General Terms and Conditions of Purchase – Timmer GmbH

GTC of purchase download

Section 1: General Provisions, Scope
(1) These general terms and conditions of purchase apply to all business relationships with our business partners and suppliers (hereinafter referred to as the “seller”). However, these general terms and conditions of purchase shall only apply if the seller is a “trader”, as defined in Section 14 of the German Civil Code (BGB), a legal person incorporated under public law or an investment fund incorporated under public law. (2) These general terms and conditions of purchase apply in particular to contracts for the sale and/or delivery of movable objects (“goods”), regardless of whether the seller man-ufactures the goods itself or purchases them from suppliers (see Sections 433, 650 BGB).
(3) These general terms and conditions of purchase shall apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the seller shall only be in-cluded in the contract if we explicitly approve their validity in writing. We must grant our approval in each case (e.g. even if the seller refers to its own general terms and condi-tions when issuing an order confirmation and we do not explicitly object to them).
(4) Any individually agreed terms and the information provided in our purchase order shall take precedence over these general terms and conditions of purchase. In case of doubt, all commercial terms shall be interpreted according to the version of the Incoterms® ap-plicable at the time the contract is concluded, as published by the International Chamber of Commerce (ICC) in Paris.
(5) Any legally relevant declarations and notifications to be submitted by the seller in relation to the contract (e.g. deadlines, payment reminders, withdrawal from the contract) must be made in writing. For the purpose of these general terms and conditions of purchase, the term “in writing” also includes text form (e.g. letter, email, fax). Notwithstanding the above, the statutory provisions apply with regard to formal requirements and additional evidence, especially in case of doubt regarding the authority of the person submitting a declaration.
(6) Any references to the validity of statutory provisions are only made for clarification pur-poses. The statutory provisions shall therefore also apply without such clarifying refer-ences, unless they are directly amended or explicitly excluded by these general terms and conditions of purchase.

Section 2: Conclusion of Contract
(1) Our purchase order shall not be considered binding until it has been submitted in writing or confirmed. The seller must inform us of any obvious errors (e.g. spelling mistakes and miscalculations) and any information that may be missing from a purchase order, includ-ing the order documents, before the purchase order is accepted, so that changes can be made and information can be added as required; otherwise, the contract shall be ren-dered null and void.
(2) The seller shall be obliged to confirm our purchase order in writing within 14 days or to execute the order unconditionally, in particular by sending the goods.
(3) If the purchase order is accepted after this period, this shall be considered a new offer, which must be accepted by us.

Section 3: Delivery Deadlines and Delays
(1) The delivery deadline specified in our purchase order shall be binding. The seller shall be obliged to immediately inform us in writing if it believes that it will not be able to meet any agreed delivery deadlines for whatever reason.
(2) If the seller fails to provide its services within the agreed delivery deadline or defaults on a delivery, our rights shall be governed by the statutory provisions, in particular our right to withdraw from the contract and demand compensation for damages. This shall be without prejudice to the provisions set out in (3) below.
(3) If the seller defaults on a delivery, we may, in addition to asserting our further statutory claims, demand a lump sum of compensation for the damages incurred as a result of default amounting to 1% of the net price per full calendar week, but no more than 5% of the net price of the delayed goods in total. We reserve the right to prove that we have incurred greater damages. The seller reserves the right to prove that we have incurred significantly less or no damage.

Section 4: Services, Deliveries, Transfer of Risk, Default of Acceptance
(1) The seller shall not be entitled to have the services owed under the contract provided by third parties (e.g. subcontractors) without our prior written consent. The seller shall bear the procurement risk for its services, unless otherwise agreed in a specific case (e.g. limitation to stocks).
(2) The goods shall be delivered duty paid (DDP – Incoterms 2020) to Dieselstraße 37, 48485 Neuenkirchen, Germany. If the destination is not specified, and if no other agree-ment is made in this regard, the goods must be delivered to our registered office at Die-selstraße 37, 48485 Neuenkirchen, Germany. The respective destination shall also be the place of performance for the delivery, as well as the place of performance for any rectification measures in case of defects.
(3) Each delivery must be accompanied by a delivery note specifying the date (issue and dispatch), the contents of the delivery (article numbers and quantities) and our purchase order reference (date and number). If a delivery note is missing or incomplete, we shall not be held responsible for any subsequent delay in processing and payment. A corre-sponding dispatch note with the same content must be sent to us separately from the delivery note.
(4) The risk of accidental loss and deterioration of the purchased items shall be transferred to us as soon as the items are handed over at the place of performance. If a formal acceptance procedure is agreed, this shall determine when the risk is transferred. The statutory provisions on contracts for work and services shall also apply accordingly to any acceptance procedure. The purchased items shall be deemed to have been handed over or accepted if we are in default of acceptance.
(5) The seller shall not be entitled to make partial deliveries without our prior written consent.
(6) The statutory provisions shall determine whether we are in default of acceptance. How-ever, the seller must expressly offer us its services even if a specified or specifiable calendar date has been agreed for us to act or cooperate in any other way (e.g. by providing materials). If we are in default of acceptance, the seller may claim compensa-tion for its additional expenses in accordance with the statutory provisions (Section 304 BGB). If the contract concerns a custom-made item to be manufactured by the seller, the seller shall only be entitled to assert further rights if we are obliged to cooperate and are responsible for our failure to cooperate.

Section 5: Prices and Terms of Payment
(1) The price indicated in each purchase order shall be binding. All prices shall include the statutory rate of value added tax, unless this is indicated separately.
(2) Unless otherwise agreed in a specific case, the price shall include all of the seller’s ser-vices and incidental services (e.g. assembly, installation) and all ancillary costs (e.g. proper packaging and transport costs, including any transport and liability insurance).
(3) The agreed price shall be due for payment within 30 calendar days of complete delivery and service (including any acceptance procedure that may be agreed) and receipt of a proper invoice. If we make a payment within 14 calendar days, the seller shall grant us a 3% discount on the net invoice amount. In the case of bank transfers, the payment shall be deemed to have been made on time if our transfer order is received by our bank within the payment deadline; we shall not be responsible for any delays caused by the banks involved in the transaction.
(4) We shall not owe any default interest on late payments. The statutory provisions shall apply to any delays in payment.
(5) We may exercise the right to offset and withhold claims – and base our defence on an unfulfilled contract – to the extent permitted by law. In particular, we shall be entitled to withhold any outstanding payments for as long as we hold claims against the seller due to incomplete or defective services.
(6) The seller shall only be entitled to exercise a right to offset or withhold claims due to legally established or undisputed counterclaims.

Section 6: Confidentiality, Retention of Title, Means of Production and Provision of Ma-terials by Us
(1) We shall reserve all proprietary rights and copyrights to illustrations, plans, drawings, calculations, instructions, product descriptions and other documents. Any such docu-ments may only be used for the performance of the contract and must be returned to us once the contract has been completed. The documents must be kept secret from third parties, even after the contract has expired. This obligation to maintain confidentiality shall only expire if the knowledge contained in the documents becomes available to the general public. This shall be without prejudice to any special non-disclosure agreements and legal regulations on the protection of secrets.
(2) The above provision shall apply accordingly to any substances and materials (e.g. soft-ware, finished and semi-finished products) and any tools, templates, samples and other items that we may provide to the seller for production purposes. Unless such items are processed, they must be stored separately and reasonably insured against loss and de-struction at the expense of the seller. The seller may only use any means of production provided by us and their reproductions for the purpose of executing our order. If the seller reproduces any of our means of pro-duction tailored to the products, those reproductions must be returned to our registered office without the need for a request and at the seller’s expense after the contractual relationship has been completed, unless explicitly agreed otherwise.
(3) If the seller processes, mixes or combines any of the materials we provide, any such further processing shall be done for us. The same shall apply if we carry out further processing on the delivered goods ourselves; we shall be regarded as the manufacturer and shall acquire ownership of the final product – at the latest when the goods are sub-jected to further processing – in accordance with the statutory provisions.
(4) We must be transferred ownership of the goods unconditionally, regardless of whether the purchase price has been paid. However, if we ever accept an offer from the seller for the transfer of ownership that is conditional on the payment of the purchase price, the seller’s retention of title shall expire at the latest when the purchase price for the delivered goods is paid. We shall be authorised to resell the goods within our ordinary course of business even before the purchase price has been paid, provided that the resulting claims are assigned to the seller in advance (alternatively, validity of the simple retention of title extended to the resale). In any case, the seller shall not be entitled to exercise any other forms of retention of title, in particular any extended or transferred retention of title and any retention of title extended to further processing.

Section 7: Defective Deliveries
(1) If the goods have any material defects or defects in title (including incorrect and short deliveries, improper assembly / installation or inadequate instructions), and if the seller breaches any other duties, our rights shall be governed by the statutory provisions and the following additions and clarifications, which shall apply exclusively for our benefit.
(2) In accordance with the statutory provisions, the seller shall be particularly liable for en-suring that the goods have the agreed quality when the risk is transferred to us. In any case, the agreed quality shall be inferred from the product descriptions that are subject to the respective contract or that are included in the contract in the same way as these general terms and conditions of purchase, in particular by means of an indication or ref-erence contained in our purchase order. It shall make no difference whether the product description is provided by us, the seller or the manufacturer.
(3) In the case of goods with digital elements or other digital content, the seller shall be obliged to provide and update the digital content to the extent that this is stated in an agreement on qualities (see (2) above) or in any other product descriptions that may be offered by or on behalf of the manufacturer, in particular on the Internet, in advertise-ments or on product labels.
(4) When entering into the contract, we shall not be obliged to examine the goods or to make specific enquiries about any defects. By way of derogation from the second sentence of Section 442 (1) BGB, we shall therefore be fully entitled to assert claims for defects even if we are unaware of the defects in question when entering into the contract as a result of gross negligence.
(5) The provisions of Sections 377 and 381 of the German Commercial Code (HGB) apply with regard to our commercial obligation to inspect deliveries and report any defects, subject to the following conditions: We shall only be obliged to look for defects that may be revealed by external inspections of incoming goods, including delivery documents, or defects that may be revealed by random quality controls (e.g. transport damage, incor-rect or short deliveries). We shall not be obliged to inspect the goods if a formal ac-ceptance procedure has been agreed. The necessity of an inspection shall also depend on its feasibility within our ordinary course of business, taking into account the specific circumstances of each case. However, we shall still be obliged to report any defects found at a later date. Irrespective of our obligation to inspect deliveries, we shall be deemed to have raised an immediate and timely complaint (notification of defects) if we submit a complaint within 7 working days of discovering the defect or, in the case of obvious defects, within 7 working days of delivery.
(6) In the event of a claim for defects, the relevant rectification measures shall also include removing the defective item and reinstalling it, insofar as the item had been installed in another item or attached to another item in accordance with its intended use before the defect became apparent; this shall be without prejudice to our statutory claim to com-pensation for the relevant expenses (removal and reinstallation costs). Any necessary expenses incurred for the purpose of inspecting the defects and rectifying the situation (e.g. costs for transport, travel, labour, materials, dismantling and assembly) shall be borne by the seller even if it turns out that there actually are no defects. We shall be liable for damages in the event of an unjustified request for the rectification of a defect; however, we shall only be liable if we actually recognised the lack of defects or failed to recognise this through gross negligence.
(7) Notwithstanding our statutory rights and the provisions of (5) above, if the seller does not meet its obligation to rectify a defect, either by eliminating the defect (repair) or delivering a non-defective item (replacement), as chosen by us, within a reasonable period of time set by us, we may remedy the defect ourselves and demand reimbursement of the nec-essary expenses or a corresponding advance payment from the seller. If the seller fails in its attempt to rectify a defect, or if the rectification measures are unreasonable for us (e.g. because the matter is particularly urgent, there is a threat to operational safety or we are about to incur disproportionate damage), we shall not be required to set a dead-line; we shall inform the seller of such circumstances immediately, giving advance notice where possible.
(8) In the event of a material defect or defect in title, we shall also be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provi-sions. In addition, we shall be entitled to compensation for damages and the reimburse-ment of expenses in accordance with the statutory provisions. Section 8: EC Declaration of Conformity / Manufacturer’s Declaration / REACH Regula-tion
(1) The delivered products must comply with all regulations, directives and standards appli-cable to the respective product. If a manufacturer’s declaration or a declaration of con-formity (CE) within the meaning of the EC Machinery Directive is required for the product in question, the seller must prepare this and make it available immediately upon request at its own expense.
(2) The seller agrees to comply with the provisions of Regulation (EC) No. 1907/2006 con-cerning the Registration, Evaluation, Registration and Restriction of Chemicals (REACH Regulation). If the seller supplies articles within the meaning of the REACH Regulation, it shall be obliged to disclose this information.
Section 9: Recourse Against the Supplier
(1) In addition to claims for defects, we may fully assert our statutory claims for expenses and recourse within a supply chain in accordance with Sections 478, 445a, 445b BGB or Sections 445c, 327 (5), 327u BGB. In particular, we shall be entitled to ask the seller to rectify the issue exactly as demanded by our customer in each case (repair or replace-ment); in the case of goods with digital elements or other digital content, this also applies with regard to the provision of necessary updates. This shall not restrict our right to choose our own rectification measures in accordance with Section 439 (1) BGB.
(2) Before acknowledging or fulfilling a claim for defects asserted by one of our customers (including reimbursement of expenses pursuant to Section 445a (1), Section 439 (2) and (3), the second sentence of Section 439 (6) and Section 475 (4) BGB), we shall notify the seller, briefly presenting the facts of the matter and requesting a written statement. If the seller does not make a substantiated statement within a reasonable period and no amicable solution can be found, the claim for defects owed to our customer shall be the claim that has actually been granted by us. In such cases, the seller shall be responsible for providing evidence to the contrary.
(3) We shall still be entitled to our claims arising from recourse against the supplier if we, our customer or a third party have subjected the defective goods to further processing (e.g. by incorporating them into another product, by attaching them to or installing them in another product, by combining them with another product or in any other way).

Section 10: Product Liability
(1) If the seller is responsible for a defective product, the seller shall indemnify us against any third-party claims to the extent that the cause can be traced back to its sphere of control and organisation and to the extent that the seller is personally liable to third par-ties.
(2) As part of its obligation to provide indemnification, the seller must reimburse any ex-penses resulting from or in connection with any third-party claims, including any product recall campaigns carried out by us, in accordance with Sections 683 and 670 BGB. We shall inform the seller about the content and scope of any such product recalls – if pos-sible and reasonable – and shall give the seller the opportunity to comment. We reserve the right to assert further statutory claims.
(3) The seller must take out product liability insurance with a sum insured of at least EUR 10 million per claim for personal injury / property damage; the seller must constantly renew the policy. Section 11: Property Rights
(1) In accordance with this paragraph, the seller shall guarantee that the goods it sells do not infringe any third-party property rights in Member States of the European Union or in any other countries where the seller’s goods are manufactured by the seller itself or by a third party. The seller shall be obliged to indemnify us against any claims asserted by third parties due to the infringement of intellectual property rights and to reimburse us for any necessary expenses incurred in connection with such claims. This shall not apply if the seller proves that it is neither responsible for the infringement of the property rights nor should it have been aware of this at the time of sale if it had exercised the diligence of a prudent businessperson.
(2) This shall be without prejudice to our further statutory claims due to defects in title affect-ing the goods sold to us.

Section 12: Limitation Period
(1) Any mutual claims held by the contracting parties shall become time-barred in accord-ance with the statutory provisions, unless otherwise specified below.
(2) By way of derogation from Section 438 (1) No. 3 BGB, any claims for defects shall gen-erally become time-barred 3 years after the transfer of risk. If a formal acceptance pro-cedure has been agreed, the limitation period shall begin once the goods have been accepted. The three-year limitation period shall also apply accordingly to any claims aris-ing from defects in title, but without prejudice to the statutory limitation period for real rights of third parties on the basis of which the return of a purchased item may be de-manded (Section 438 (1) No. 1 BGB); in addition, any claims arising from defects in title shall not become time-barred under any circumstances as long as the third party can still assert the right against us, in particular in the absence of a limitation period.
(3) The limitation periods stipulated in sales law, including the aforementioned extension, shall apply to all contractual claims for defects to the extent permitted by law. If we are also entitled to assert non-contractual claims for damages due to a defect, the regular statutory limitation periods specified in Sections 195 and 199 BGB shall apply, unless the limitation period could be extended in a particular case by applying the limitation periods stipulated in sales law.

Section 13: Applicable Law and Place of Jurisdiction
(1) These general terms and conditions of purchase – and the contractual relationship be-tween the seller and us – shall be subject to the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) If the seller is a “merchant”, as defined in the HGB, a legal person incorporated under public law or an investment fund incorporated under public law, our registered office in 48485 Neuenkirchen, Germany shall be the exclusive – and international – place of ju-risdiction for any disputes arising from the contractual relationship. The same shall apply if the seller is a “trader”, as defined in Section 14 BGB. In any case, however, we shall also be entitled to take legal action at the place of performance for the delivery, as indi-cated in these general terms and conditions of purchase or in a prioritised individual agreement, or at the seller’s general place of jurisdiction. This shall be without prejudice to the prioritisation of certain statutory provisions, particularly those relating to exclusive competences.

Last updated: November 2024