General Terms and Conditions of Purchase
§ 1 Parties, scope
1. The parties to the following general terms and conditions of purchase are Memminger-Iro GmbH, Jakob-Mutz-Straße 7, Dornstetten (hereinafter referred to as MEMMINGER-IRO) and the supplier (hereinafter referred to as the supplier).
2. These general terms and conditions of purchase apply to all business dealings between the parties. Any terms and conditions of the supplier which conflict with, are in addition to or deviate from these general terms and conditions of purchase will not be part of the contract. These general terms and conditions of purchase will also apply if MEMMINGER-IRO accepts a delivery from the supplier without reservation in full knowledge of the terms and conditions of the supplier which conflict with, are in addition to or deviate from these general terms and conditions of purchase.
3. Deviating provisions are not accepted. Provisions other than those included here will only be effective with the express agreement of an authorised representative of the management of MEMMINGER-IRO and the respective supplier. All rights of MEMMINGER-IRO under statutory regulations or any other agreements in addition to these general terms and conditions of purchase remain unaffected.
§ 2 Conclusion, amendments and execution of the contract
1. An order will be binding if it has been placed by MEMMINGER-IRO in writing, or, if an order has been placed verbally, in particular by telephone or using any other means of telecommunication, it has been duly confirmed in writing by the supplier. MEMMINGER-IRO will not be charged for the offers, designs, samples and models preceding the conclusion of the contract.
2. The supplier has to confirm the order in writing no later than one week after receipt of the order. The price and the delivery time have to be expressly stated in the order confirmation. Any deviations from this will only be deemed to have been agreed if they have been confirmed in writing by MEMMINGER-IRO.
3. The order confirmation, despatch notes, consignment notes, delivery notes, invoices and other documents of the supplier have to include the order details, in particular the order number, order date, supplier number and the respective item numbers/names.
4. If, in the execution of a contract, deviations from the originally agreed specification are necessary or appropriate, the supplier will have to inform MEMMINGER-IRO of this immediately in writing. MEMMINGER-IRO will in this case inform the supplier whether and what changes are to be made to the original order. If the originally agreed price is changed by these deviations, the parties will negotiate an appropriate adjustment. If an agreement is not reached within two months of the written request to negotiate, MEMMINGER-IRO will have the right to terminate the contract without notice.
5. The requirement of the written form will also be satisfied by fax, data telecommunication or e-mail.
§ 3 Prices / invoices / payments
1. The price stated in the order is binding and includes free delivery. Other types of delivery require express agreement in writing. If otherwise is agreed, the supplier has to provide the goods in time taking into account the time for loading and shipment to be agreed with the carrier.
2. The agreed price includes in particular the costs of packaging, shipping and transport to the delivery address specified by MEMMINGER-IRO as well as customs duties and other public charges. Statutory VAT is included in the price, unless it is expressly stated that the price is a net price. A VAT-free delivery is only possible if the supplier provides the necessary documents.
3. For deliveries within the European Union, the supplier has to advise of its VAT number in writing without being asked, provide proof of its entrepreneurial status and assist with the necessary export documents. The type of packaging, the means of transport, the transport route and the transport insurance can be specified by MEMMINGER-IRO.
4. The supplier will send to MEMMINGER-IRO an original invoice. The invoice has to show the order number, order date and supplier number. The invoice must not be attached to the deliveries, but is to be sent separately to MEMMINGER-IRO by e-mail. Invoices which do not meet these requirements will be deemed to have not been received on the grounds of being impossible to process.
5. Payment will be made after acceptance of the products and receipt of the invoice within 14 days with the deduction of a 3% early-payment discount or within 60 days net. In the case of early delivery, the time allowed for payment will commence at the earliest when the time for delivery ends or on the agreed delivery date. If the supplier has to provide test reports, quality documents or other documents under its contractual obligations, the time allowed for payment will only be triggered by acceptance of the products or services if the required documents are delivered at the time of acceptance. Payment will be made conditionally subject to an invoice audit. Payment can be made by cheque or transfer.
6. In the case of a defective delivery, MEMMINGER-IRO will have the right, notwithstanding further statutory rights, to withhold the payment until due performance without the loss of discounts, early-payment discounts or similar price reductions. The time allowed for payment under § 3 No. 5 will commence in this case upon complete rectification of the defects.
§ 4 Export control and declarations / CE declaration
1. The supplier has to inform MEMMINGER-IRO in its offers of the following:
1.1. Export licence requirements of the products
1.2. All applicable export list numbers, including the Export Control Classification Number according to the U.S. Commerce Control List (ECCN)
1.3. Commercial place of origin of the goods
1.4. Statistical goods number (HS code)
1.5. A contact in its company for deal with any queries
2. The supplier has to inform MEMMINGER – IRO of any authorisation requirements or restrictions for (re-)exports of its goods under German, European or US export and customs regulations as well as the export and customs regulations of the country of origin of its goods in its business documents, and for goods subject to authorisation requirements, send the information listed under § 4 No. 1 in good time before the first delivery to MEMMINGER - IRO.
3. If the products are subject to an export control or other restrictions or a necessary export authorisation is not granted, MEMMINGER-IRO will have the right, notwithstanding any other rights, to withdraw from the contract.
4. The supplier has to declare the substances contained in the products. This will apply in particular if the substances are listed in one of the following regulations as amended:
4.1. Packaging Regulation (Verpackungsverordnung) or from 01.01.2019 the German act concerning the placement into circulation, taking back and high-quality recycling of packaging (Gesetz über das Inverkehrbringen, die Rücknahme und die hochwertige Verwertung von Verpackungen), (Packaging Act/Verpackungsgesetz) as amended, in particular information concerning the respective concentration of heavy metals is to be provided,
4.2. Regulation (EC) No. 1907/2006 (REACH Regulation),
4.3. Battery Act (Batteriegesetz), in particular § 3 BattG (Ban on placement in circulation),
4.4. Electrical and Electronic Equipment Act (Elektro- und Elektronikgerätegesetz),
4.5. POP Regulation, Regulation (EC) No. 850/2004.
5. The supplier guarantees that the products are tested in accordance with EC directives and EC safety standards as amended and are only delivered in tested design. The supplier has to hand over the declaration of conformity (CE declaration) for products signed with legally-binding effect to MEMMINGER-IRO.
§ 5 Packaging, shipment, delivery and acquisition of ownership
1. The supplier has to meet the respective requirements for the shipment of the products, in particular the delivery requirements specified by MEMMINGER-IRO as amended. The delivery has to be made in packaging appropriate for the type of products. The products being delivered are to be packed in a manner that prevents transport damage. Only environmentally-friendly and recyclable materials may be used.
2. The supplier has to label the packaging clearly with the contents of the delivery, the item numbers and item names.
3. MEMMINGER-IRO is to be informed as soon as the item has been shipped.
4. Deliveries can only be made on working days in the business hours specified by MEMMINGER-IRO.
5. The supplier has to comply with the Hazardous Substances Regulation (Gefahrstoffverordnung), and in particular pack and label the products concerned in accordance with the regulation and expressly advise of the hazardous substances in the delivery note.
6. Ownership of the products will be transferred immediately upon handover free from encumbrances to MEMMINGER-IRO. The supplier guarantees that it is authorised to sell and transfer ownership and that the ownership will be transferred free of the rights of third parties.
§ 6 Withdrawal and termination rights
1. In addition to the statutory rights of termination, we will have the right to withdraw from the contract if a significant deterioration in the asset position of the supplier occurs or threatens to occur and as a result its ability to meet a delivery obligation towards us is put at risk.
2. We will also have the right to withdraw from the contract if
2.1. the supplier is insolvent,
2.2. the supplier stops its payments,
2.3. the supplier is faced with imminent insolvency pursuant to § 18 of the German Insolvency Code (Insolvenzordnung) or imminent over-indebtedness
2.4. an application is made by the supplier to open insolvency proceedings for the supplier’s assets or business or similar proceedings for the settlement of debts or
2.5. if an application to open insolvency proceedings for the supplier’s assets is rejected due to a lack of assets.
3. If the supplier has provided partial performance, MEMMINGER – IRO will have the right to withdraw from the whole contract if there is no longer any interest in the partial performance.
4. If MEMMINGER - IRO withdraws from or terminates the contract on the basis of the above contractual withdrawal and termination rights, the supplier will have to make good any losses incurred as a result, unless it is not responsible for the existence of these withdrawal or termination rights.
5. Statutory rights and claims will not be limited by the provision in this section.
§ 7 Delivery time and default
1. The times allowed for delivery and delivery dates specified in the order and only agreed in other ways are binding. In order for the deadline to be met, the ordered goods have to be received at the agreed delivery address.
2. As soon as the supplier is realises that the delivery time cannot be met, it has to inform MEMMINGER-IRO immediately in writing stating the reasons for the likely delay.
3. If the supplier is in default, MEMMINGER-IRO will have the right to charge a contract penalty of 0.5 % of the net order value for each week each started during the delay, up to 5 % of the net order value, unless the supplier is not responsible for the delay in delivery. MEMMINGER-IRO has to claim the contract penalty at the latest at the time of the final payment. The contract penalty does not cover cases of force majeure. All other claims remain unaffected. A claim for delivery will be excluded if the supplier pays compensation on request instead of the delivery. The acceptance of a late delivery will not constitute a waiver of compensation or the contract penalty.
4. A delivery before the agreed delivery date is only allowed with prior consent in writing. If no consent has been given, goods and products that are delivered early can be stored or returned at the cost of the supplier, unless the deviation from the agreed delivery date is negligible.
§ 8 Transfer of risk
1. The supplier will bear the risk of accidental loss or deterioration until the time of handover.
2. If the supplier has an obligation to assemble, the risk of accidental loss or deterioration will not be transferred until the installation or assembly.
§ 9 Transport damage
MEMMINGER-IRO will inspect the products and goods after receipt for obvious and outwardly recognisable transport damage and defects. There will be no further incoming goods inspection. The acceptance of products and goods and the subsequent processing of and payments for products that have not yet been identified or notified as defective do not constitute approval of the deliveries and a waiver of claims. The supplier will not object on the grounds of late notification of defects if the transport damage or defects were not obviously recognisable at the time of handover.
§ 10 Warranty, claims for defects and guarantees
1. Unless otherwise is expressly agreed, warranty claims by the customer will be based upon the statutory regulations.
2. The limitation period for warranty claims is – except for cases of fraud – two years starting from the delivery of the products (transfer of risk). If the defective products have been used for a building in keeping with their customary use and have caused the building to be defective or in the case of a defect in a building, the limitation period is five years.
3. If the supplier meets its obligation to provide supplementary performance with replacement delivery, the limitation period for the goods delivered as replacement will recommence after their delivery, unless the supplier expressly and correctly stated at the time of supplementary performance that the replacement delivery was only made as a gesture of goodwill to avoid disputes or in the interest of the continuation of the supply relationship.
4. The supplier will ensure that the products supplied conform with the approved samples and comply with the relevant legal provisions as well as the regulations and guidelines of public authorities, professional associations and trade associations (hereinafter: “regulations”). The supplier will indemnify MEMMINGER-IRO against all claims by third parties which are made against MEMMINGER-IRO or its customers due to non-conformity or a breach of the regulations, unless the supplier is not responsible for this. The supplier has to inform MEMMINGER-IRO immediately of any reservations about the requested execution of the order.
5. The supplier has to maintain an appropriate quality management system (hereafter: “QS”) and manufacture and test the products to be supplied in accordance with this. In particular, the supplier has to do its own material testing. The supplier will keep records of the QS tests, store these records in an orderly fashion and allow them to be inspected to the degree necessary, explain the records and issue copies.
6. In the case of defects, MEMMINGER-IRO has the right, without prejudice to legal claims, to demand either supplementary performance or delivery of defect-free products by the supplier, as it chooses. The supplier will bear the costs of rework. The rework has to take place where the products are located in accordance with the contract.
§ 11 Product liability / liability / force majeure
1. If a claim is made against MEMMINGER- IRO on the basis of product liability, the supplier undertakes to indemnify MEMMINGER- IRO against such claims if and to the extent which the damage has been caused by a defect in the contract product delivered by the supplier. In cases of liability on the basis of fault, this will only apply if the supplier is at fault. If the cause of the damage lies in the supplier’s area of responsibility, it will have to provide proof that it is not at fault. All other claims remain unaffected.
2. The supplier’s obligation to indemnify will also include refunding MEMMINGER-IRO in particular those costs arising from or relating to a warning, replacement or recall action. MEMMINGER-IRO will inform the supplier of the content and extent of measures to be taken, as far as possible and reasonable, and give it the opportunity to make a statement. The supplier has to provide support with the measures to be taken to the best of its ability and take all reasonable measures.
3. If MEMMINGER-IRO is prevented by force majeure from meeting its contractual obligations, in particular acceptance of the products, MEMMINGER-IRO will be released for the duration of the disruption and a reasonable start-up time from the obligation to deliver, without having to pay the supplier any compensation. This will apply in particular if it becomes impossible or unreasonably difficult to meet the contractual obligations due to disruptions to operations for which it is not to blame, actions by public authorities, energy shortages or other unavoidable events.
4. The provisions of § 11 No. 3 will also apply in the case of industrial disputes.
5. MEMMINGER-IRO will have the right to withdraw if such a disruption lasts for more than four months and there is no longer an interest in the performance of the contract due to this disruption. Upon request by the supplier, MEMMINGER-IRO will declare whether it will exercise its right of withdrawal or accept the products within a reasonable time.
6. The limitations of liability provided for in these sections also apply in favour of vicarious agents and for the personal liability of the employees, workers, staff and representatives of MEMMINGER-IRO.
§ 12 Secrecy
1. The parties agree to indefinitely maintain secrecy on all information made available to them which is marked as confidential or under the circumstances is recognisable as business or operational secrets, and not to record, disclose or use such information unless the business relationship requires this.
2. The obligation to maintain secrecy will not apply if the information was verifiably known to the receiving party before it entered into the contractual relationship, is generally known or accessible or becomes generally known or accessible through no fault of the receiving party. The burden of proof for this lies with the receiving party.
3. The parties will ensure with suitable contractual agreements with the employees and agents who work for them, in particular their freelance staff and the contractors and service providers who work for them, that they will refrain indefinitely from any use, disclosure or recording of such business and operational secrets.
§ 13 Data protection
Data is processed in accordance with the applicable data protection laws, in particular the European General Data Protection Regulation and the German Telemedia Act (TMG).
§ 14 Code of Conduct / compliance
1. The supplier has to comply with the statutory regulations of all countries in which it operates. In particular, it agrees not to participate either actively or passively, directly or indirectly in bribery or human rights abuses. It will assume responsibility for the health and safety of its employees and for the protection of the environment. The supplier also has to promote and demand compliance with this Code of Conduct among its own suppliers as best it can.
2. The supplier agrees, within the business relationship with us, not to enter into any agreements or concerted practices with other companies which have as their object or effect the prevention, restriction or distortion of competition pursuant to the applicable competition laws.
3. The supplier assures that it will comply with the applicable minimum wage laws and place subcontractors employed by it under obligation to the same extent. Upon request, the supplier will provide proof that this assurance is being met. In the event of a breach of this assurance, the supplier will indemnify us against all claims by third parties. It also has to refund us for any fines imposed on us in this connection.
When performing activities on the company's premises, the supplier is responsible for compliance with all accident prevention regulations and plant rules.
§ 15 Miscellaneous
1. For the supplier’s legal relationship with MEMMINGER-IRO, the law of the Federal Republic of Germany applies to the exclusion of the conflict of laws and to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
2. The sole place of jurisdiction for all disputes arising from the business relationship is the location of the registered office of MEMMINGER-IRO. MEMMINGER-IRO also has the right to bring an action at the location of the supplier’s registered office and at any other permissible place of jurisdiction.
3. The place of fulfilment for all services is the location to which the goods are to be delivered or where the service is to be performed according to the order.
4. The requirement of the written form will also be satisfied by fax or e-mail.
5. If a provision in these general terms and conditions of purchase should be or become ineffective or unenforceable in whole or in part, or if there should be a gap in these general terms and conditions of purchase, the validity of the remaining provisions will not be affected by this. In place of the ineffective or unenforceable provision, the effective or enforceable provision which is closest to the purpose of the ineffective or unenforceable provision will be deemed to have been agreed. In the event of a gap, the provision which would have been agreed in accordance with the purpose of these general terms and conditions of purchase if the matter had been considered from the outset will be deemed to have been agreed.