General Terms and Conditions of Purchase of Friedr. Dick GmbH & Co KG as of 01/2018

I. Scope

  1. The following General Terms and Conditions of Purchase of Friedr. Dick GmbH & Co KG (hereinafter the “GTC”) shall apply to all contracts concluded between Friedr. Dick GmbH & Co KG (hereinafter “DICK”) and the vendor (hereinafter the “VEN”) for the delivery of goods. These GTC also apply in the context of on-going business relationships for all of DICK’s future transactions, including where they are not expressly agreed again. Other contractual terms do not become part of the content of the contract, even if DICK does not expressly object to them.
  2. These GTC apply irrespective of whether or not the individual transaction concerns a contract of sale, contract for labour and materials, contract for services, or an order. If these GTC refer to the VEN, it is equally intended to also refer to the supplier of labour and materials, the work contractor, or the contractor.

II. Offer

  1. DICK is bound by an order (offer to conclude a contract) for 2 weeks. The VEN can only accept the order within these 2 weeks by a declaration to DICK in text form.
  2. All agreements between DICK and the VEN in connection with the contracts are to be made in text format, and where appropriate illustrated by designs, samples, and similar.

III. Payments

  1. The price shown by DICK in the order is binding and applies carriage paid. Packaging costs are included in the price. The price is always understood to be exclusive of the respective applicable VAT. All of the VEN’s invoices have to show the order number stated by DICK, are to be addressed to DICK in duplicate, and may not be attached to the delivery of goods.
  2. DICK pays, provided no written agreements to the contrary have been made with the VEN, within 14 days on full delivery of the goods by the VEN and receipt of the invoice, with a 3 % discount, or within 30 days without deduction.
  3. DICK is entitled to the statutory set-off and retention rights in full. DICK is entitled to assign all claims from the contract of sale without the VEN’s consent. The VEN is not entitled to assign claims against DICK to third parties.
  4. The VEN is to take back transport packaging. If it is impossible or unreasonable for this to be taken back, the VEN bears the costs of the special disposal. DICK can – if the costs of the disposal cannot be shown separately – withhold 1 % of the invoice amount as reimbursement of the costs.

IV. Delivery period

  1. The delivery period specified by DICK in the order, or the delivery date specified, apply as the agreed performance period, so that default occurs without warning.
  2. If the VEN falls into default, DICK is entitled to the statutory claims.

V. Granting of rights of use

  1. If, in the course of the production and/or development of the performance owed pursuant to Clause I.1., inventions are made which are patentable or patentable as utility models and/or other technical improvement proposals or know-how and/or copyrights, DICK shall be exclusively authorized without limitation as to time, space, content and scope to use, modify and/or exploit them comprehensively and – to the extent that they are registrable – to apply for registration thereof.
  2. All costs incurred with the registration of property rights and the assertion of protection claims shall be borne exclusively by DICK. The same shall apply to remunerations owed by the VEN to its employees (hereinafter "EMP") pursuant to the German Employee Inventions Act (ArbnErfG); DICK shall hold the VEN harmless in this respect; however, this shall only apply to the extent that DICK is involved in the proceedings for the determination of such remunerations and agrees thereto or an agreement fails and therefore the determination is legally binding in the court proceedings pursuant to the ArbnErfG.
  3. The VEN will inform DICK immediately in a text form of the report of an invention or the notification of a proposed technical improvement by an EMP. If DICK notifies the VEN in text form within 3 months of the claiming of the invention or the desired utilization of the technical improvement suggestion, the above Clauses 1. and 2. shall apply. Otherwise the VEN is at liberty to assert an own claim to the invention or for the exploitation of the proposed technical improvement at its own costs and risk.

VI. V. Claims and rights due to material defect

  1. Section 377 German Commercial Code (HGB) applies for the obligation to examine the goods and make complaints about any defects, providing that a complaint from DICK about concealed defects is considered on time within two weeks from their discovery; this only fails to apply if the VEN has a legitimate interest in an immediate complaint, especially due to the possibility of mitigating the damage.
  2. DICK is entitled to the statutory defect rights and claims against the VEN. The VEN is liable to DICK to the extent provided by law.
  3. If DICK can assert compensation claims, the lost profit that can be compensated is deemed to be the imputed usual margin for DICK. The VEN is at liberty to prove lower loss.
  4. If DICK asserts justified warranty rights and/or claims against the VEN, the VEN shall forfeit a contractual penalty of 100.00 euros for each defect, to the exclusion of any continuation of the defect.

VII. Liability of the VEN

  1. If third parties bring claims for compensation against DICK due to a product defect or consequential loss from a product for which the VEN is responsible, the VEN is to indemnify DICK on first request against all claims by third parties, including the costs to defend these claims.
  2. If DICK must – for legal and/or commercial reasons – carry out a product recall due to a case of damage in the sense of the above Clause 1, the VEN is obligated to reimburse DICK for all expenditure which results from or in connection with the product recall carried out by DICK. Any further legal claims of DICK shall remain unaffected. DICK shall inform the VEN immediately on the content and the extent of the product recall – insofar as this is possible reserving its own commercial interests, especially considering the public perception – and give it the opportunity to comment.
  3. The VEN is obligated to maintain a product liability insurance policy with a standard insured sum usual for the industry. DICK’s statutory and contractual claims exceeding the insurance cover are not affected by this.
  4. If claims are made against DICK by third parties because it is asserted that the VEN’s delivery breaches a statutory property right of a third party, the VEN undertakes to indemnify DICK on first request against these claims. The indemnification obligation includes all expenditure which DICK incurs in connection with the claim by the third party, and the defence against its claims.
  5. The VEN is aware of the end products for the manufacture of which the partial and/or end products to be supplied by him are used. The VEN is obligated to observe all legal requirements – especially under consumer protection law – for its products regarding the end products sold by DICK. The VEN especially undertakes to comply with Regulation (EC) 1907/2006 (so-called REACH) applicable for DICK’s end products, concerning materials used and objects with food contact, Regulation (EC) No 1935/2004, Regulation (EU) No 10/2011 and Regulation 1416/2016, Regulation (EC) No 2023/2006, the German Food, Consumer Goods, and Feed Code (LFGB), Consumer Goods Regulations (BedGgstV), and the American FDA Approval Code of Federal Regulations, Title 21 part 170--190, concerning machines and components of machines, Directive 2006/42/EC (so-called Machinery Directive), Directive 30/2014/30/EU (so-called EMC Directive), and Directive 65/2011/65/EU (so-called RoHS Directive).

VIII. Confidentiality

  1. All parts, documents, and designs received from DICK remain DICK’s property. DICK reserves all usage rights and copyrights. The VEN may only use these outside of the business relationship and/or transfer these to third parties, or make these accessible to third parties, with consent in text format from DICK obtained in advance. After fulfilment of the particular contract, the VEN is to return these at its own costs to DICK immediately and completely, together with all copies made, where applicable, and to delete any existing digital copies.

IX. Place of jurisdiction, place of performance, applicable law

  1. The place of performance is the place where the goods are to be delivered in accordance with the order.
  2. The exclusive place of jurisdiction for all legal disputes from and in connection with the delivery and other contracts, including cheque and bill of exchange actions, is Stuttgart.
  3. The relationships between the contracting parties are exclusively governed by the substantive law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.