then the delivery items supplied must be of a quality and design that is standard for the trade and in compliance with any IEC, EN, DIN, VDE, VDI, EU Machinery Directive or equivalent professional association standards and regulations that are in place. Upon the date of delivery the delivery items must meet the terms and conditions of use communicated by Laempe and comply with the statutory provisions applicable at the place of usage.
4. Terms and conditions of delivery and delivery deadlines
(1) The agreed delivery deadlines and delivery periods shall be binding.
(2) Following a written request from Laempe the goods must be delivered to a different place of fulfilment to the one that was originally agreed. The Supplier shall be entitled to increased consideration corresponding with the cost of the additional expenditure in this case.
(3) Receipt of the goods and of the dispatch documents along with the required documentation at the delivery address stated in the order or designated subsequently by Laempe shall be the crucial factors for determining compliance with the delivery deadline or delivery period.
(4) The statutory provisions shall apply in the event that the Supplier is in default. If the Supplier is in default with the delivery then for each working day of the default (Mon-Sat, not including public holidays) it must pay a contractual penalty of 0.2% of the net order value of the performance agreed up to a maximum of 5%, unless the Supplier is not responsible for the default in accordance with the statutory provisions. The Supplier must inform Laempe without delay in writing of the reasons and the expected duration of the delay upon recognising that the delivery deadlines will not be met. If it does not provide this notification then it may not invoke the fact that it is not responsible for the default.
(5) If the agreed delivery deadlines are not met then the Supplier must compensate Laempe for the damage or loss suffered through the delay within the scope of the statutory provisions. Laempe shall be entitled to withdraw from the contract in the event that a deadline is not met on a repeated basis.
(6) Assertion of the statutory claims by Laempe for default of performance or delayed performance shall remain unaffected by the contractual penalty. The contractual penalty shall be offset against the damage or loss suffered through the default.
(7) In the event that the delivery deadline is not met on account of force majeure or industrial disputes with no associated culpability, Laempe may either extend the order execution period to a later point in time, without the Supplier being entitled to any claims from this, or withdraw from the contract in whole or in part following the expiry of a reasonable period without any result.
(8) In the event that Laempe is prevented from accepting the delivery items at the agreed place of fulfilment or the amended place of fulfilment in accordance with section 4 (2) on account of force majeure or the conduct of a vicarious agent appointed by Laempe, this shall not represent default of acceptance on the part of Laempe and claims shall be excluded from the Supplier for the consideration and/or compensation, unless the vicarious agent has acted with gross negligence or wilful intent. Force majeure shall be applicable to all circumstances which could not be foreseen or avoided or if the means to do so would have been unreasonable, and shall include in particular natural disasters, civil unrest, industrial disputes/strikes and lawful lockouts. The Supplier must store the delivery items properly at its own expense and risk for the duration of the disruption/obstruction. Alternatively Laempe shall be entitled to designate a different receipt point for the delivery to the Supplier where the delivery must then be made at the Supplier's expense.
(9) The circumstances which come under the previous sub-section (“Force majeure”) shall also include official measures and orders which represent an obstacle to accepting the delivery of the goods.
(1) Goods will be dispatched free of freight charges for Laem-pe to the receipt point designated by Laempe.
(2) The dispatch method will be determined by Laempe. In the event that Laempe is responsible for the costs of the dispatch and there is no instruction provided regarding the dispatch method, then the delivery must be conveyed using the most cost-effective route with due regard to the urgency of the case.
(3) Three copies of the notices of dispatch must be submitted for each receipt point immediately following dispatch of the individual deliveries. The shipments must be accompanied by specified packing slips. The Laempe order no. and material no. must be provided in the dispatch documents. Any additional costs incurred through the dispatch documents or through incomplete dispatch documents or such documents with erroneous information shall be borne by the Supplier. In these instances Laempe shall also be entitled to refuse to take receipt of the delivery at the Supplier's expense.
(1) The Supplier shall be liable for providing suitable packaging which is appropriate for the delivery items.
(2) If a separate payment was expressly agreed for the packaging then Laempe shall be entitled to return the packaging materials used for the shipment to the Supplier's address subject to a reverse charge of 2/3 of the value of the packaging. In all other cases the packaging will be returned by Laempe without prepayment to the Supplier or will be taken back by the latter free of charge at the Supplier's request or following a demand from Laempe.
Any risk shall only be transferred to Laempe once the goods have been delivered and accepted at Laempe's side or at the agreed place of fulfilment. The Supplier shall bear all risk up until this point in time.
8. Production testing, final inspections, weight
(1) During production and prior to delivery, Laempe reserves the right to have the quality of the material used, the accuracy of the dimensions and quantities and any other quality of the parts produced along with compliance with the other regulations in the order verified by Laempe and/or by a third party appointed by Laempe at the Supplier's plant.
(2) Readiness for the final inspection must be communicated to Laempe or the third party in writing no later than 14 days in advance.
(3) The Supplier shall be responsible for the costs of production testing and final inspections, with the exception of the costs for the staff deployed by Laempe. If Laempe has agreed to have the final inspection of the completed delivery item carried out by a third party, then the Supplier must arrange for the final inspection by the third party for Laempe free of charge and communicate the result of the inspection to Laempe without delay, and no later than upon provision of the dispatch documents.
(4) The production tests and final inspection shall not release the Supplier from its fulfilment and warranty obligations in accordance with sections 11 et seq.
(5) The weights upon receipt as ascertained by the Laempe weight checkers on Laempe's own plant scales shall be the applicable weight determined. In the event that the goods cannot be weighed at Laempe's side, then the official railway weights established on the consignment note or in the event of a delivery by lorry the weights ascertained by public scales shall apply.
(6) The Supplier may carry out a review of the weight determined within a reasonable period if there are justified doubts regarding the weighing results. The Supplier must provide evidence of the weight upon delivery in the event that any other weighing of the delivery items is not possible.
9. Safety requirements and documentation
Upon acceptance of the order the Supplier undertakes to observe the following provisions and/or requirements:
- the EU Directive(s) applicable to the product in terms of CE marking and national implementation of this as applicable
- any harmonised European C-standard which may be in place for the product must be complied with. Any deviations from this shall require a separate individual agreement.
- If the EC type examination procedure is required for the product then an examination certificate must also be provided.
- If there are no harmonised European standards then the Supplier undertakes to observe any other applicable international or national standards or other technical specifications / regulations. The obligations include inter alia:
- Carrying out the CE conformity assessment procedure in accordance with the applicable EU Directives and national implementation of these as applicable.
- CE-marking (with the exception e.g. of incomplete machinery)
- Provision of the EU Declaration of Conformity or extended declaration of incorporation and assembly instructions (for incomplete machinery)
- Provision of operating instructions in German both in hard-copy format and in digital form in all standard formats. Provision of technical documentation in accordance with the applicable regulations, including the risk assessment.
- Evidence of metrological tests for the equipment included within the scope of supply.
10. Provisions supplied and retention of title
(1) The Supplier shall be liable for any loss or damage to the items provided. Laempe must be notified without delay of any legal or actual deterioration of these items.
(2) The materials provided by Laempe will be processed and handled on Laempe's behalf and shall remain the property of Laempe at each processing and handling stage. In the event that the items are processed with other items which do not belong to Laempe then Laempe shall be entitled to co-ownership in the new item produced at the ratio of the order value to the value of all items used in the production and the expenditure made by the Supplier for processing purposes. The Supplier shall also hold the items in safe custody for Laempe free of charge to this extent.
(3) In the event that Laempe's title to the items provided is lost for any reason whatsoever as a result of mixing or commingling, Laempe shall be entitled to a corresponding monetary claim for compensation against the Supplier in place of the lost title.
11. Notifications of defects
(1) Laempe undertakes to subject the delivery item or, in the event that multiple items are delivered, a sample thereof to a visual inspection for identifiable defects within three working days following receipt of the delivery item.
(2) Notifications of defects for the purposes of section 377 of the German Commercial Code (HGB) shall be considered to have been provided on time in the case of defects identifiable externally if they have been sent to the Supplier within three working days calculated from the date that the defect was discovered. Timely provision of the notification of defects shall not depend upon the point in time that the notification of defects is received by the Supplier.
(3) In terms of a concealed defect the notification of defect shall be considered to have been provided on time if it has been sent to the Supplier within three days after being discovered by Laempe or communicated by its customer. Timely provision of the notification of defects shall not depend upon the point in time that the notification of defects is received by the Supplier. Defects which cannot be detected by taking random samples shall be considered to be concealed defects.
(1) The goods delivered must feature the characteristics promised under the contract and must be suitable for standard usage or for the usage which is stipulated in the contract.
(2) Laempe's rights in the event of defective delivery or performance shall be determined in accordance with the statutory provisions. In the event of a defective delivery the Supplier shall at Laempe's option rectify the defect free of charge, deliver a new item free from defects or grant a discount in accordance with the statutory regulations on the reduction. The right to compensation, in particular to compensation in lieu of performance, remains expressly reserved.
(3) In urgent cases Laempe shall be entitled at the Supplier's expense and following consultation with the Supplier to rectify the defects itself or to have these rectified by a third party or to procure a replacement elsewhere and to demand compensation for the expenditure required for this.
(4) Without prejudice to this right, Laempe shall be entitled at the Supplier's expense to rectify the defects itself or to have these rectified by a third party or to procure a replacement elsewhere and to demand compensation for the expenditure required for this in the event that Laempe has defined a reasonable period for supplementary performance for the Supplier without success or the Supplier is otherwise in default in fulfilling its warranty obligations.
(5) Laempe shall be entitled in exceptional cases to rectify a defect or the defective goods itself at the Supplier's expense or to have these rectified by a third party without requiring a reasonable period defined for the Supplier to expire unsuccessfully and without consulting with the Supplier if the defect presents a tangible risk to life, limb or health or legal rights protected in accordance with section 823 BGB, and waiting for the Supplier to repair the goods or take them back is unreasonable on account of this risk. Wherever possible the Supplier must be notified of the risk and the imminent repair in order to provide it with an option of rectifying the defect or the goods and the associated risk situation without delay.
(6) The Supplier shall be liable for deliveries of replacements and for repair work to the same extent as is the case for the original delivery item, i.e. including for transportation, carriage and labour costs without limitation. The warranty period for replacement deliveries shall begin on the date that the replacement delivery is received at the earliest. The Supplier shall be under an obligation to reimburse reasonable costs for any recall action based on the Product Liability Act. Notification will be provided to the Supplier by Laempe for an opinion as soon as possible in advance.
13. Warranty and limitation periods
(1) The limitation period for material defects and defects of title shall be three years. In all other respects the statutory provisions shall apply.
(2) The limitation period shall begin again in the event of supplementary performance in accordance with section 439 BGB provided that a new item has been delivered; for a repair this shall apply only to the extent that this relates to the repaired defect itself or its consequences.
14. Third-party property rights
(1) The Supplier warrants that no third-party rights are infringed through the delivery or use of the goods delivered, in particular third-party property rights such as patents, trademarks or registered designs.
(2) The Supplier also guarantees that no third-party rights are infringed in connection with its delivery which restrict or exclude usage of the delivery item.
(3) If claims are asserted against Laempe or its customers by a third party for infringement of property rights associated with a delivery from the Supplier, then in addition to the claims arising from breach of warranty, the Supplier shall be under an obligation to indemnify Laempe and its customers against these claims following a first written request. The Supplier's indemnification obligation relates to all expenditure necessarily incurred by Laempe from or in connection with the third-party claim. Expenditure which has already been incurred must be compensated by the Supplier.
15. Prices, invoices and offsetting
(1) Prices are fixed prices subject to the relevant applicable statutory VAT and they cannot be amended. Price increases by the Supplier must be expressly acknowledged by Laempe in writing. Unless otherwise agreed the prices shall be considered to be free to the point of delivery, or free to the recipient station in the case of bulk goods.
(2) All prices shall include packaging unless expressly agreed otherwise in writing. The price for packaging must be stated separately on the invoices.
(3) Invoices should not be included with the deliveries, but submitted in duplicate immediately following the delivery and separately for each order. The invoice must include the order number, the material number for the delivery item and Laempe's call-off number if available. Transportation and packaging services as well as VAT must be stated separately.
(4) Unless otherwise agreed, payment will be made on the 15th of the month following the delivery with a 3% discount or 60 days net. Laempe reserves the right to determine the payment method.
(5) The Supplier's claims against Laempe arising from its orders may not be assigned to third parties either in whole or in part without Laempe's express written consent.
(6) In the case of advance assignments within the scope of a retention of title of the Supplier's own upstream suppliers the consent is hereby provided with the proviso that offsetting is also permitted with the notice of the assignment of the counter-claims acquired.
(7) The Supplier shall only be entitled to offset or to assert a right of retention in relation to undisputed claims or those that have been determined in law.
16. Product liability
(1) The Supplier shall be liable for product faults in accordance with the statutory provisions.
(2) The Supplier shall also be under an obligation within the scope of the above liability to reimburse any expenditure in accordance with sections 683 and 670 BGB as well as in accordance with sections 830, 840 and 426 BGB which arise from or in association with a recall action implemented by Laempe on account of defects in the product delivered by the Supplier, provided that this could result in a risk to life or limb or to significant real values. Provided that this is possible and reasonable, Laempe will notify the Supplier without delay of the content and scope of the recall measures to be implemented and provide it with an opportunity to give its opinion.
(3) The Supplier undertakes to maintain product and public liability insurance at its own expense with lump-sum coverage of EUR 10 million per personal injury/material damage/financial loss event until the relevant expiry date of the limitation on defects from the delivery. Any claims for compensation beyond this shall remain unaffected by this.
17. Assignment of documentation
(1) Any designs, models, samples or other documentation provided to the Supplier or produced by it in accordance with information from Laempe shall remain the property of Laempe and may only be used to process the quote and to execute the delivery ordered, and may not be made accessible to third parties without Laempe's prior written consent.
(2) They must be returned to Laempe without delay at Laempe's request following conclusion of the query or without being requested following execution of the delivery ordered. The designs, descriptions, etc. associated with the order shall be binding on the Supplier, although it must review these for any inaccuracies and notify Laempe in writing without delay of any errors that it detects or suspects, otherwise it may no longer invoke these inaccuracies/errors at a later point in time.
(3) The Supplier shall remain solely responsible for designs, plans and calculations created by it, including in cases where they are approved by Laempe. Queries, orders and correspondence associated with these with Laempe may not be used for promotional purposes.
18. Place of fulfilment and jurisdiction
(1) The place of fulfilment for the delivery is the reception point designated by Laempe.
(2) The place of payment is Barleben.
(3) The place of jurisdiction for any disputes between the parties with a trader, legal entity under public law of special fund under public law is Magdeburg. This shall not apply to the Supplier's legal successors or insurers, unless these would have agreed to the agreement on jurisdiction. However, Laempe reserves the right to bring proceedings against the Supplier at its general statutory place of jurisdiction.
19. Miscellaneous provisions
(1) In the event that any provision in these Terms and Conditions of Purchase is or becomes invalid this will not affect the effective nature of the remaining provisions.
(2) German substantive law shall apply to all contractual and service relations between Laempe and the Supplier and their formation, implementation, termination or interpretation, to the exclusion of German international private law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not be applicable.
(3) The Supplier will observe the import and export regulations applicable to its services under its own responsibility. The Supplier will pay any customs fees, charges and other levies incurred for cross-border services. The Supplier will handle any statutory or official procedures associated with cross-border deliveries or services under its own responsibility unless expressly agreed otherwise.
(4) Supplier data will be saved by Laempe with due regard to the statutory regulations on data protection.