General Terms and Conditions of Purchase of PMA/TOOLS AG
As of: 01/2022
§ 1 General Provisions
- For all orders of products and purchase of services of any kind from PMA/TOOLS AG (hereinafter: “Customer”) and the supplier, the following terms and conditions of purchase apply exclusively. In the following, contractors, service providers and other contractual partners are also referred to as supplier.
- The customer does not recognize any conditions of the supplier that conflict with or deviate from these terms and conditions of purchase unless he expressly agrees to their validity in writing. If the customer accepts the delivery/service without express objection, the acceptance of deviating conditions cannot be derived from this.
- The customer’s terms and conditions of purchase also apply to all future transactions with the supplier, even if they are not expressly agreed again. The order and the general terms and conditions of purchase of PMA/TOOLS are deemed to have been accepted by the supplier in their entirety and without any changes if the supplier accepts an order in writing or by means of electronic data traffic or begins to provide the goods or services that are the subject of the order.
- The execution of the order is considered acceptance of these conditions.
- All agreements made between the customer and the supplier for the purpose of executing the contract must be recorded in writing. Verbal agreements require written confirmation.
- Payments or compensation for visits or the preparation of offers, projects, plans, etc. are not granted by the customer even if no order is placed. Agreements to the contrary can be made in writing if the costs are specified in terms of time and matter.
§ 2 Order and Order Confirmation
- The order number or customer name shown on the order must be stated in all correspondence. PMA/TOOLS is not responsible for delays resulting from non-compliance with this obligation.
- The technical documents, drawings, article geometries, factory specifications and other information provided by the customer that accompany the orders are an integral part of the orders. If the supplier is responsible for development and/or drawing, he must deliver these documents to PMA/TOOLS without being requested to do so, no later than 14 business days after receipt of a written request from PMA/TOOLS.
- The customer may revoke the order if the supplier has not accepted it in writing within a period of one week after receipt (order confirmation).
- If the order confirmation deviates from the order, the customer is only bound if he has agreed to the deviation in writing. The acceptance of deliveries or services as well as payments do not constitute approval.
- The transfer of orders to third parties is not permitted without the written consent of the customer and entitles the customer to withdrawal from the contract in whole or in part, and to demand compensation for the costs of re-awarding the order and the additional costs of order processing. If the customer agrees, the third party shall be deemed to be the supplier’s vicarious agent.
- Changes or additions to the order are only effective if they have been confirmed in writing by the customer. Should there be any concerns on your part about our desired type of execution (professional or technical), this must be communicated immediately in writing.
§ 3 Prices
- The price stated in the order is binding. Price increases are only permissible if written agreements on the price have been made between the contracting parties and the necessity of the price increases can be explained in a precise and comprehensible manner. Price increases must be communicated no later than six weeks before the end of the quarter.
- The agreed prices apply plus applicable statutory VAT. Unless otherwise agreed in writing, the price includes delivery “free domicile.” The transport, shipping and packaging costs are at the expense of the supplier. The return of the packaging requires special agreements. Inquiries about the type and origin of the packaging must be delivered within 14 business days if requested by PMA/TOOLS.
- In the case of pricing ex works or ex the supplier’s sales warehouse, shipping must be at the lowest cost in each case, unless the customer has stipulated a specific mode of transport. Additional costs due to non-compliance with shipping instructions shall be borne by the supplier.
§ 4 Delivery
- As part of the delivery and transport of hazardous substances within the meaning of Section 2 Subsection 1 GGBefG [Hazardous Material Transportation Act] or the following legal regulations and any statutory ordinances, the contractor undertakes to comply with the statutory provisions. The supplier undertakes to respond to any request from PMA/TOOLS in writing within seven business days.
- Excess and partial deliveries are not permitted unless PMA/TOOLS has expressly agreed to them in writing in individual cases. The acceptance of excess or partial deliveries does not constitute approval.
- All documents required for acceptance, operation, maintenance and repairs, in particular test reports, tool certificates, drawings, plans, operating instructions and repair manuals, must be supplied by the contractor free of charge in a reproducible form.
- Our acceptance of goods is open Monday to Thursday from 8.00 a.m. to 4.00 p.m. and Friday from 8.00 a.m. to 3.00 p.m.
§ 5 Delivery time, delay in delivery
- The delivery time specified in the order is binding and, unless a fixed date has been agreed, begins on the date of the order. The date of receipt at the shipping or delivery address specified by us applies to the timeliness of the delivery.
- The supplier is obligated to inform the customer immediately in writing, stating the reasons and the expected duration of the delay, if circumstances arise or become apparent to him which indicate that the supplier is not able to fulfil his contractual obligations in whole or in part, or not in good time. If the supplier fails to do so, he cannot invoke the impediment to the customer.
- If the supplier does not comply within the agreed delivery time or by a specific fixed date, the customer is entitled to a contractual penalty of 0.2% for each started calendar day in which the supplier is in default, but no more than 10% of the total delivery or service value. Further legal claims remain unaffected. In addition to the contractual penalty, the customer may demand compensation for any direct or indirect damage resulting from the delay in delivery, including consequential damage. The agreed contractual penalty exists independently in addition to any claims for damages. The contractual penalty will be offset against the claim for damages.
- The unconditional acceptance of a late delivery or service does not constitute a waiver of the claims to which we are entitled due to the late delivery or service; this applies until full payment is made of the fee owed by us.
- The contractual penalty can be asserted – in addition to the fulfilment – if the customer declares the reservation according to Section 341 Subsection 3 BGB [German Civil Code] to the supplier within 10 working days after receipt of the delayed delivery.
- A delivery made prematurely without our consent does not affect the payment deadlines linked to the agreed delivery dates.
§ 6 Transfer of Risk
- The risk is transferred with the delivery “free domicile,” unless otherwise agreed in writing.
- In the case of delivery with installation or assembly and in the case of services, the risk is transferred upon acceptance, in the case of delivery without installation or assembly upon receipt at the receiving point specified by the customer.
§ 7 Force Majeure
- Cases of force majeure release the contractual partners from their performance obligations for the duration of the disruption and to the extent of its effect. The contractual partners are obligated to provide the necessary information immediately and within reasonable limits and to adjust their obligations to the changed circumstances in good faith.
- In cases of force majeure and events beyond our control, we are also entitled – without prejudice to our other rights – to withdraw from the contract in whole or in part, provided that these events are not of insignificant duration and our need is significantly reduced due to the need to procure elsewhere or our interest in the delivery is completely lost as a result.
- A force majeure event on the part of the supplier cannot be a lack of personnel, production materials or resources, strike, breach of contract by third parties engaged by the supplier, financial problems of the supplier, nor the inability to obtain the necessary licenses for the software to be delivered or to obtain the necessary legal or official approvals or authorizations for the goods or services to be delivered.
§ 8 Inspection of Defects and Warranty/Liability for Material Defects
- The supplier guarantees that all deliveries and services have the agreed quantity and quality. As soon as the supplier becomes aware of or develops a more recent state of the art with regard to the delivered products, the customer must be informed of this fact immediately and, if possible, a conversion to the latest state of the art must be carried out. The supplier must comply with the relevant national and international legal provisions, in particular with regard to the ban on child labour and the regulations and guidelines of authorities, professional associations and trade associations. If deviations from these regulations are necessary in individual cases, the supplier must obtain written consent from the customer. The supplier’s liability for defects is not restricted by this consent. If the supplier has reservations about the type of execution desired by the customer, he must inform the customer of this immediately.
- The supplier also guarantees to use environmentally friendly products and processes for his deliveries and services within the scope of the economic and technical possibilities. He is liable for the environmental compatibility of the delivered products and packaging materials and for all consequential damage caused by the violation of statutory disposal obligations. At the request of the customer, the supplier is obligated to issue a certificate of quality for the delivered goods.
- The warranty period is two years, unless expressly agreed otherwise. It begins with the handover of the delivery item to the customer or a third party named by him at the receiving or use point specified by the customer. If the goods received are delivered – individually or in a processed state – to customers of the customer, the period for hidden defects begins with the delivery to the respective customer. In these cases, however, claims for material defects become time-barred no later than 36 months after the delivery item has been handed over to the customer or a third party named by the customer.
- In the case of devices, machines and systems, the warranty period begins with the acceptance date specified by the customer in his written acceptance declaration. If the acceptance is delayed through no fault of the supplier, the warranty period is two years after the delivery item has been properly made available for the purpose of acceptance.
- For delivery parts that could not remain in operation during the investigation of a defect and/or the elimination of the defect, a current warranty period is extended by the time of the interruption in operation. For newly delivered parts, the warranty period begins anew when they are handed over. Any downtime that has occurred, which can be traced back to defects in the delivery/service, will be added to the warranty period.
- Goods are received in accordance with Section 377 HGB [German Commercial Code] subject to a subsequent goods receipt/quality control. The customer must check the delivery/service within a reasonable period of time for any deviations in quality or quantity in accordance with the circumstances of a proper course of business. Obvious defects must be reported to the supplier in writing immediately after discovery. Section 377 HGB applies, however, with the proviso that the complaint is timely if it is made within a maximum period of 14 days after receipt of the delivery by the customer. Hidden defects must be reported to the supplier in writing and a complaint must be made by the customer within 14 days of becoming aware of them at the latest.
- If there is a defect within the first six months from delivery, it is assumed that the defect was already present at the time of the transfer of risk.
- The customer is fully entitled to the statutory warranty claims. He is entitled to demand that the supplier remove the defect or deliver a new product, at his own discretion. In this case, the supplier is obligated to bear all expenses necessary for the purpose of remedying the defect or new delivery or new production. The customer expressly reserves the right to withdraw from the contract or to reduce the price, as well as to claim damages or reimbursement of expenses incurred in vain.
- If the supplier does not meet his obligation from the liability for defects within the reasonable period set by the customer, the customer can take the necessary measures himself or have them taken by third parties at the expense and risk of the supplier. In urgent cases, the customer can, in consultation with the supplier, carry out the repair himself or have it carried out by a third party.
- Small defects can be remedied by the customer himself – in fulfilment of his obligation to minimize damage – without prior agreement, without the supplier’s obligations arising from liability for defects being restricted as a result. In this case, the customer can charge the necessary expenses to the supplier. The customer has the same right in urgent cases and/or if there is a threat of unusually high damage. The customer decides at his best discretion whether such a case exists.
- The supplier is obligated to report claims for recourse to his sub-suppliers immediately after the customer has asserted them. Irrespective of this, the supplier’s own obligation towards the customer remains in force.
- The legal regulation (Section 478 BGB) applies to the right of recourse of the customer due to defective goods with the proviso that the customer is also entitled to the right of recourse if it is only a matter of a partial delivery and/or a purchase of consumer goods does not exist. Furthermore, the customer’s right of recourse expires at the earliest six months after the point in time at which we have fulfilled the claims of our customer.
§ 9 Product Liability – Release
- If claims are made against the customer for violation of official safety regulations or due to domestic or foreign product liability regulations or laws because of a defective product that can be traced back to the goods of the supplier, then the supplier is obligated to compensate the customer for the damage or to indemnify him insofar as the cause was set within his sphere of control and organization from claims for damages by third parties upon first request. The damage also includes the costs and expenses of a precautionary recall campaign as well as the necessary legal defence at home and abroad.
- The supplier must mark the delivery items in such a way that they are permanently recognizable as his products. He has to carry out quality assurance that is suitable in terms of type and scope and corresponds to the latest state of the art and to prove this to the customer upon request. If the customer deems it necessary, the supplier will enter into a corresponding quality assurance agreement.
§ 10 Intellectual Property Rights, Legal Defects
- The supplier is responsible for ensuring that no domestic or foreign industrial property rights or copyrights of third parties are violated in connection with his delivery, in particular through the manufacture, processing, use or resale of the goods offered and delivered and other services. Unless there is a contrary, individual contractual agreement.
- A limitation period of 10 years applies to legal defects.
- If claims are made against the customer by a third party for this reason, the supplier is obligated to release the customer from these claims on the first written request, insofar as the claims are justified. Irrespective of the merits of the claims, the supplier must provide all information required for an adequate legal defence.
- The supplier’s obligation to indemnify also extends to all expenses incurred by the customer from or in connection with claims by a third party, including the costs and expenses of a necessary legal defence at home and abroad.
- The customer is also entitled to obtain the necessary approvals for delivery, commissioning, use, etc. from the owner of the property rights at the expense of the supplier.
§ 11 Retention of Title, Tools, Molds, Samples, Provision of Materials
- We do not recognize extended retention of title. The same applies to contractual pledges of our claims against our customers as part of an extended retention of title.
- Materials provided remain the property of the customer and are to be stored, labelled and managed separately free of charge. Use is only permitted for orders from the customer. In the event of depreciation or loss, the contractor must provide a replacement immediately. A list of the materials is to be handed over to the customer upon request.
- Processing or transformation of the material by the supplier is done for the customer. If the reserved goods are processed with other items that do not belong to the customer, the customer acquires co-ownership of the new item in proportion to the value of the customer’s items to the other processed items at the time of processing.
- The customer reserves the right of ownership and copyright to all illustrations, cost estimates, drawings, samples, models, moulds, profiles, standard sheets, calculations, tools, etc. made for the supplier or made available to him. They may not be copied, duplicated or made accessible to third parties without the express written consent of the customer. They are to be used exclusively for production and contract processing for the customer. They must be secured against unauthorized inspection and use and kept secret from third parties. After the order has been processed, they must be returned to the customer free of charge without being asked to do so.
- Subject to further rights, the customer may demand the return if the supplier violates these obligations.
Basic information about tools
Tool costs, including pro rata tool costs, are to be charged neutrally, meaning without profit mark-ups as special direct costs to the buyer. Imputed security surcharges are also excluded with the enclosed terms and conditions of purchase. The manufacturing costs of the tool must correspond to the actual power consumption. Profit and cost recovery occurs solely through product manufacture.
- Tools owned by PMA/TOOLS:
a) The buyer’s tools are loaned to the supplier and remain the property of the buyer or his customer, unless otherwise agreed in writing.
b) The supplier may only use the tools for the production of goods within the framework of a supply contract with the buyer. The supplier may not use the tools for other or own purposes or permit third parties to use them without the prior written consent of the buyer.
c) The tools must be clearly marked as the property of the buyer or his customer. They are to be kept safe and separate from the supplier’s property. The supplier is obligated to maintain the tools in such a good and usable condition at his own expense that the quality of the parts to be manufactured from the tool and the output of the tool, taking into account the normal wear and tear of the tool, are guaranteed. The supplier bears the risk for the tools as long as they are in the custody or under the control of the supplier. The supplier insures the tools at his own expense and to an extent that covers replacement in the event of loss. The supplier hereby assigns to the buyer all of its claims for payment against the insurer and the buyer accepts this assignment. The supplier handles the tools carefully and gently. He indemnifies the buyer from any claims as well as from all costs and damage that may result from the installation, use, storage or improper repair of the tools. The buyer and/or his customer may enter the supplier’s premises at any time during normal business hours to inspect the tools and records of the tools there. At the request of the buyer, the supplier will carry out a physical inventory.
d) The buyer can demand his tools at any time. The same applies if the supplier is temporarily or permanently unable to deliver. If the buyer requests the handover, the supplier will provide the buyer with the tools for collection within five working days. At the request of the buyer, the supplier will also send the tools to a destination specified by the buyer against reasonable reimbursement of costs. The supplier has no right of retention to the tools. This does not apply if he withholds due to undisputed or titled claims.
- Tools of the PMA/TOOLS supplier:
a) If the buyer has assumed the tool costs proportionately and the supplier has assumed the remaining part of the tool costs, the supplier grants the buyer a 100% purchase right to the tools for the PMA/TOOLS scope of the supplier. If the buyer makes use of his purchase right, the purchase price is calculated as follows:
Original acquisition/manufacturing costs less depreciation for wear and tear and, if applicable, other depreciation up to the time the tool is handed over after the purchase right has been exercised. Depreciation for wear and tear is only taken into account if the supplier has received a known remuneration for this depreciation via the part price.If a portion of the tool costs is paid to the supplier, the purchase price of the tool is defined as the cost of the tool minus the portion of the tool costs that has been paid, minus the known remuneration for the purchased quantity.Under no circumstances may the purchase price exceed the market value (replacement costs for a used tool of the same type) at the time the purchase right is exercised. The purchase right does not exist if the supplier needs these tools for the manufacture of his other standard products, which is hereby excluded as a matter of principle. In addition, the supplier undertakes to provide maximum support to the buyer in the purchasing activities.
b) The supplier will provide the buyer with all technical information that the buyer needs for the installation, assembly and use of these tools; no later than 14 business days after receipt of a written request from PMA/TOOLS. The buyer may use and publish the technical information without restriction, subject to industrial property rights (e.g. patents) of the supplier. The buyer may only use design or production information that is subject to an intellectual property right of the supplier for his own purposes.
§ 12 Confidentiality
- All business or technical information made accessible to the supplier by us, as long as and insofar as it is not demonstrably public knowledge, must be kept secret from third parties. At no time may the supplier pass on business secrets, confidential information, knowledge, designs, data, know-how to third parties nor any other information considered confidential by the other party. The parties may not use or include such information for their own or third-party purposes, unless this is necessary to fulfil their obligations under this contract. The parties shall not acquire any rights in any specifications or other know-how of any kind of the other party and shall not reproduce, use or transmit in any form such specifications or know-how without the prior written consent of the other party, unless this is done for the purpose of fulfilling the supplier’s obligations under the contract.
- Upon request, the supplier must immediately and completely return to PMA/TOOLS or destroy all information originating from PMA/TOOLS (including any copies or recordings made) and items provided on loan.
- Products that are manufactured according to documents designed by PMA/TOOLS, such as drawings, models, recipes or the like, may not be used by the supplier for his own purposes, nor may they be offered or supplied to third parties.
§ 13 Liability/Insurances
- In order to cover the general liability risk, as well as all risks from product liability, including the risk of recalls, the supplier is obligated to take out liability insurance with sufficient coverage and to provide the customer with proof of coverage upon request. Otherwise the statutory provisions apply.
- Transport insurance is taken out exclusively by the supplier.
§ 14 Invoicing
- The invoice must be submitted separately after delivery has been made, stating the order and item number specified in the order.
- If the invoice is received later than the goods, the day of receipt of the invoice is decisive for the calculation of the discount period instead of the day of receipt of the goods. Unless partial deliveries have been expressly agreed, a total invoice must be issued for each order after complete delivery (invoice in duplicate).
- Claims against the customer may only be assigned with his written consent.
§ 15 Payments
- Unless otherwise agreed in writing, payments are made within 14 days with a 3% discount or 30 days net.
- The payment period begins as soon as the delivery or service has been rendered in full and the properly issued invoice has been received.
- Discount deduction is also permitted if the customer offsets or withholds payments in a reasonable amount due to defects; the payment period begins after the defects have been completely remedied.
- The customer is entitled to offsetting and retention rights to the extent permitted by law.
§ 16 Place of Performance, Applicable Law, Place of Jurisdiction, Partial Invalidity
- The place of performance for the deliveries and services is the receiving point specified by the customer. Unless otherwise stated in the order confirmation, the place of performance is our registered office. The law of the Federal Republic of Germany applies to these terms and conditions of purchase and the entire legal relationship between the customer and the supplier. Application of the United Nations Convention of April 11, 1980 on Contracts for the International Sale of Goods (CISG) is excluded.
- If the supplier 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 place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of PMA/TOOLS AG. The customer reserves the right to sue the supplier at his general place of jurisdiction.
§ 17 Compliance
- PMA/TOOLS AG attaches great importance to compliance with ethical standards and implements these standards in the company. These standards are based on the provisions of the United Nations Global Compact, the principles of which PMA/TOOLS is committed to. The principles include core values in the areas of human rights, labour standards, environmental protection and anti-corruption. In order to ensure the standards in the customer’s company, the supplier undertakes to recognize, support and put into practice the same standards. In particular, the supplier must support and respect the protection of international human rights within their sphere of influence. The supplier must ensure that human rights violations are prevented in their sphere of influence. Suppliers shall uphold freedom of association and the effective recognition of the right to collective bargaining and eliminate all forms of forced labour. Suppliers shall prevent child labour in all their supply chains. Suppliers shall promote the elimination of discrimination in employment. Suppliers shall also support a precautionary approach to dealing with environmental issues and take initiatives to promote greater environmental responsibility. The development and dissemination of environmentally friendly technologies should be promoted. Suppliers shall work against all forms of corruption, including extortion and bribery.
- Violations of the principles of the Global Compact lead to the termination of the contractual relationship as soon as the customer becomes aware of this, unless the immediate remedy of the violation is ensured.
§ 18 Severability Clause
- Should a provision in these terms and conditions of purchase or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements. In place of the invalid provision, a legally permissible provision is agreed that comes as close as possible to the economic purpose of the invalid provision.