General Terms and Conditions of Purchase of Graphite Materials GmbH (hereinafter referred to as “Graphite Materials”)
Status: April 18, 2019
§ 1 General, scope of application
(1) The following General Terms and Conditions of Purchase apply to all business relationships with all business partners and suppliers of Graphite Materials (hereinafter referred to as “Seller”). They shall only apply to persons who, when concluding the contract, are acting in the exercise of their commercial or independent professional activity (entrepreneurs) and to legal entities under public law and special funds under public law.
(2) The GPC apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as “Goods”), irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers (Sections 433, 651 BGB). The GPC shall also apply in their respective version as a framework agreement for future contracts for the sale and/or delivery of movable goods with the same seller, without us having to refer to them again in each individual case; in this case, we shall inform the seller immediately of any changes to our GPC.
(3) These General Terms and Conditions of Purchase shall apply exclusively to our orders. Any conflicting terms and conditions of sale or delivery are hereby expressly rejected. Amendments or supplements to these Terms and Conditions of Purchase shall only be binding if they are expressly confirmed in writing by Graphite Materials.
(4) Individual agreements made with the Seller in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GPC. A written contract or our written confirmation shall be authoritative for the content of such agreements.
(5) Legally relevant declarations and notifications to be made to us by the Seller after conclusion of the contract (e.g. setting of deadlines, reminders, declaration of withdrawal) must be made in writing to be effective.
(6) References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GPC.
§ 2 Conclusion of contract
(1) Our order shall be deemed binding at the earliest upon written submission or confirmation. The Seller shall notify us of obvious errors (e.g. typing and calculation errors) and incompleteness of the order, including the order documents, for the purpose of correction or completion before acceptance; otherwise the contract shall be deemed not to have been concluded.
(2) Each order must be confirmed without delay, at the latest within a period of 5 days or – if a different indication is noted on the order – by the specified date, stating our order data, the binding delivery date and a binding fixed price. In the event of late acceptance, we are entitled to cancel the order within a period of 3 days after receipt of the late acceptance.
(3) The delivery dates stated in the order are binding; if the supplier does not reject the order immediately after receipt, the order and the stated delivery date shall be deemed accepted.
(4) The supplier is not entitled to pass on the order to third parties without our prior written consent.
§ 3 Prices, invoicing, terms of payment
(1) Only the prices agreed in the order shall be valid. All prices include statutory value added tax, unless this is shown separately. Unless special agreements have been made, the price shall include all services and ancillary services of the Seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transportation costs, including any transportation and liability insurance). The Seller shall return packaging material upon request.
(2) The agreed price shall be due for payment within two months of complete delivery and performance (including agreed acceptance) and receipt of a proper invoice. Invoices without our order number will not be processed. In the case of disputed invoices, the date of receipt of the corrected invoice shall be decisive.
(3) Unless expressly agreed otherwise, payments shall be made by Graphite Materials within 14 days after receipt of the delivery and after receipt of the invoice with a 3% discount or within 30 calendar days with a 2% discount or after two months strictly net, in each case at our discretion.
(4) The statutory provisions shall apply to the occurrence of our default, whereby a written reminder by the Seller shall be required in any case.
(5) If delivery is made earlier than agreed, the payment period shall only commence on the day on which the delivery/service would have been due.
(6) If, in exceptional cases, no prices are stated, the supplier’s list prices announced at the time of the order shall apply with the above-mentioned deductions.
(7) Payments do not mean that we accept the delivery or service as being in accordance with the contract.
(8) We shall be entitled to rights of set-off and retention as well as the defense of non-performance of the contract to the extent permitted by law. As long as defects in the delivery and service have not been completely eliminated, we shall be entitled to retain the invoice amount up to the full amount.
(9) The Seller shall only have a right of set-off or retention on the basis of legally established or undisputed counterclaims.
§ 4 Delivery time and dates
(1) Agreed dates and deadlines are binding. If the delivery time is not specified in the order and has not been agreed otherwise, it shall be 4 weeks from conclusion of the contract. The Seller shall be obliged to inform us in writing or in text form if it is unlikely to be able to meet agreed delivery times – for whatever reason.
(2) Default occurs without a reminder. The date of receipt of the goods by us shall be decisive for compliance with the delivery date or the delivery period, unless another shipping address is specified.
(3) If the Seller fails to perform or fails to perform within the agreed delivery period or is in default, our rights – in particular withdrawal or damages – shall be determined in accordance with the statutory provisions. The following provisions shall remain unaffected.
(4) We shall be entitled to compensation for all additional costs incurred by us as a result of delayed deliveries or services for which the Seller is responsible. Acceptance of the delayed delivery or service shall not constitute a waiver of claims for compensation.
(3) In the event of non-compliance with the agreed delivery time in accordance with § 4 (4), we may – in addition to further statutory claims – claim lump-sum compensation for our damage caused by delay in the amount of 0.1% of the net price per completed working day, but not more than a total of 5% of the net price of the delayed order amount. We reserve the right to prove that we have incurred higher damages. The seller reserves the right to prove that we have incurred no damage at all or only significantly less damage.
§ 5 Performance, delivery, transfer of risk, default of acceptance
(1) Without our prior written consent, the Seller shall not be entitled to have the performance owed by it rendered by third parties (e.g. subcontractors). The Seller shall bear the procurement risk for its services unless otherwise agreed in individual cases (e.g. sale of goods in stock).
(2) Delivery within Germany shall be “free domicile” to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, delivery shall be made to our registered office in Oberasbach. The respective place of destination is also the place of performance (obligation to be performed at creditor’s domicile).
(3) The delivery must be accompanied by a delivery bill stating the date (issue and dispatch), the contents of the delivery (article number and quantity) and our order identification (date and number). If the delivery bill is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment.
(4) A corresponding dispatch note with the same content must be sent to us separately from the delivery bill.
(5) The risk of accidental loss and accidental deterioration of the goods shall pass to us upon handover at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly in the event of acceptance. If we are in default of acceptance, this shall be deemed equivalent to handover or acceptance.
(6) The statutory provisions shall apply to the occurrence of our default of acceptance. However, the Seller must also expressly offer us its performance if a specific or determinable calendar time has been agreed for an action or cooperation on our part (e.g. provision of material). If we are in default of acceptance, the Seller may demand compensation for its additional expenses in accordance with the statutory provisions (Section 304 BGB). If the contract relates to a non-fungible item to be manufactured by the Seller (individual production), the Seller shall only be entitled to further rights if we have undertaken to cooperate and are responsible for the failure to cooperate.
§ 6 Confidentiality and retention of title
(1) We reserve ownership rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents shall be used exclusively for the contractual performance and shall be returned to us after completion of the contract. The documents must be kept secret from third parties, even after termination of the contract. The confidentiality obligation shall only expire if and insofar as the knowledge contained in the documents provided has become generally known.
(2) The above provision shall apply accordingly to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items that we provide to the Seller for production. Such items shall – as long as they are not processed – be stored separately at the Seller’s expense and insured to a reasonable extent against destruction and loss.
(3) Any processing, mixing or combining (further processing) of items provided by the Seller shall be carried out on our behalf. The same shall apply in the event of further processing of the delivered goods 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 us must take place unconditionally and without regard to the payment of the price. If, however, in individual cases we accept an offer of the seller to transfer ownership conditional upon payment of the purchase price, the seller’s reservation of title shall expire at the latest upon payment of the purchase price for the delivered goods. We remain authorized to resell the goods in the ordinary course of business even before payment of the purchase price with advance assignment of the resulting claim (alternatively validity of the simple retention of title extended to the resale). This excludes all other forms of retention of title, in particular the extended retention of title, the forwarded retention of title and the retention of title extended to further processing.
§ 7 Warranty, notification of defects, obligation to inspect and give notice of defects
(1) The statutory provisions shall apply to our rights in the event of material defects and defects of title of the goods (including incorrect and short delivery as well as improper assembly, defective assembly, operating or operating instructions) and in the event of other breaches of duty by the Seller, unless otherwise specified below.
(2) In accordance with the statutory provisions, the Seller shall be liable in particular for ensuring that the goods have the agreed quality upon transfer of risk to us. In any case, those product descriptions, technical specifications, operating values, operating points and performance data specified by the Seller which – in particular by designation or reference in our order – are the subject of the respective contract or have been included in the contract in the same way as these GPC shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from us, the seller or the manufacturer.
(3) Notwithstanding § 442 para. 1 sentence 2 BGB, we shall also be entitled to claims for defects without restriction if the defect remained unknown to us upon conclusion of the contract due to gross negligence.
(4) The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial obligation to inspect and give notice of defects, with the following proviso: Our obligation to inspect is limited to defects which become apparent during our incoming goods inspection under external examination including the delivery documents as well as during our quality control in the random sampling procedure (e.g. transport damage, incorrect and short delivery). If acceptance has been agreed, there is no obligation to inspect. Otherwise, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case.
Our obligation to give notice of defects discovered later remains unaffected. In all cases, our complaint (notification of defects) shall be deemed immediate and timely if it is received by the seller within 3 working days.
(5) The costs incurred by the Seller for the purpose of inspection and rectification (including any removal and installation costs) shall be borne by the Seller even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request to remedy defects shall remain unaffected; in this respect, however, we shall only be liable if we recognized or were grossly negligent in not recognizing that there was no defect.
(6) If the Seller does not fulfill its obligation to provide subsequent performance – at our discretion by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery) – within a reasonable period of time set by us, we may remedy the defect ourselves and demand reimbursement of the necessary expenses or a corresponding advance payment from the Seller. If subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the Seller of such circumstances immediately, if possible in advance.
(7) We shall be entitled to remedy defects at the supplier’s expense after prior notification if the immediate remedy of defects is justified by a special interest on our part or if it is to be feared that the remedy of defects by the supplier would cause higher costs than the remedy of defects by us or the remedy of defects by the supplier would result in delays which would make it more difficult for us to fulfill our obligation towards our contractual partner.
(8) Otherwise, in the event of a material defect or defect of title, we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, we shall be entitled to compensation for damages and expenses in accordance with the statutory provisions.
(9) We may return goods not delivered in accordance with the contract at the expense and risk of the seller.
(10) In the event of a breach of duty going beyond the delivery of defective goods (e.g. a duty to inform, advise or inspect), Graphite Materials may demand compensation for the resulting consequential damage caused by the defect
(11) We are entitled to compensation for all damages caused to us by the supplier in connection with the delivery. This applies in particular to useless material and wages expended as a result of hidden defects, as well as increased costs for meeting our own delivery dates and other consequential damages. This obligation to pay compensation shall not apply if the supplier proves that it is not at fault, unless it is liable under statutory provisions even if it is not at fault.
(12) If the replacement of an entire series of contractual items or our products in which contractual items have been installed is necessary due to a serial defect, for example because a fault analysis is uneconomical, not possible or not reasonable in individual cases, the Seller shall also reimburse the costs with regard to the part of the affected series that does not have a technical defect.
(13) The Seller shall be obliged to deliver the ordered goods free of third-party rights and to indemnify Graphite Materials against third-party legal claims in respect of the goods to be delivered.
§ 8 Supplier recourse
(1) We shall be entitled to our statutory rights of recourse within a supply chain (supplier recourse pursuant to Sections 478, 479 BGB) without restriction in addition to the claims for defects. In particular, we are entitled to demand exactly the type of subsequent performance (rectification or replacement delivery) from the Seller that we owe to our customer in the individual case. Our statutory right to choose (§ 439 para. 1 BGB) is not restricted by this.
(2) Before we acknowledge or fulfill a claim for defects asserted by our customer (including reimbursement of expenses pursuant to §§ 478 para. 3, 439 para. 2 BGB), we shall notify the Seller and request a written statement, briefly explaining the facts of the case. If the statement is not made within a reasonable period of time and if no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer; in this case, the seller shall be responsible for providing evidence to the contrary.
(3) Our claims arising from supplier recourse shall also apply if the goods have been further processed by us or one of our customers, e.g. by incorporation into another product, prior to their sale to a consumer.
§ 9 Producer liability
(1) If the seller is responsible for product damage, he shall indemnify us against third-party claims to the extent that the cause lies within his sphere of control and organization and he himself is liable in relation to third parties. He shall bear all costs arising from manufacturer’s liability, including any recall costs. The seller shall also be liable for damage attributable to missing or inadequate safety measures.
(2) Within the scope of its indemnification obligation, the Seller shall reimburse expenses pursuant to Sections 683, 670 BGB arising from or in connection with claims asserted by third parties, including product recalls carried out by us. We shall inform the Seller of the content and scope of recall measures – as far as possible and reasonable – and give him the opportunity to comment. Further legal claims remain unaffected.
(3) The Seller undertakes to take out and maintain appropriate business and product liability insurance and to provide us with a confirmation of insurance.
§ 10 Statute of limitations
(1) The reciprocal claims of the contracting parties shall become time-barred in accordance with the statutory provisions, unless otherwise stipulated below.
(2) Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims for defects is 3 years from the transfer of risk. If acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year limitation period shall also apply accordingly to claims arising from defects of title, whereby the statutory limitation period for third-party claims in rem for restitution (§ 438 para. 1 no. 1 BGB) shall remain unaffected; claims arising from defects of title shall not become time-barred in any case 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 of sales law, including the above extension, shall apply – to the extent permitted by law – to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (§§ 195, 199 BGB) shall apply, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.
§ 11 Final provisions
(1) These GTP and all legal relationships between Graphite Materials and the Seller shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The conditions and effects of the retention of title shall be subject to the law of the respective location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective.
(2) If the Seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office in Oberasbach. However, Graphite Materials shall also be entitled to bring an action at the place of performance of the delivery obligation.
