Standard Terms and Conditions of Purchase of the Martin Group

Transcription

1 Standard Terms and Conditions of Purchase of the Martin Group valid for: Martin Metallverarbeitung GmbH Am Hummelsberg 6, Ebersdorf / Kleingarnstadt und Martin Stanz- und Umformtechnik GmbH Im Grund 8, Parsberg A. T. Werkzeugbau Nürnberg GmbH Wetzendorfer Str. 211, Nürnberg 1. Scope and general terms These terms and conditions of purchase apply to business with entrepreneurs, legal entities under public law and public funds. Supply contracts (see 2.) of the respective companies of the Martin Group will be subject solely to the terms and conditions below and any other individually negotiated agreements between the parties. The terms and conditions of the partner will not apply unless they have been expressly acknowledged in writing by the applicable Martin Group company. 2. Ordering procedure 2.1. Supply contracts (placing and accepting), call-off orders and any amendments thereto are valid only if they comply with written-form requirements. Call-off orders can also be communicated electronically We may revoke the order if the supplier does not accept the order within one week of receipt. Call-off orders will become binding after one week if the supplier does not object within one week of receipt We may demand modifications to the design and execution of the product to be supplied provided this can be reasonably expected of the supplier. Any effects this may have, particularly increases/decreases in costs or effects on delivery dates, will be settled appropriately and by mutual agreement. 3. Despatch and packaging Unless otherwise agreed, the supplier will package the goods properly and as usual in the trade, together with all necessary delivery and dispatch documents. 4. Prices, terms of payment and invoices 4.1. The invoice must state the full order number and article number. Invoices which have not been properly issued will be deemed not to have been issued (see also 4.8.) The price shown in the order is binding. Unless otherwise agreed in writing, all other costs such as packaging, despatch and insurance will be included in the price shown. Prices do not include value-added tax Unless otherwise agreed in writing we will pay the supplier's invoices as follows: less 3% discount for payment within 14 days or net on the 25th of the month following supply Payment will be made by transfer or cheque subject to examination of the invoice. Payment does not imply that we acknowledge the shipment as being free of defects Where we accept early delivery, payment will be due according to the agreed delivery date If the shipment is not as ordered, we may withhold payment on a pro rata basis related to the

2 value pending proper performance The supplier may not assign its claims against us or have them collected by third parties without our prior written consent, which we may not withhold unreasonably. Consent will be deemed to have been granted where reservation of title has been extended. If the supplier assigns its claim against us to a third party without our consent and contrary to the first sentence, such assignment is valid nonetheless. However, we have the right to make payment to the supplier or the third party, as we see fit, thereby discharging our obligation Any correspondence on a given order must take place with our purchasing department only and must indicate the order number and any other data shown. Confirmations, delivery notes, invoices and other correspondence must always state: - the full order number - the Martin material number - the supplier number Invoices from the supplier which do not meet the requirements in the previous paragraph will be deemed not issued. The invoice will not be deemed to have been issued until the supplier has remedied any such omissions and met all the requirements. We need only point out the need to remedy such omissions in invoices once. 5. Confidentiality 5.1. The parties will treat any commercial and technical information, documents and details which come to their knowledge through the business relationships as business secrets and will only make them accessible to people who need them for the purpose of fulfilling the contract This obligation begins as soon as information, documents and knowledge are received for the first time and ends 36 months after the business relationship has ended Drawings, models, templates, samples and the like may not be passed to unauthorised third parties or made accessible to them in any other way. Such items may only be reproduced to the extent required for business purposes and in compliance with copyright legislation These obligations must also be imposed on any subcontractors The parties may not use the business relationship for advertising purposes without the other party's prior written consent. 6. Delivery times and dates 6.1. Unless otherwise agreed, the place of performance will be the place to which the goods are to be delivered as stated in the order. The supplier bears the risk of loss and damage to the goods until we take receipt Agreed times or dates are binding. The delivery date or delivery time will be deemed to have been met if we receive the goods by/within the date/time stipulated. If delivery is not "free to our works" the supplier will make the goods available in good time making allowances for the time normally needed for loading and transport If the supplier realises before delivery is due that it will not be able to meet the agreed delivery date, it will notify us in writing without undue delay, stating the duration of and the reasons for the delay. The supplier will propose ways we can still be supplied with goods which comply or are compatible with the contract at competitive prices and if possible with unchanged specifications. The supplier will take whatever measures are necessary to prevent or minimise the consequences of delivery at its own cost. This will not affect any claims arising from late delivery The fact that we have taken receipt of the shipment does not constitute acknowledgement that it is free of defects We are under no obligation to take receipt of shipments before the agreed delivery date and reserve the right to return them at the supplier's cost or to store them at the supplier's cost and risk. Part shipments will only be accepted subject to express agreement.

3 7. Late delivery 7.1. The supplier will compensate us for any loss caused by late delivery. This does not apply to lost profit and losses arising from business interruption In the event of simple negligence compensation will be limited to additional freight costs, retrofitting costs and, where we have extended the deadline and the supplier has failed to meet that deadline or where the shipment is no longer of use to us, it will be limited to the additional cost of covering purchases If we take delivery of late shipments this will not be construed as a waiver of our rights to compensation If the supplier is late with a delivery date or an initial sample date, we may at our discretion charge a contractual penalty of 1.0 % of the order value but no more than 10 % of the order value for each week or part week of delay unless the supplier can prove that the actual loss is lower. This has no effect on any additional or other statutory rights. However a contractual penalty will be offset against any amounts payable under such rights. 8. Force majeure Force majeure, industrial action, unrest, official measures and other unforeseeable, unavoidable and serious occurrences release the parties from their duties to perform for the duration of the disruption and the extent of its effect. This also applies if the party affected is in default when such occurrences occur. Within reason, the parties will provide the necessary information without undue delay and adjust their obligations to the changed circumstances in good faith. 9. Quality and documentation 9.1. The supplier will ensure that the goods supplied comply with the acknowledged rules and procedures and state-of-the-art science and technology, safety requirements and the agreed technical data. The products supplied must also comply with applicable official requirements. The supplier may not modify the goods supplied without our prior written consent. For the initial sample test we refer the supplier to VDA document "Ensuring the quality of goods supplied supplier selection/production process and product release/quality in series manufacturing". Irrespective thereof, the supplier must constantly monitor the quality of the goods to be supplied. The parties will inform each other of potential quality improvements If we have not firmly agreed the nature and extent of tests, testing equipment and methods with the supplier, we are willing to discuss the tests with the supplier at the supplier's request within the scope of our knowledge, experience and possibilities in order to determine the required level of testing technology in each case. Further, we will inform the supplier on request of any applicable safety requirements Where the technical documents or a separate agreement stipulate special testing requirements, e.g. "D" or "TLD", the supplier will keep special records documenting when, how and by whom the goods to be supplied were tested in respect of the features to be documented and record the results of the required quality tests. Testing documents must be archived for fifteen years and made available to us on request. To the extent provided for by statute the supplier will impose the same obligations on its own suppliers. In this respect we refer the supplier to VDA document "Nachweisführung - Leitfaden zur Dokumentation und Archivierung von Qualitätsforderungen" (Furnishing evidence guidelines for documenting and archiving quality requirements) Where authorities which are responsible for vehicle safety, exhaust regulations, etc. require information on our production processes and test documents in order to verify compliance with certain requirements, the supplier will, on our request, grant such authorities the same rights on its premises and provide them with whatever support can be reasonable expected of it Along with its offer the supplier will also submit a safety data sheet pursuant to section 14 German Regulation on Hazardous Substances (Gefahrstoffverordnung), completed in full, and an applicable accident procedures sheet (transport) for any materials (substances and preparations) and items (such as goods, parts, technical equipment, uncleaned empty storage containers) which owing to their nature, properties or condition may present a hazard to human life and health, the environment and things and which require special treatment under applicable regulations on

4 packaging, transportation, storage, handling, and waste disposal. If there is any change in materials or the legal situation the supplier will provide us with updated data and information sheets. 10. Acceptance and reporting defects We will report any defects in the goods supplied to the supplier in writing without undue delay as soon as they have been ascertained within the proper course of business. In this respect, the supplier waives its right to invoke the defence that the defect was not reported in due time. 11. Liability for defects Unless otherwise agreed, supply of defective goods is subject to statutory provisions on liability for material defects. If the goods supplied have a defect pursuant to section 434 German Civil Code (Bürgerliches Gesetzbuch) such that they do not have a contractually agreed attribute, we may assert the rights set out in section 437 German Civil Code. If we demand subsequent performance and if the supplier cannot comply or does not comply without undue delay, in urgent cases we can remedy the defect ourselves at the supplier's cost or have this done by a third party without forfeiting our warranty rights; in order to maintain our production activities we also reserve the right to rework or segregate your defective goods ourselves or have this done by third parties, as we see fit. We will charge you for costs incurred by the complaint (segregation costs, scrap, our customer's complaint costs, machine downtime, extra costs for stricter incoming goods inspections, etc.) We will make the parts to be replaced available to the supplier on request without undue delay and at the supplier's cost Unless otherwise agreed in a specific case, the limitation period for claims for liability for defects is 24 months from when the assemblies or devices with the defective goods are first marketed, but no more than 30 months after they were supplied to us Claims for defects will not arise if the defect is attributable to a breach of operating, maintenance or installation instructions, inappropriate or improper use, faulty or negligent treatment and natural wear-and-tear or if we or third parties have tampered with the item supplied This will not affect our right to be compensated for consequential losses resulting from the defect or for costs arising from defective supply If goods supplied are defective, this section 11 will not affect our claims under the German Product Liability Act (Produkthaftungsgesetz), tort or agency without specific authorisation. Guarantees regarding specific attributes and durability must be expressly stated as such in writing. 12. Liability Unless stated otherwise elsewhere in these terms and conditions, the supplier is only liable to compensate a loss suffered directly or indirectly by us owing to the supply of defective goods, a breach of official safety requirements or other legal reasons attributable to the supplier as set out below In principle, the supplier only has a duty to render compensation if it caused the loss with intent or if it acted with gross negligence If claims are asserted against us owing to no-fault liability under legal provisions which cannot be waived as against third parties, the supplier will assume liability to us as if the supplier itself were directly liable. The principles of section 254 German Civil Code apply, with the necessary changes, to the settlement of loss between the supplier and ourselves. This will also apply where a claim is asserted directly against the supplier Liability is excluded where we have validly limited liability to our customer. In this connection we will endeavour to agree on liability limitations to an extent permitted by statute, including limitation in favour of the supplier We will not be entitled to claims to the extent that the loss is attributable to breaches of operating, maintenance or installation instructions, inappropriate or improper use, faulty or negligent treatment, and natural wear-and-tear or faulty repair which fall within our sphere of responsibility.

5 12.5. To the extent that the supplier has a legal obligation, it will be liable for measures which we take to avert losses (e.g. recall campaign) If we wish to assert a claim against the supplier pursuant to the above provisions, we will inform the supplier and consult with it fully and without undue delay. We will give the supplier an opportunity to examine the claim. The parties will discuss and agree on the measures to be taken, in particular during settlement negotiations The principles set out in section 7.1 are applicable, with the necessary modifications, if the supplier has no or insufficient insurance cover. 13. Property rights The supplier is liable for claims arising from property right infringements and property right applications (property rights) and copyright where the goods supplied are used as provided for in the contract The supplier will indemnify us and our customers from any claims arising from the use of such property rights This will not apply in as far as the supplier has manufactured the goods supplied in accordance with data, drawings, models or equivalent other descriptions provided by us and does not or, in respect of the products which it has developed, cannot be expected to know that this infringes property rights To the extent that the supplier is not liable under section 13.3 we will indemnify the supplier from all third-party claims The parties will notify each other without undue delay of any infringement risks which become apparent and alleged infringements and give each other an opportunity to combat such claims by mutual agreement The supplier will inform us on request what published and unpublished own and licensed property rights and property right applications are used in the goods supplied The liability limitation principles contained in section 7.1 will apply with the necessary modifications. 14. Use of our production resources and confidential data or documents Models, matrices, drawings, templates, samples, tools, other production resources and confidential data which we make available to the supplier or for which we pay in full may only be used for supplies to third parties with our prior written consent. Any such production resources, the above list not being exhaustive, or other items which we make available to the supplier and which are to remain our property must be marked accordingly. The supplier will treat them with care, have them serviced at its own cost and insured as necessary. The supplier will inform us without undue delay of any damage to the production resources. The supplier will use these production resources and items solely for executing the order and will not make them available to third parties without our prior written consent. If our sole title is transferred through combining, mixing or processing, we will acquire sole title in the newly created item because such combining, mixing or processing is carried out for us. The said items must be released to us on request at any time without undue delay. Copies may only be made with our express prior written consent Process descriptions, drawings, drafts, models, tools and the like which the supplier produces according to our data will become our property. Instead of handing them over to us the supplier will keep them safe on our behalf, during which time the supplier will insure the items produced against fire, theft, etc. at its own cost. The supplier will provide us on request with proof of such insurance Breaches will entitle us to compensation and, alternatively, to withdraw immediately from the contract.

6 15. Other provisions In determining the quantum of the compensation to be rendered by the supplier pursuant to sections 7, 11, 12 and 13, the supplier's economic circumstances, the type, scope and length of the business relationship, the anticipated loss, any contributory cause and/or fault on our part pursuant to section 254 German Civil Code and a particularly difficult installation scenario for the part supplied will be appropriately taken into account in the supplier's favour. In particular, any compensation rendered, costs and expenses to be borne by the supplier must be reasonably proportionate to the value of the part supplied Anyone working on our premises for the purpose of fulfilling the supplier's obligations is subject to our company rules and our instructions with respect to our applicable accident prevention, safety-at-work, environmental and other requirements. Hazardous substances may only be used on our premises after consultation with our specialist personnel. All hazardous substances must be properly marked If one partner stops payments or if an application is filed for insolvency proceedings on its assets or for out-of-court composition proceedings, the other partner has the right to withdraw from the contract in respect of the portion of the contract which has not yet been fulfilled Unless otherwise agreed by the contractual partners, this contract will be subject solely to the law of the Federal Republic of Germany excluding the provisions for the conflict of laws and the uniform United Nations Convention on Contracts for the International Sale of Goods The place of jurisdiction will be the claimant's domicile or another competent court If any provision of these terms and conditions and any other agreements should be or become invalid, this will not affect the validity of the rest of the contract. The parties will replace the invalid provision by a provision whose economic effect most closely reflects the intended effect of the invalid provision. Martin Metallverarbeitung GmbH Martin Stanz- und Umformtechnik GmbH A.T. Werkzeugbau Nürnberg GmbH Last amended 3/2015