General Terms and Conditions of Purchase by MAD Ventura S.L.
1. Background
(1) These General Terms and Conditions of Purchase (GTCPs) shall apply to all business relations with the “Purchaser’s” (MAD Ventura S.L) business partners and suppliers («the Seller»). The GTCPs shall only apply if the Seller is an entrepreneur (§ 14 under the BGB, the German Civil Code), a legal entity under public law or a special fund under public law.
(2) The GTCPs apply in particular to contracts for the sale and/or delivery of movable goods («Goods»), irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GTCPs in the version valid at the time of the Purchaser’s order or, in any case, in the version last notified to the Buyer in written text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
(3) These GTCPs shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Seller shall only become part of the contract if and to the extent that we have expressly consented to their acceptance in writing. This requirement of consent shall apply in any case, for example, even if the Purchaser accepts the Seller’s deliveries without reservation in the knowledge of the Seller’s General Terms and Conditions.
(4) Individual agreements made with the Seller in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTCPs. Subject to proof to the contrary, a written contract or the Purchaser’s written confirmation shall be authoritative for the content of such agreements.
(5) Legally relevant notifications or declarations by the Seller in relation to the contract, such as a deadline, reminder or withdrawal, shall be made in writing or text form.
(6) References to the applicability of statutory provisions shall only have clarifying significance. Therefore, even without such clarification, the statutory provisions shall apply insofar as they are not directly amended or expressly excluded in these GTCPs.
2. Conclusion of contract
(1) The Purchaser’s order shall be deemed binding at the earliest upon submission or confirmation in writing or text form.
(2) The Seller is obliged to confirm the Purchaser’s order in writing or text form within a period of two weeks.
(3) All offers and cost estimates of the seller shall be made at the Seller’s own expense.
3. Delivery
(1) Without our prior written consent, the Seller shall not be entitled to engage third parties (such as subcontractors) to fulfill orders or to undertake its agreed services. The Seller shall bear the procurement risk for its services unless otherwise agreed in individual cases, such as the restriction of stock.
(2) Agreed dates and deadlines are binding, whereby receipt of the goods by the Purchaser or at the place of delivery specified in the order is decisive for compliance with the delivery date. Delivery shall be made DAP (Delivered at Place) in accordance with Incoterms 2020. If a forwarder is used, the seller shall make the goods available in good time, taking into account the time for loading and dispatch to be agreed with the forwarder.
(3) The delivery shall be accompanied by a delivery note stating the date of issue, dispatch and the contents of the delivery (article number and quantity). If the delivery note is missing or incomplete, the Purchaser shall not be responsible for any resulting delays in processing and payment. A corresponding dispatch note with the same content shall be sent to the Purchaser separately from the delivery note.
(4) The statutory provisions shall apply to the occurrence of the Purchaser’s default in acceptance. However, the Seller must also ensure his fulfillment of the Purchaser’s order if a specific or determinable calendar time has been agreed for an action or cooperation on our part (e.g. provision of material). If the Purchaser is in default of acceptance, the Seller may demand compensation for his additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract relates to an exclusive, non-replicable item to be manufactured by the Seller , the Seller shall only be entitled to further rights if the Purchaser has undertaken to cooperate and is responsible for the failure to cooperate.
4. Prices and terms of payment
(1) The price stated in the order is binding. All prices include statutory value-added tax if this is not shown separately.
(2) Unless otherwise agreed in the individual case, the price includes all services and ancillary services of the Seller as well as all ancillary costs such as, in particular, proper packaging, transport costs including any transport and liability insurance.
(3) The agreed price is due for payment within 30 calendar days of complete delivery and fulfillment (including any agreed acceptance) and receipt of a proper invoice. If the Purchaser makes a payment within 14 calendar days, the Seller shall grant the Purchaser a 3% discount on the net amount of the invoice.
(4) The Purchaser does not owe any interest in arrears. The statutory provisions shall apply to default in payment.
(5) The Purchaser shall be entitled to rights of set-off and retention as well as the defence of non-performance of the contract to the extent provided by law. In particular, the Purchaser is entitled to withhold payments due as long as it is still entitled to claims against the Seller arising from incomplete or defective performance.
(6) The Seller shall have a right of set-off or retention only on the basis of counterclaims that have become res judicata or are undisputed.
5. Secrecy and retention of title
(1) The Purchaser reserves the property rights and copyrights to all documents provided, irrespective of their form. Such documents are to be used exclusively for contract fulfillment and are to be returned to the Purchaser after completion of the contract or destroyed with their consent. The documents must not be disclosed to third parties, even following termination of the contract. The obligation to nondisclosure shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known.
(2) The above provision shall apply mutatis mutandis to substances, materials and other items which the Purchaser provides to the Seller for production. Such items – as long as they are not processed – shall be stored separately at the Seller’s expense and insured to a reasonable extent against destruction and loss.
(3) Any processing, mixing or combination (further processing) of provided items by the Seller shall be carried out on the Purchaser’s behalf. The same shall apply in the event of further processing of the goods supplied by us, so that we shall be deemed to be the manufacturer and shall acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions.
(4) The transfer of ownership of the goods to the Purchaser shall be unconditional and without regard to the payment of the invoice/s for the goods. If, however, in an individual case the Purchaser accepts an offer by the Seller to transfer ownership conditional on payment of the purchase price, the Seller’s retention of title shall expire at the latest upon payment of the purchase price for the goods delivered. The Purchaser shall remain authorised to resell the goods in the ordinary course of business even before payment of the purchase price with advance assignment of the claim arising therefrom (alternatively validity of the simple reservation of title extended to the resale). This excludes all other forms of retention of title, in particular the extended retention of title, the passed-on retention of title and the retention of title extended to further processing.
6. Defective delivery
(1) The statutory provisions shall apply to the Purchaser’s rights in the event of material defects, defects of title of the goods, and in the event of other breaches of duty by the Seller, unless otherwise stipulated below.
(2) In accordance with the statutory provisions, the Seller shall be liable in particular for ensuring that the goods are up to the agreed quality at the time of transfer of risk to the Purchaser. In any case, those product descriptions which – in particular by designation or reference in the Purchaser’s order – are the subject matter of the respective contract, or were included in the contract in the same way as these GTCPs shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from the Purchaser, from the Seller or from the manufacturer.
(3) The Purchaser is not obliged to inspect the goods or to make special enquiries about any defects upon conclusion of the contract. Partially deviating from § 442 para. 1 sentence 2 BGB (the German Civil Code), the Purchaser is therefore also entitled without restriction to claims for defects if the defect remained unknown to it at the time of conclusion of the contract due to gross negligence.
(4) The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial duty to examine and give notice of defects with the following proviso: the Purchaser’s duty to examine shall be limited to defects which become apparent during its incoming goods inspection under external examination, including the delivery documents (e.g. transport damage, wrong delivery and short delivery), or which are recognisable during its quality control in the random sampling procedure. If acceptance has been agreed, there shall be no obligation to inspect. Otherwise, it shall depend on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. The Purchaser’s obligation to give notice of defects discovered later remains unaffected.
(5) The expenses necessary for the purpose of inspection and subsequent performance shall be borne by the Seller even if no defect is detected. Liability for damages in the event of an unjustified request to remedy a defect shall remain unaffected; in this respect, however, the Purchaser shall only be liable if it recognises or were grossly negligent in not recognising that there was no defect.
(6) Notwithstanding the Purchaser’s statutory rights and the provisions in para. 5, the following shall apply: If the Seller fails to fulfil its obligation to remedy the defect – at the Purchaser’s discretion by rectifying the defect or by delivering a replacement free of charge, within a reasonable period set by the Purchaser, it may remedy the defect themselves and demand reimbursement from the Seller of the expenses required for this purpose or a corresponding advance payment. If subsequent deliveries by the Seller are defective or unacceptable to the Purchaser, e.g. due to particular urgency, risk to operational safety or the threat of disproportionate damage, no deadline needs to be set; the Purchaser shall inform the Seller of such circumstances without delay, if possible in advance.
(7) Furthermore, in the event of a material defect or defect of title, the Purchaser shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, it shall be entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.
7. Supplier recourse
(1) The Purchaser shall be entitled to their statutory rights of recourse within a supply chain (supplier recourse pursuant to §§ 445a, 445b, 478 BGB) without limitation, in addition to the claims for defects. In particular, the Purchaser is entitled to exactly the same type of subsequent resolution (repair or replacement delivery) from the Seller that the Purchaser owes their customer in the individual case. The Purchaser’s statutory right of choice (Section 439 (1) BGB) shall not be restricted hereby.
(2) Before the Purchaser acknowledges or fulfils a claim for defects asserted by their customer (including reimbursement of expenses pursuant to Sections 445a (1), 439 (2) and (3) of the German Civil Code), the Purchaser shall notify the Seller and request a written statement, briefly setting out the facts of the case. If a substantiated statement is not made within a reasonable period of time, and if no amicable solution is reached, the claim for defects actually granted by the Purchaser shall be deemed to be owed to their customer. In this case, the Seller shall carry the burden of proof to the contrary.
(3) The Purchaser’s claims of recourse from the Supplier shall also apply if the defective goods have been further processed by the Purchaser or another entrepreneur.
8. Product liability
(1) If the Seller is responsible for product damage, it shall indemnify the Purchaser against claims by third parties to the extent that the cause lies within the Seller’s sphere of control and organisation and the Seller assumes liability to third parties.
(2) Within the scope of its indemnification obligation, the Seller shall reimburse expenses pursuant to Sections 683, 670 of the German Civil Code (BGB) arising from, or in connection to a claim by a third party including recall actions carried out by us. The Purchaser shall inform the Seller about the content and scope of recall measures – insofar as this is possible and reasonable – and give the Seller the opportunity to comment. Further legal claims shall remain unaffected.
(3) The Seller shall take out and maintain product liability insurance with a lump sum coverage of at least 10 million euros per personal injury/property damage.
9. Limitation
(1) The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions unless otherwise stipulated below.
(2) In deviation from § 438 para. 1 no. 3 BGB (German Civil Code), the general limitation period for claims for defects shall be 3 years from the transfer of risk. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. The three-year limitation period shall apply mutatis mutandis to claims arising from defects of title, whereby the statutory limitation period for claims in rem of third parties for surrender of goods (Section 438 (1) No. 1 BGB) shall remain unaffected. In addition, claims arising from defects of title shall in no case become time-barred as long as the third party can still assert the right – in particular in the absence of a limitation period – against the Purchaser.
(3) The limitation periods of the law on sales including the above extension shall apply – to the extent provided by law – to all contractual claims for defects. Insofar as the Purchaser is also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (§§ 195, 199 BGB) shall apply for this, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.
10. Choice of law, place of jurisdiction, severability clause
(1) The entire legal relationship between the Seller and the Purchaser shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods, and the connecting factors of private international law.
(2) If the Seller is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising in connection with this contract shall be Düsseldorf. The Purchaser is also entitled, at its own discretion, to sue the seller at his general place of jurisdiction.
(3) Should any provision of these Terms and Conditions of Purchase or other agreements be or become invalid or unenforceable in whole or in part, or should a loophole be found therein, this shall not affect the validity of the remaining provisions.
(Current as at: September 2020)
