1. Scope of Application
1.1 Our purchasing terms apply to all contracts and other agreements. Our purchasing terms apply exclusively. The content of our purchasing terms is deemed approved by the contracting partner unless we receive written objection to their effective inclusion within one week after sending the order confirmation or order. Our General Purchasing Terms shall in any case take precedence over conflicting provisions of the contracting partner and shall also apply if we have not expressly objected to such provisions. These purchasing terms shall also be expressly deemed agreed if our customer reserves written consent to terms and conditions. In this case, the reservation clause is mutually deemed void.
1.2 Our General Purchasing Terms shall also apply if we accept the supplier's delivery without reservation while being aware of conflicting or deviating terms and conditions of the supplier.
1.3 Our General Purchasing Terms shall expressly apply to all future contractual relationships with the supplier.
2. Contract
2.1 Our order alone shall be decisive for the scope and content of the delivery. Objections thereto must be made in writing by the contracting partner immediately, at the latest within 8 days from the date of issue. Later objections will not be considered legally, unless expressly stipulated otherwise by us in writing.
2.2 Only orders issued in writing or orally confirmed orders confirmed in writing shall be legally binding.
2.3 Reasonable changes to the subject matter of delivery after conclusion of contract due to technical innovations and improvements in design, dimensions, weight, material and form at our request are expressly reserved. In this respect, we are expressly entitled to make changes to the order ourselves. The supplier is only entitled to make changes if these have been previously approved by us in writing.
3. Ownership/Protection/Copyrights
3.1 We reserve all possible protection and property rights as well as copyrights to materials, tools, products, design documents, molds, samples, services, illustrations and other documents provided by us. Such documents and materials may only be reproduced or passed on to third parties with our express permission.
4. Confidentiality Obligation
4.1 Our contracting partner expressly undertakes to treat all commercial and technical details that are not generally known or obvious and which have become known to him through the business relationship with us as trade secrets.
4.2 A contractual penalty of €50,000 is agreed between the contracting parties for each violation of the confidentiality obligation.
5. Prices/Payment Terms
5.1 Our prices are - unless otherwise contractually agreed - ex works, including packaging, freight and customs. The price stated in the order is binding for the supplier. Statutory VAT is not included in the price.
5.2 The supplier bears the performance risk until delivery to us. The place of performance of the contract is agreed to be our registered office in Radevormwald, unless we give other instructions.
5.3 We will pay the purchase price - unless otherwise agreed in writing - within 20 days with 3% discount or within 60 days net, from delivery and receipt of invoice.
5.4 In the case of advance payment, we are entitled to demand appropriate security from the supplier, e.g. a first-demand bank guarantee from a German credit institution.
6. Delivery Time/Delivery Delay
6.1 The delivery period specified in the order is agreed as a fixed date.
6.2 In the event of delivery delay, we are entitled to demand standardized delay damages of 5% of the delivery value per completed week, but not more than 15% of the total delivery value.
To the extent that we are obliged under contractual arrangements with our customers to pay contractual penalties due to the supplier's delay, we are entitled to invoice these damages to the supplier in addition, even if the supplier was not previously informed about the contractual penalties. Further legal claims remain expressly reserved.
6.3 In the event of premature delivery by the supplier, we reserve the right to either return the goods at the supplier's cost and risk or to store the goods until the delivery date at the supplier's cost and risk.
6.4 For the proper receipt of goods, the goods inspection at our premises shall be used as the basis for assessment.
6.5 Reusable packaging will be returned to the supplier carriage forward and shall be credited at full invoice value. Charges for other packaging materials such as paper, wood wool and the like by the supplier are expressly excluded. The supplier's packaging must comply with applicable environmental regulations.
7. Defects
7.1 Whether a defect exists or not is determined exclusively by statutory provisions excluding agreements on quality or intended use. A notice of defect regarding obvious defects shall be deemed timely if given to the supplier within a period of 30 working days after receipt by us. Proof of dispatch by us shall suffice as proof of the notice of defect. §§377, 378 HGB are otherwise excluded.
7.2 The supplier is obliged to remedy defects in the delivered goods at his own cost immediately at our option by replacement delivery or rectification. If the supplier fails to fulfill his obligation to remedy the defect after a statutory grace period of 7 days set by us (dispatch shall serve as proof), we are entitled to assert the statutory warranty rights. Setting a grace period for subsequent performance does not implicitly constitute setting a new delivery date. Delay damages are therefore expressly reserved during this period.
8. Liability for Material Defects
8.1 Independently of statutory claims for material defects, the supplier shall bear the costs incurred for defect rectification or replacement delivery. The liability period for material defects for rectified or replacement goods begins anew after successful rectification or replacement delivery.
8.2 The liability period for material defects is 60 months from transfer of risk for all delivered systems. The supplier is aware that the systems are operated by us in 3-shift operation. Transfer of risk only becomes legally effective if our order number is exactly indicated on all shipping documents and delivery notes and we have accepted the goods. If this is not expressly noted, any delays in processing are not our responsibility.
9. Retention of Title
To the extent that we provide parts, samples, molds etc. to the supplier, we expressly reserve title thereto. Processing or transformation by the supplier is carried out for us. In the event of processing or mixing, we acquire co-ownership of the new items in proportion to the value of our item to the other processed items at the time of processing. The co-ownership is hereby effectively assigned to us.
10. Liability
10.1 In the event of claims against us due to product liability by third parties, the supplier is obliged to indemnify us if the damage was caused by goods supplied by the supplier. In the case of fault-based liability, however, this only applies if the supplier is at fault.
10.2 To the extent that we are obliged to bear downtime costs, costs of a recall campaign or contractual penalties to the third party, the supplier is obliged to indemnify us from such claims if the damage was caused by goods supplied by the supplier.
10.3 If the cause of the claims asserted by the third party lies within the supplier's area of responsibility, he bears the burden of proof that the damage was not caused by him. The presumption of damage shall generally apply to the detriment of the supplier. In these cases, the supplier shall bear all costs and expenses, including the costs of any legal proceedings or recall campaign.
10.4 In all cases where we are obliged to pay damages or compensation for expenses contrary to the above conditions on the basis of contractual or statutory grounds for claims, we shall only be liable if intent, gross negligence or injury to life, body or health is attributable to us, our senior employees or vicarious agents. Any liability irrespective of fault under the Product Liability Act remains unaffected. This shall not affect any liability for culpable breach of essential contractual obligations. Liability is, however, limited in this respect to the foreseeable damage typical for the contract, except in the cases of sentence 1. The above provisions in this paragraph do not involve any change in the burden of proof to the detriment of our supplier. In all other respects, our liability towards the supplier is excluded.
11. Recourse
11.1 To the extent that we are subject to recourse by our customers pursuant to §§478, 479 BGB, the limitation period for claims for material defects pursuant to these provisions and, to the extent not otherwise regulated, pursuant to statutory provisions against the supplier due to the defect shall commence at the earliest 4 months after the time at which we have fulfilled our customer's claims. This suspension of expiry shall end at the latest 10 years after the time at which the supplier delivered the goods to us.
11.2 §478 para. 4 BGB is agreed to the extent that exclusion or limitation of the claim for damages shall not take place. The granting of equivalent compensation by the supplier pursuant to §§478 BGB is also expressly excluded.
12. Withdrawal
12.1 In the event of an important reason, we are entitled to withdraw from the contracts. An important reason exists on our part in particular if:
a) the supplier is in default of delivery for more than 5 days.
b) in the absence or loss of creditworthiness or insolvency of the supplier, provided that the supplier does not perform his part of the service or provide sufficient security within a grace period to be set against our services. The supplier is obliged to perform in advance in this respect.
c) in the event of operational disruptions due to force majeure or other obstacles not caused by us, such as riots, strikes or lockouts.
12.2 In all cases in which we are entitled to withdraw pursuant to this agreement, there is no breach of duty on our part and the customer's claims for damages and/or compensation for expenses instead of performance are excluded.
13. Default
Events of force majeure as well as strikes, lockouts and unforeseeable unavoidable circumstances, e.g. operational disruptions or delays by third contracting partners, entitle us to postpone our services for the duration of the impediment and a reasonable start-up period or to withdraw from the contract in whole or in part with regard to the part not yet fulfilled.
14. Infringement of Rights
14.1 The supplier is obliged to indemnify us and our customers from claims of third parties due to any infringements of rights by the supplier and to bear all costs incurred by us in this connection.
14.2 The supplier is not entitled to transfer the order in whole or in part to third parties or to assign existing claims arising from this contract to third parties without our express written consent. In any case, we are entitled to make payment to the supplier with discharging effect.
14.3 Force majeure, labor disputes, operational disruptions not caused by us, riots, official measures or other unavoidable events entitle the user to withdraw from the contract in whole or in part at his option if they result in a significant reduction in demand. A significant reduction is already agreed as a consequence of a 10% reduction in demand on our part.
15. Place of Performance/Jurisdiction
15.1 The place of performance for all services to be provided by us is our registered office in Radevormwald, unless otherwise specified by us.
15.2 The registered office of the company is agreed as the place of jurisdiction. However, we are also entitled to sue the supplier at his domicile or place of business.
16. Applicable Law
All contracts with the supplier shall be governed exclusively by the formal and substantive law of the Federal Republic of Germany, including our General Purchasing Terms and excluding multinational and international commercial provisions (UN Sales Law, CISG) and excluding the rules of German international private law which lead to the application of foreign law in formal and substantive terms.
17. Written Form/Collateral Agreements
There are no collateral agreements to the contract terms. Additions or amendments to the contract or the General Purchasing Terms require the written form. An implied deviation from this written form requirement is expressly excluded. Declarations by individual employees of our company are only binding if expressly confirmed by us in writing.
18. Running of Time Limits
To the extent that the requirements for the running of time limits pursuant to these purchasing terms are deemed proven by the dispatch of declarations on our part, the time limit is automatically extended by a postal period of 3 days.
19. Severability Clause
Should individual provisions of this contract be invalid, partially invalid or unenforceable, this shall not affect the validity of the remaining provisions. In place of the invalid, partially invalid or unenforceable provision, the parties agree to establish a regulation that comes as close as possible to the purpose of the invalid, partially invalid or unenforceable provision. Should the parties not reach such an agreement, the statutory provision that comes closest to the purpose of the invalid, partially invalid or unenforceable provision shall take the place of the invalid, partially invalid or unenforceable provision at the request of the parties.
Purchasing Terms
for Die Casting Tools/Deburring Tools/Fixtures
1. Scope of Application
1.1 Our purchasing terms apply exclusively. Conflicting or deviating terms and conditions of the supplier will not be recognized by us. The purchasing terms shall also apply if we accept the supplier's delivery without reservation while being aware of conflicting or deviating terms and conditions of the supplier.
1.2 Our purchasing terms apply only to merchants within the meaning of §24 AGBG.
1.3 Our purchasing terms shall also apply to all future contractual relationships with the supplier.
2. Offer
2.1 The supplier is obliged to accept our order within a period of 2 weeks. Only orders issued in writing or orally confirmed orders confirmed in writing are binding for POLMONT GmbH.
2.2 Reasonable changes to the subject matter of delivery after conclusion of contract, in particular in the case of technical innovations, must be made by the supplier within the scope of the contract, taking into account financial and time implications.
3. Prices/Payment Terms
3.1 The price stated in the order is binding for the supplier. Statutory VAT is not included.
3.2 A price communicated by the supplier in the order confirmation is binding if no objection is made within 8 days.
3.3 The prices are understood to be ex works including packaging, unless otherwise agreed. In the case of express shipment, the difference between freight and express goods costs may be charged by the supplier.
3.4 Payment shall be made, unless otherwise agreed in writing, in the following partial amounts:
15% of the purchase price will be paid 14 days after receipt of the order confirmation and at the earliest after dispatch of the design documents by POLMONT to the supplier.
50% of the purchase price will be paid after positive EMPB (if sample parts can be sent to our customer) at POLMONT, but at the latest 45 days after receipt of the defect-free die casting tool, deburring tool or fixture.
The remaining 35% of the purchase price will be paid 30 days after release, but at the latest 45 days after receipt of the sample parts by our customer.
4. Delivery
4.1 The delivery dates/times specified in the order are binding.
4.2 In the event of delivery delay, we are entitled to demand standardized delay damages of 2% of the delivery value per completed week, but not more than 10% of the total delivery value. Further statutory claims remain expressly reserved.
4.3 In the event of premature delivery by the supplier, we reserve the right to either return the goods at the supplier's cost or to store the goods until the delivery date at the supplier's cost and risk.
4.4 For the proper receipt of goods, the goods receipt at our premises shall be used as the basis for assessment.
4.5 The supplier undertakes to take back all transport packaging at his own cost. This includes the transport costs for the return of the transport packaging.
5. Defects
5.1 The user expressly has the right to demand rectification as a warranty claim against the supplier. The supplier hereby declares that he is capable of independent rectification.
5.2 A notice of defect regarding obvious defects shall be deemed timely if received by the supplier within a period of 14 working days after receipt.
5.3 The supplier is obliged to remedy defects in the delivered goods at his own cost immediately. This is expressly without prejudice to further statutory claims.
5.4 If rectification work due to faulty execution by the supplier makes it necessary for the user to carry out further sampling, the user has the right to invoice this, e.g. radii, wall thicknesses.
5.5 The rectifications must be carried out immediately. A maximum period of 10 days shall be deemed immediate. If the supplier is unable to carry out the rectification within this period after receipt of the request for rectification, the rectification will be carried out at POLMONT by way of substitute performance and the corresponding costs will be invoiced to the supplier.
6. Warranty
6.1 Independently of statutory warranty claims, we are entitled to demand from the supplier at our option rectification of defects or replacement delivery. Costs incurred in this connection shall be borne by the supplier. The warranty period for rectified or replacement goods begins anew after rectification or replacement delivery.
6.2 The supplier guarantees exact and drawing-compliant execution of the die casting mold by the agreed date in accordance with the specification sheet for die casting tools of the individual contract.
6.3 The tool must be designed to be operator- and maintenance-friendly in accordance with POLMONT's specifications. Welding work on the die casting molds is only permitted with the corresponding approval by POLMONT. If such approval is not available, the user is entitled to retain 5% of the tool costs.
6.4 The warranty period is 36 months from transfer of risk. Transfer of risk can only become legally effective if our order number is exactly indicated on all shipping documents and delivery notes. If this is not expressly noted, any delays in processing are not the responsibility of POLMONT.
7. Retention of Title
To the extent that we provide parts to the supplier, we reserve title thereto. Processing or transformations by the supplier are carried out for us. In the event of processing or mixing, we acquire co-ownership of the new items in proportion to the value of our item to the other processed items at the time of processing.
8. Product Liability
8.1 In the event of a claim due to product liability by POLMONT, the supplier is obliged to indemnify POLMONT from such claims if the damage was caused by goods supplied by the supplier. In the case of liability irrespective of fault, however, this only applies if the supplier is at fault.
8.2 If the cause of the damage lies within the supplier's area of responsibility, he bears the burden of proof to the contrary. In these cases, the supplier shall bear all costs and expenses including the costs of any legal proceedings or recall campaign.
8.3 Force majeure, labor disputes, operational disruptions not caused by us, riots, official measures or other unavoidable events entitle the user to withdraw from the contract in whole or in part at his option if they result in a significant reduction in demand.
9. Ethical and Social Principles
POLMONT hereby emphasizes its responsibility for compliance with social, ecological and ethical standards based on the principles of sustainability. In addition to this responsibility, the supplier should also be concerned with respecting the balance between economic growth, environmental protection and responsible use of resources.
The contractor undertakes to comply with the Act on the Regulation of a General Minimum Wage of 11.08.2014 (Minimum Wage Act - MiLoG) in its respective valid version and to pay its employees a wage of at least the respective statutory minimum wage.
10. Place of Performance/Jurisdiction
10.1 The place of performance for our payments is Radevormwald.
10.2 If the purchaser is a full merchant, the place of jurisdiction is Radevormwald. However, we are also entitled to sue the supplier at his domicile or place of business.
11. Severability Clause
The invalidity of individual provisions of these purchasing terms does not affect the validity of the remaining provisions and does not result in the invalidity of the entire General Purchasing Terms. If individual components of these General Purchasing Terms are invalid, the statutory regulations that come closest to the purpose of the invalid clause shall take their place.
As of: August 2017
