Terms and Conditions of Purchase

General Terms and Conditions of Purchase of CEMO GmbH

Date: September 2022 | Download as PDF (in German)

I. Scope

The following terms and conditions apply to all current and future orders placed by CEMO GmbH, hereinafter referred to as the “Purchaser”, and form an integral part of the contracts in place with the Supplier. The Supplier’s terms and conditions, as well as any deviations from these Terms and Conditions of Purchase contained in order confirmations or other documents issued by the Supplier, shall not be recognised unless the Purchaser confirms them in writing. Neither the absence of an express objection nor the acceptance of the goods or services, nor payment for them, shall be deemed to constitute acceptance of the Supplier’s general terms and conditions. The fulfilment of the order by the Supplier shall be deemed to constitute acceptance of these Terms and Conditions of Purchase for the transaction in question as well as for future transactions.

II. Order, Delivery and Packaging

Supply contracts and call-off orders, as well as any amendments or additions thereto, must be in writing. This also applies to any waiver of the written form requirement. Orders placed verbally are only valid if they are subsequently confirmed in writing by the Purchaser’s procurement department.
Orders shall become binding at the latest if the Supplier does not object within 2 working days of receipt.
The Purchaser may, within limits that are reasonable for the Supplier, request changes to the design and model of the goods to be supplied. In such cases, the implications – in particular with regard to additional and reduced costs, as well as the delivery date – shall be settled by mutual agreement.
Prices are inclusive of all ancillary costs and are fixed prices on a free-on-board basis (to the named place of receipt), including transport, packaging and customs clearance.
The applicable value-added tax must be shown separately.
The Supplier must enclose all necessary delivery documents with the consignment. The delivery documents must specify the delivery address, the order number, the item numbers, the delivery quantity, the weight and other information relevant to the delivery, such as drawing numbers. Incorrect or incomplete delivery documents entitle the purchaser to refuse acceptance.
If a device within the meaning of the Machinery Directive (2006/42/EC) is the subject of the supply contract, the supplier is also obliged to provide the risk assessment required under this Directive.
Quotations are binding and shall not be remunerated, unless otherwise agreed in writing between the parties in advance.
Delivery before the agreed date or partial delivery is only possible with the prior written consent of the purchaser.
The goods must be packaged by the supplier in such a way as to prevent damage during transport. Hazardous materials must be packed, labelled and dispatched by the supplier in accordance with the requirements of the statutory provisions in force at the time of delivery. Packaging material must be used only to the extent necessary for this purpose. Only environmentally friendly packaging materials may be used.
Transport packaging must be taken back by the Supplier at its own expense.
Product packaging must be designed in such a way that it can be disposed of by the purchaser without additional cost. The use of reusable packaging is permitted, provided this has been agreed in individual contracts. If such packaging is used, the supplier must indicate this and label the reusable packaging material as such. The provision and return of reusable packaging material shall be at the supplier’s expense. The purchaser accepts no responsibility or liability for the condition of returned reusable packaging.
If goods are intended for export, the supplier must use a proper and relevant form to provide a written declaration regarding the customs origin of the goods. This declaration must be handed over to the purchaser no later than upon the first delivery. The supplier guarantees that the goods supplied comply with all relevant statutory provisions; in the case of deliveries to a country other than the country of origin, this also includes the provisions of the country of destination.
Ownership of the goods shall pass to the purchaser upon handover. Insofar as the supplier has validly reserved title to the delivered goods until full payment of the agreed price, ownership shall pass upon completion of the final payment transaction relating to the specific transaction. Any extended and/or expanded retention of title by the supplier is expressly rejected.

III. Payment

Payment shall be made according to the agreed terms of payment. Unless a payment period has been agreed, payment shall be made within 14 calendar days with a 3% discount or 30 calendar days net following delivery and receipt of the invoice. Where the product or service ordered is subject to an acceptance test or acceptance procedure, the payment period shall commence upon acceptance and receipt of the invoice. In the event of acceptance of early deliveries, the due date shall be determined by the agreed delivery date.
In the event of a faulty delivery, the purchaser is entitled to withhold payment on a pro rata basis until proper performance has been achieved.
The Supplier is not entitled, without the Purchaser’s prior written consent – which may not be unreasonably withheld – to assign its claims against the Purchaser or to have them collected by third parties.

IV. Notice of Defects, Transfer of Risk

The time at which risk passes shall be determined in accordance with the agreed delivery terms pursuant to Incoterms 2020. In the absence of such an agreement, risk shall pass to the purchaser upon proper handover of the goods at the agreed place of delivery. In the case of machines|devices and technical equipment, the transfer of risk shall not take place until the purchaser has confirmed acceptance.
The Purchaser must give written notice of any obvious defects in the delivery within a period of 5 calendar days. Hidden, non-apparent defects must be reported in writing within a maximum period of 14 calendar days after discovery, provided business is conducted in the ordinary course. In all other respects, Section 377 of the German Commercial Code (HGB) is excluded.
Payments made by the Supplier do not constitute a waiver of the right to make a complaint.

V. Confidentiality

The contracting parties undertake to treat all commercial and technical information that comes to their knowledge through their business relations as trade secrets, insofar as such information is not in the public domain.
Drawings, models, templates, samples and similar items must not be disclosed to unauthorised third parties or otherwise made accessible to them; they may only be reproduced for the purpose of fulfilling the contract and may only be disclosed to the extent necessary and only to those persons who require this information in the course of fulfilling the contract. Copyright provisions must be observed in this regard.
Subcontractors must be bound by these obligations accordingly.
The Supplier may only use its business relationship for advertising purposes with the prior written consent of the Purchaser.

VI. Delivery Dates and Deadlines

Agreed dates and time limits are binding. Compliance with the delivery date or time limit shall be determined by the date on which the goods are received by the Purchaser.
If the supplier has reason to believe that they will be unable to fulfil their obligations in whole or in part, or on time, they are obliged to inform the purchaser of this without delay.

VII. Delay in Delivery

In the event of a delay in delivery, the supplier shall be obliged to compensate the purchaser for any loss incurred as a result of the delay. This applies in particular to additional freight costs, retrofitting costs, replacement purchases and losses arising from business interruption (this list is not exhaustive).
Any contractual penalty agreed for delay in delivery or performance remains unaffected in accordance with Section 340(II) of the German Civil Code (BGB). If a contractual penalty has been agreed, it may be claimed at any time up to the due date of the final payment, without it being necessary to reserve the right to enforce the penalty in accordance with Section 341(3) of the German Civil Code (BGB).
The unconditional acceptance of a delayed delivery or service does not constitute a waiver of the claims to which the customer is entitled on account of the delayed delivery or service.

VIII. Price Adjustments

Contractually agreed prices are fixed for the duration of the contract – defined by duration or quantity. Calculation errors, price changes for intermediate products or services, changes in the production process, etc., do not entitle the supplier to make price adjustments. In the case of volatile intermediate products, the supplier must hedge its procurement costs by taking specifically designed measures.
Price adjustments resulting from legislative changes during the contract term entitle the supplier to pass on the resulting additional costs to the prices. The pass-on may expressly only include the additional costs incurred as a result of the legislative change. Administrative costs, ancillary costs, etc. must not form part of the adjustment.

IX. Quality, Documentation and Environmental Protection

The supplier must comply with recognised engineering standards, safety regulations and the agreed technical specifications for its deliveries. Any changes to the goods to be supplied by the supplier require the prior written consent of the purchaser.
Where safety data sheets are required for hazardous substances, operating materials and auxiliary materials, the supplier must enclose these free of charge with the order confirmation upon the initial order. In the event of changes to the safety data sheets, the Supplier is also obliged to send the latest version to the Purchaser without delay and without being specifically requested to do so.
If the nature and scope of the tests, as well as the testing equipment and methods, have not been agreed between the Supplier and the Purchaser, the Purchaser shall, at the Supplier’s request and within the limits of its knowledge, experience and capabilities, be prepared to discuss the tests with the Supplier in order to determine the required standard of testing technology in each case. Furthermore, the purchaser shall, upon request, inform the supplier of the relevant safety regulations.
The Supplier undertakes to ensure that all items and products offered or supplied by it, as well as their method of manufacture, comply not only with the Purchaser’s specifications but also with the applicable standards and current environmental legislation and regulations.
The Supplier undertakes, should more environmentally friendly alternative products to the items to be supplied be available, to present these to the Purchaser and to offer them upon request.
The Supplier undertakes to comply with road traffic regulations and environmental legislation when using the premises (Weinstadt and Schnelldorf plants) and to instruct its carriers or subcontractors accordingly.

X. Material defects and spare parts

The Supplier warrants that its delivery and/or service is free from defects in materials and/or workmanship or any other material defects. The Supplier further warrants that its goods and/or services are free from defects that impair their value or suitability for normal or contractually required use.
The Supplier shall, upon request, remedy any defects arising during the warranty period without delay and free of charge, including all associated costs, by repair or – at the Purchaser’s discretion – by replacement and subsequent delivery.
If the defect is discovered by the Purchaser before production (processing or installation) commences, the Supplier shall have the opportunity, at its own expense, to sort out the defective goods and/or rectify them, unless this is unreasonable for the Purchaser. If the Supplier is unable to do so or fails to comply with the Purchaser’s request in this regard without delay, the Purchaser may withdraw from the contract to that extent and return the goods at the Supplier’s risk and expense. In the event of imminent danger, the purchaser is entitled, in order to avert disproportionate economic loss and/or to avert risks to life, limb or bodily injury, to carry out the rectification themselves or have it carried out by a third party. Any costs arising therefrom shall be borne by the supplier.
If the same goods are repeatedly delivered with defects, the purchaser shall be entitled, following a written warning, to withdraw from the contract in respect of the unfulfilled optional scope of delivery in the event of a further defective delivery.
The limitation period for the purchaser’s claims and rights arising from defects in the delivery and performance – regardless of the legal basis – is 3 years from the date of handover to the purchaser. This period also applies insofar as the claims are not related to a defect. With regard to a defect giving rise to subsequent performance, the limitation period shall recommence upon completion of the subsequent performance measures. Longer statutory limitation periods remain unaffected, as do further provisions concerning the suspension of the limitation period, the interruption of the limitation period and the recommencement of limitation periods.
Where and to the extent that the Supplier has given a guarantee regarding the characteristics or durability of the goods, the Supplier shall be liable regardless of fault, and the Purchaser shall be entitled to assert these claims alongside and in addition to the statutory and/or contractual warranty provisions. In this case, the guarantee also covers all material defects in the product that can be proven to be attributable to defects in materials or workmanship.

XI. Legal defects

The Supplier warrants that the goods are free from third-party rights and that the delivery does not infringe any third-party rights. The Supplier indemnifies the Purchaser and its customers against all claims arising from the use of such intellectual property rights.
Clauses IX.2 to 6 shall apply mutatis mutandis to claims arising from defects of title.
The Supplier shall not be liable for legal defects if and insofar as the Supplier has manufactured the goods in accordance with drawings, models or other equivalent descriptions or specifications provided by the Purchaser, and where it can be proven that the Supplier was not aware, nor was it required to be aware in connection with the products it developed, that such intellectual property rights were being infringed.
The contracting parties undertake to inform one another without delay of any risks of infringement that come to light and of alleged cases of infringement, and to give one another the opportunity to counter such claims by mutual agreement.
The Supplier shall inform the Purchaser of the use of published and unpublished proprietary and licensed intellectual property rights and applications for intellectual property rights relating to the delivery item.

XII. Liability

Unless otherwise agreed in writing in an individual contract between the parties, liability shall be governed exclusively by the statutory provisions.
The Purchaser shall inform the Supplier immediately and in full should it wish to make a claim against the Supplier in accordance with the above provisions.
The Purchaser shall also be released from its obligation to accept or take delivery of the goods and shall be entitled to withdraw from the contract if the delay in delivery or performance is not attributable to the Supplier and the delivery or performance is no longer of any use to the Purchaser.

XIII. Product Liability

The Supplier is obliged, upon first request, to indemnify the Purchaser against any liability towards third parties or against claims by third parties arising from the manufacture, delivery, storage or use of the goods delivered or the services provided. This indemnity obligation shall not apply insofar as the claim is based on a grossly negligent or intentional breach of duty by the Purchaser.
The Supplier shall ensure that the delivered products are covered by the insured risk under the public liability and product liability insurance.
Any claims for damages by the Purchaser arising from product liability remain unaffected by this provision and are independent of the existence and/or validity of the required insurance.

XIV. Production equipment and confidential information provided by the Purchaser

Models, moulds, templates, samples, tools and other production equipment, as well as confidential information, which are made available to the Supplier by the Purchaser or paid for in full by the Purchaser, may only be used for deliveries to third parties with the Purchaser’s prior written consent.
Any tools, moulds or similar items provided by the Purchaser or manufactured by the Supplier, in whole or in part, at the Purchaser’s expense shall remain the property of the Purchaser at the respective stage of processing. They must be carefully stored by the Supplier and handled with care and due diligence. Any repairs to such items that are not due to normal wear and tear of the tool or mould shall be borne by the Supplier.

XV. General Provisions

If one party suspends payments or if an application is made for insolvency proceedings in respect of its assets or for judicial or out-of-court composition proceedings, the other party shall be entitled to terminate the contractual relationship with immediate effect, without any claims being enforceable in respect of the unfulfilled part.
Insofar as these Terms and Conditions of Purchase do not contain any provisions, the statutory provisions shall apply.
Should any provision of these Terms and Conditions or of any further agreements entered into be or become invalid, this shall not affect the validity of the contract and these Terms and Conditions in all other respects. The contracting parties are obliged to replace the invalid provision with a provision that comes as close as possible to it in terms of economic effect. Until such a provision is agreed, the law shall apply.
The law of the Federal Republic of Germany shall apply exclusively, unless otherwise agreed. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 is excluded.
The place of performance and the point at which risk passes shall be the place of receipt specified by the purchaser.
The place of jurisdiction shall be the purchaser’s registered office or the competent court there.

The customer is entitled to process the personal data relating to the conclusion and performance of the contract for their own purposes in accordance with the statutory provisions.

CEMO GmbH | In den Backenländern 5 | 71384 Weinstadt
CEMO GmbH | Kappelweg 2 | 91625 Schnelldorf