General purchase terms & conditions
1. Application of these General Purchase Terms & Conditions
- The General Purchase Terms & Conditions of Fiberpreg GmbH apply to all transactions with companies and present and future contracts with suppliers. Additional duties taken over from suppliers of Fiberpreg GmbH will not affect the validity of these General Terms & Conditions of Purchase.
- The General Terms & Conditions of Purchase apply exclusively; Fiberpreg GmbH does not recognize statutory provisions or conditions which contradict or differ from the General Terms & Conditions of Purchase of Fiberpreg GmbH, even if Fiberpreg GmbH does not expressly object to them or if Fiberpreg GmbH unconditionally accepts or pays for services.
- Any limitation of the statutory rights of Fiberpreg GmbH or those set out in the General Terms & Conditions of Purchase of Fiberpreg GmbH, in particular any restriction or exclusion relating to the goods or the implementation of the contract, requires the express written confirmation of Fiberpreg GmbH in each case.
2. Conclusion of Contracts
- The supplier will confirm the orders of Fiberpreg GmbH with a written order confirmation. If the supplier’s order confirmation differs from Fiberpreg GmbH´s order or broadens or restricts it, the supplier will specifically highlight the changes. All amendments to the orders of Fiberpreg GmbH require the written confirmation of Fiberpreg GmbH in order to be valid.
- If the supplier makes an offer to Fiberpreg GmbH, this will be free of charge. Fiberpreg GmbH may submit a written confirmation of the order within the period granted by the supplier or if such period is not explicitly granted within 30 calendar days. Until the expiry of this period, the supplier’s offer is irrevocable. If the supplier receives the confirmation of Fiberpreg GmbH later, he will immediately advise Fiberpreg GmbH thereof. The actual receipt of the delivery, payment therefore or silence of Fiberpreg GmbH, will not permit the supplier to assume that a contract has been concluded.
- Correspondence must be carried on with the ordering department of Fiberpreg GmbH. Any amendment of the order of Fiberpreg or the concluded contract requires the written confirmation of that department in order to be valid.
- Delivery requests under an existing master agreement or quantity contract become binding if not rejected by the supplier within 2 working days of receipt.
- Following the conclusion of the contract, Fiberpreg GmbH shall have the right, at any time, to amend or to partially or completely terminate the contract by reimbursing the supplier for his reasonable outgoings, including any pro-rata share of profits, to change construction guidelines or the design of the goods.
3. Prices and Payment Conditions
- The agreed prices are fixed prices and include – plus the currently valid VAT – free delivery, which includes all ancillary costs, such as, packing, transport, unloading and insurance. If a price is expressly agreed as “ex works”, Fiberpreg GmbH will only accept the cheapest freight costs, insofar as Fiberpreg GmbH does not expressly prescribe the type of transport; in cases of doubt the supplier will bear all accrued costs, including loading and carriage, up to the handover to the forwarder.
- Payment to the supplier will be due, with 2% discount within 7 days, following complete delivery of the goods and receipt of the correct invoice, without the waiver of any further statutory rights.
- One copy of each invoice is to be sent to Fiberpreg GmbH – separately for each order – and must, in particular, contain the order number, article number of Fiberpreg, each particular item and supplier’s tax number. Copies must be marked as such. Invoices may only be due after their delivery.
- Payments by Fiberpreg do not signify any recognition of the invoice, freedom of defect or timely delivery, and are made, at our option, by bank transfer. Fees and charges are to be borne by the supplier.
- Fiberpreg GmbH is entitled to set-offs and liens to the extent permitted by law, also in cases of a cash only agreement.
- The supplier is obligated to deliver goods which comply in all respects with the contractually agreed quality and suitability, as well as the product law provisions ruling from time to time and latest scientific and technological developments. Insofar as demanded by Fiberpreg GmbH, a work’s test certificate (CoC) must be submitted to Fiberpreg GmbH with the goods, free of charge. The goods must be securely packed for shipping.
- The supplier is obligated to notify Fiberpreg GmbH in writing if his goods are not unrestrictedly suitable for the use foreseen in the contract, if special safety measures must be observed in handling the goods, or if there could be dangers to health, safety or the environment.
- Partial, over- or under deliveries are only permissible with prior written consent of Fiberpreg GmbH. As regards quantities, weights and dimensions, those ascertained by Fiberpreg GmbH are binding.
- Deliveries are at the supplier‘s risk and cost (free delivery).
- Every delivery must be accompanied by a packing slip and delivery note, with details of the order of Fiberpreg GmbH and article numbers and the unit quantities.
- Where appropriate, the goods must be accompanied by an EU Declaration of Conformity and an EU Manufacturer‘s Declaration. Proofs of origin (e.g. Certificate of Origin, Supplier‘s declaration per EU Ordinance No. 1207/2001), containing all necessary details will be made available to Fiberpreg GmbH by the supplier and duly signed.
- Upon delivery, the goods will become unfettered property of Fiberpreg GmbH. If a lien in favor of the supplier is agreed, this has the effect of a simple lien; regardless of the lien however, Fiberpreg GmbH has the right, at any time and without restriction, to use, process and/or sell the goods, as well as to transfer their ownership to a third party, even if this means the destruction of the lien.
5. Delivery Dates and Delivery Delays
- The Agreed delivery dates and deadlines are binding. Precise compliance is a material obligation of the supplier. Crucial for the compliance with the agreed delivery dates and deadlines is the receipt of the goods by Fiberpreg GmbH. If “free delivery” is not agreed, the supplier must take the normal time required for loading and shipping into account. Delivery earlier than agreed is only permissible with prior written consent from Fiberpreg GmbH.
- The supplier must notify Fiberpreg GmbH, in writing, of delivery delays, in particular arising from production problems or availability of primary materials, immediately after they become apparent, providing details of the reasons and the anticipated length of the delay; the claims of Fiberpreg GmbH arising from the delivery delay will remain unaffected thereby.
- In cases of delivery delays, Fiberpreg GmbH will be entitled to the statutory rights and claims. Fiberpreg GmbH will have the right, in particular, after the fruitless expiry of a reasonable period of grace, to demand compensation instead of performance and to withdraw from the contract. If Fiberpreg GmbH demands compensation, the supplier will have the right to prove that he is not responsible for the delayed delivery.
- The supplier only has a right of a lien if a counterclaim is undisputed and due, legally enforceable or his claim stems from the same contractual relationship as the claim of Fiberpreg GmbH and is reasonably proportional in relation to the claim of Fiberpreg GmbH.
The supplier is obligated to maintain strict confidentiality with regard to all drawings, models, calculations and other documentation and information received from Fiberpreg GmbH, whether in physical or electronic form. They may only be disclosed to third parties with the express consent of Fiberpreg GmbH. The confidentiality obligation will continue after the ending of the supply relationship or the contract; it ceases if and to the extent that the drawings, models, calculations and other production knowledge contained in the documentation, as well as information passed on, becomes generally known.
7. Quality Assurance
- The supplier will independently check the drawings, calculations, specifications and other requirements of Fiberpreg GmbH within the framework of his general and special professional expertise for any errors or contradictions. If appropriate, the supplier will immediately notify Fiberpreg GmbH of his concerns, also with regard to suitability, so that a joint investigation can then be undertaken.
- The supplier must maintain a quality security system which complies with the latest relevant supply industry standards. The supplier will implement the quality security system measures, including the documentation, independently. He must make this documentation available to Fiberpreg GmbH upon demand. The documentation must be kept by the supplier in accordance with statutory and other legal requirements, but for a minimum of 10 years.
- Prior to delivery, the supplier will undertake a careful monitoring of outgoing goods. Goods which do not pass may not be delivered. Fiberpreg GmbH will only inspect the goods after delivery as regards type (identity check), quantity, as well as for any transport damage and any obvious defects; Fiberpreg GmbH is not obliged to undertake any further inspection. To that extent, the supplier waives his right to object based on breach of the obligation to inspect under § 377 of the German Commercial Code (HGB).
8. Defects in Goods and Title
- In the case of a defect in the goods or their title, Fiberpreg GmbH shall be entitled, without limitation, to exercise the legal rights relating to defects, and to assert claims arising therefrom. Fiberpreg GmbH shall, in any event, have the right to demand, from the supplier, at the option of Fiberpreg GmbH, immediate cure of the defect or delivery of a defect-free replacement. All costs and expenses which may accrue to Fiberpreg GmbH in connection with the non-fulfilment are to be borne by the supplier. The rights to compensation of Fiberpreg GmbH, in particular to damages instead of performance remain unaffected.
- Fiberpreg GmbH shall have the right, at the supplier’s cost, and regardless of his responsibility, to undertake the cure itself if there is danger in the delay or there is a particular need for speed. In such a case, Fiberpreg GmbH will insofar as reasonable and possible inform the supplier about the defect in advance.
- The time limit for claims regarding defects is 36 months after delivery of the goods, insofar as there is no longer statutory limitation period. The cure of a defect with respect to new or repaired goods is subject to a new limitation period of 24 months; if the remainder of the originally applicable limitation period is longer, that will apply.
- A complaint by Fiberpreg GmbH regarding a defect within the limitation period suspends the limitation period between Fiberpreg GmbH and the supplier until agreement is reached on the cure of the defect and any consequences; however, the suspension will, in any event, end six months after the final rejection of the complaint with regard to the defect by the supplier. The limitation period regarding a defect begins no earlier than 3 months after the end of the suspension, but under no circumstances before the end of the limitation period referred to in sec. 8.3 above.
- If customers further down the production chain assert their legal claims against Fiberpreg GmbH for defective delivery, and the defective delivery includes goods from the supplier, Fiberpreg GmbH shall have the right of recourse under Paragraphs 478 and 479 BGB (German Civil Code) against the supplier, without the special requirements dealing with the sale of consumer goods needing to be fulfilled. The recourse applies mutatis mutandis for payments of compensation by Fiberpreg GmbH to a customer.
9. Withdrawal, Liability and Indemnity
- Regardless of other withdrawal rights, Fiberpreg GmbH shall have the right to withdraw from the contract, wholly or partially, without compensation (I) if an application is made for the opening of insolvency proceedings against the supplier’s assets; or (II) the supplier, without justification, fails to fulfil material obligations towards Fiberpreg GmbH; or (III) if unforeseen circumstances arise, for which Fiberpreg GmbH is not responsible, which materially alter the basis for the contract concluded with the supplier.
- The supplier will be liable to Fiberpreg GmbH, in particular for compensation, without limitation, in accordance with the statutory provisions.
- Notwithstanding any other claims Fiberpreg GmbH may have, the supplier will indemnify Fiberpreg GmbH, at its first request, against all third party compensation claims, in particular those with respect to Product and Producer Liability, insofar as these have their origins in the supplier‘s domain and organizational area, and which the third party, for that reason, could assert, not only against Fiberpreg GmbH, but also against the supplier. The indemnity also includes, in particular, the defense against unjustified claims, and the reimbursement of expenses and costs of Fiberpreg GmbH in connection with recalls. Fiberpreg GmbH will - insofar as possible and reasonable – give the supplier prior notice of recall measures.
10. Property Rights
- The supplier warrants that no third-party rights will be breached in connection with his delivery, and that there are no third party proprietary or intellectual property rights attached to the goods which could restrict or preclude the use by Fiberpreg GmbH.
- If a third party asserts a claim against Fiberpreg GmbH for breach of a property right, then the supplier is obligated to ensure the usability of the products to be produced by Fiberpreg GmbH for the customer of Fiberpreg GmbH, if appropriate, in such a way that, at the supplier’s option, the parts in breach of the intellectual property rights will be altered, or replaced by property rights-free parts. The supplier will be liable for all damage, in particular against customers‘ or third parties‘ claims for compensation which may accrue as a result of the breach of property rights by the intended use of the goods.
- The supplier will indemnify Fiberpreg GmbH, upon first request, against any claims by third parties due to a breach of property rights, or against which Fiberpreg GmbH must indemnify its customers. The supplier will not have the right to conclude any settlement/agreement with such third party without the consent of Fiberpreg GmbH. The supplier’s indemnity obligation covers all necessary costs incurred arising from, or in connection with, the recourse by a third party.
- The limitation period is 10 years from the assertion of each claim.
- Fiberpreg GmbH reserves all ownership, user, registered design, patent, trademark, copyright, personality and other related rights, in particular to drawings, samples, images and other documentation, designs, design suggestions, templates, worksheets, molds, copyrights, know-how and calculations, as well as software, made available by Fiberpreg GmbH in physical or electronic form. The reserved rights referred to in the first sentence of this paragraph include, in particular, all documents from Fiberpreg GmbH which are marked explicitly or implicitly as “confidential”.
- All physical or electronic drawings, images, samples, etc., must be returned to Fiberpreg GmbH immediately after the ending of the supply relationship or the contract. In that respect, a lien is excluded.
11. Contractual Penalty
- In the event of a culpable failure to meet the agreed delivery date, the supplier will pay Fiberpreg GmbH a contractual penalty of 0.5% of the net price of the delivery for each week or part of a week of failure to meet the agreed delivery date week, but with a maximum of 5% of the net price of the delivery, for each late (partial) delivery.
- Fiberpreg GmbH may also assert its claim to the contractual penalty referred to in sec. 11.1 above if the date of delivery remains unclarified.
- Any forfeited contractual penalties as per sec. 11.1 above may be demanded as the minimum amount of damage owed resulting from the same breach of duty. The assertion of further damages claims is not debarred. However, Fiberpreg GmbH shall offset any contractual penalties paid.
12. General Contractual Principles
- The place of performance and fulfilment for all deliveries and payments is Neu-Ulm.
- In the event of the invalidity of individual contractual provisions, the remaining contractual provisions will remain unaffected. The invalid provision is to be replaced by a legal regulation which comes closest to fulfilling the commercial sense and purpose of the invalid provision. The same will apply to lacunae in the regulations.
- Compliance with the written form will require neither a personal nor an electronic signature. Fax or email messages, as also other text forms, will also comply with the written form.
- If the contracting parties are business people, then Neu-Ulm is the exclusive jurisdiction for all disputes; however, Fiberpreg GmbH shall have the right to sue the supplier in his general place of jurisdiction.
- The law of the Federal Republic of Germany shall apply exclusively to all legal relationships between Fiberpreg GmbH and the supplier, but excluding its conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods (CISG) of 1 April, 1980.