General Terms and Conditions of Purchase of Matthews Marking Systems Germany GmbH
§1 Scope, Form, General
(1) These General Terms and Conditions of Purchase (GTC) apply to all business relationships with our business partners and suppliers (“Seller”). The GTC apply only if the Seller is an entrepreneur (§ 14 German Civil Code), a legal entity under public law, or a special fund under public law.
(2) These General Terms and Conditions of Sale (GTC) apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether the seller manufactures the Goods himself or purchases them from suppliers (Sections 433, 650 of the German Civil Code). Unless otherwise agreed, these GTC, in the version valid at the time of the buyer’s order or, in any case, in the version last communicated to him in writing, shall also apply as a framework agreement to similar future contracts without us having to refer to them again in each individual case.
(3) These General Terms and Conditions of Sale apply exclusively. Any differing, conflicting, or supplementary terms and conditions of the seller shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This requirement of written consent applies in all cases, for example, even if we accept the seller’s deliveries without reservation despite being aware of the seller’s terms and conditions.
(4) Individual agreements made with the seller in specific cases (including side agreements, amendments and modifications) shall in any case take precedence over these General Terms and Conditions of Sale.
(5) Legally relevant declarations and notices from the seller relating to the contract (e.g., setting deadlines, reminders, withdrawal) must be made in writing, i.e., in written or electronic form (e.g., letter, email, fax). Statutory form requirements and further evidence, particularly in cases of doubt regarding the declarant’s authorization, remain unaffected.
(6) In all order and purchase order confirmations, delivery documents and invoices, our contractual partner must state our order number, the item number, the delivery quantity and the delivery address.
(7) The seller is not entitled to assign its claims arising from the contractual relationship to third parties. This does not apply to monetary claims.
(8) References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions apply unless they are directly amended or expressly excluded in these General Terms and Conditions.
§2 Conclusion of Contract
(1) Our order shall only become binding upon written submission or confirmation. The seller must notify us of any obvious errors (e.g., spelling or calculation errors) and omissions in 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) The seller is obliged to confirm our order in writing within a period of 2 weeks (acceptance). A delayed acceptance shall be deemed a new offer and requires our acceptance.
(3) We are entitled to change the time and place of delivery as well as the type of packaging at any time by giving at least 10 calendar days’ written notice before the agreed delivery date. The same applies to changes to product specifications, provided these can be implemented within the supplier’s normal production process without significant additional effort, in which case the notice period according to the preceding sentence is at least 15 calendar days. The aforementioned right to make changes exists only if the modified service can be provided within the supplier’s normal business operations without significant additional effort. We will reimburse the supplier for any additional, documented, and reasonable costs incurred as a result of the change. If such changes result in delivery delays that cannot be avoided within the supplier’s normal production and business operations with reasonable effort, the originally agreed delivery date will be postponed accordingly. The supplier will notify us in writing of any additional costs or delivery delays that they anticipate based on a careful assessment, in good time before the delivery date, but at least within 5 working days of receiving our notification pursuant to sentence 1.
(4) We are entitled to withdraw from the contract at any time by written declaration stating the reason if we can no longer use the ordered products in our business operations due to circumstances that have arisen after the conclusion of the contract and are attributable to the supplier (such as the failure to comply with legal requirements) or if the supplier’s financial situation deteriorates after the conclusion of the contract to such an extent that delivery in accordance with the contract cannot be expected.
§3 Delivery time and delivery delays
(1) The delivery time specified by us in the order is binding. The seller is obliged to inform us immediately in writing if he is unlikely to be able to meet agreed delivery times – for whatever reason.
(2) If the seller fails to perform his obligations, fails to do so within the agreed delivery period, or is in default, our rights – in particular the right to withdraw from the contract and claim damages – are governed by the statutory provisions. The provisions in paragraph 3 remain unaffected.
(3) If the seller is in default, we may – in addition to any further legal claims – demand liquidated damages for our losses due to the delay in the amount of 1% of the net price per completed calendar week, but not exceeding a total of 5% of the net price of the goods delivered late. We reserve the right to prove that a higher loss has been incurred. The seller reserves the right to prove that no loss or only a significantly lower loss has been incurred.
§4 Performance, Delivery, Transfer of Risk, Default of Acceptance
(1) The seller is not entitled to have the performance owed by him carried out by third parties (e.g. subcontractors) without our prior written consent. The seller bears the procurement risk for his services unless otherwise agreed in a specific case (e.g. limitation to stock).
(2) Delivery within Germany is free of charge to the address specified in the order. If the destination is not specified and nothing else has been agreed, delivery shall be made to our business premises in Aschau im Chiemgau. The respective destination is also the place of performance for the delivery and any subsequent performance (delivery obligation).
(3) A delivery note must be included with the shipment, stating the date (issued and dispatched), the contents of the shipment (article number and quantity), and our order reference (date and number). If the delivery note is missing or incomplete, we are not responsible for any resulting delays in processing and payment.
(4) The risk of accidental loss or accidental damage to the goods passes to us upon delivery at the place of performance. If acceptance is agreed upon, this is decisive for the transfer of risk. In all other respects, the statutory provisions of the law of contracts for work and services apply accordingly to acceptance. Delivery or acceptance is deemed to have occurred if we are in default of acceptance.
(5) The statutory provisions apply to the commencement of our default of acceptance. However, the seller must also expressly offer us performance even if a specific or determinable calendar time has been agreed upon for an action or cooperation on our part (e.g., provision of materials). If we default of acceptance, the seller may demand compensation for his additional expenses in accordance with the statutory provisions (§ 304 German Civil Code). If the contract concerns a non-fungible item to be manufactured by the seller (custom-made item), the seller is entitled to further rights only if we have undertaken to cooperate and are responsible for the failure to cooperate.
§5 Prices and Payment Terms
(1) The price stated in the order is binding. Statutory VAT must be shown separately. If statutory VAT is not shown separately, the prices are understood to include statutory VAT.
(2) Unless otherwise agreed in a specific case, the price includes all services and ancillary services provided by the seller (e.g., assembly, installation) as well as all incidental costs (e.g., proper packaging, transport costs including any transport and liability insurance). At our request, our contractual partner will take back the packaging at their own expense.
(3) The agreed price is due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. In the case of bank transfer, payment is considered timely if our transfer order is received by our bank before the payment deadline; we are not responsible for delays caused by the banks involved in the payment process.
(4) We do not owe default interest. The statutory provisions apply to late payments.
(5) We are entitled to set-off and retention rights, as well as the defense of non-performance of contract, to the extent permitted by law. In particular, we are entitled to withhold payments due as long as we have claims against the seller arising from incomplete or defective performance.
(6) The seller has a right of set-off or retention only for counterclaims that have been legally established or are undisputed.
§6 Confidentiality and Retention of Title
(1) We reserve all proprietary and copyright rights to illustrations, plans, drawings, calculations, instructions for execution, product descriptions, and other documents. Such documents are to be used exclusively for the contractual performance and must be returned to us upon completion of the contract. These documents must be kept confidential from third parties, even after termination of the contract. The obligation of confidentiality only expires when and to the extent that the knowledge contained in the provided documents has become generally known.
(2) The foregoing provision shall apply mutatis mutandis 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 manufacturing purposes. Such items shall be stored separately at the seller’s expense and adequately insured against destruction and loss as long as they are not being processed.
(3) Any processing, mixing, or combining (further processing) of items provided by the seller is carried out on our behalf. The same applies to further processing of the delivered goods by us, so that we are considered the manufacturer and 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 be unconditional and irrespective of payment of the purchase price. However, if in a specific case we accept an offer from the seller to transfer ownership conditional upon payment of the purchase price, the seller’s retention of title expires at the latest upon payment of the purchase price for the delivered goods. In the ordinary course of business, we remain authorized to resell the goods even before payment of the purchase price, subject to the prior assignment of the resulting claim (alternatively, the simple retention of title and the extended retention of title for resale apply). All other forms of retention of title are thereby excluded, in particular extended, transferred, and processing-related retention of title.
§7 Defective Delivery
(1) Our rights in the event of material defects and defects of title in the goods (including incorrect or short deliveries as well as improper assembly, defective assembly, operating or user instructions) and in the event of other breaches of duty by the seller shall be governed by the statutory provisions, unless otherwise specified below.
(2) In accordance with statutory provisions, the seller is liable, in particular, for ensuring that the goods conform to the agreed specifications at the time of transfer of risk to us. Product descriptions that are part of the respective contract – especially through designation or reference in our order – or that have been incorporated into the contract in the same manner as these General Terms and Conditions of Purchase, shall in any case be deemed to constitute an agreement regarding the specifications. It makes no difference whether the product description originates from us, the seller, or the manufacturer.
(3) Notwithstanding Section 442 Paragraph 1 Sentence 2 of the German Civil Code (BGB), we are entitled to unrestricted claims for defects even if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.
(4) The statutory provisions (§§ 377, 381 HGB) apply to the commercial obligation to inspect and give notice of defects, subject to the following provision:
Our duty to inspect is limited to defects that are readily apparent during our incoming goods inspection, including external examination of the delivery documents (e.g., transport damage, incorrect or short deliveries), or that are detectable during our quality control checks using a sampling procedure. If acceptance testing has been agreed upon, there is no duty to inspect. Otherwise, the extent of the inspection depends on what is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to notify us of defects discovered later remains unaffected. Notwithstanding our duty to inspect, our notification of defects is considered immediate and timely if it is sent within 5 business days of discovery or, in the case of obvious defects, within 5 business days of delivery.
(5) Remedial action also includes the removal of the defective goods and their reinstallation, provided that the goods, in accordance with their nature and intended use, have been installed in or attached to another item; our statutory right to reimbursement of corresponding expenses remains unaffected. The seller shall bear the expenses necessary for inspection and remedial action even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request for rectification of defects remains unaffected; however, in this respect, we are only liable if we knew, or through gross negligence failed to recognize, that there was no defect.
(6) Without prejudice to our statutory rights and the provisions of paragraph 5, the following applies: If the seller fails to fulfill its obligation to remedy the defect – at our option by repairing the defect or by delivering a replacement – within a reasonable period set by us, we may remedy the defect ourselves and demand reimbursement from the seller for the necessary expenses or an appropriate advance payment. If the seller’s attempt to remedy the defect has failed or is unreasonable for us (e.g., due to particular urgency, a risk to operational safety, or the threat of disproportionate damage), no deadline need be set; we will inform the seller of such circumstances immediately, if possible beforehand.
(7) Acceptance or approval of submitted samples or specimens does not constitute a waiver of our warranty rights.
(8) Furthermore, in the event of a material or legal defect, we are entitled to a reduction in the purchase price or to rescind the contract in accordance with statutory provisions. We are also entitled to compensation for damages and expenses in accordance with statutory provisions.
§8 Supplier recourse
(1) Our statutory rights of recourse within a supply chain (supplier recourse pursuant to Sections 445a, 445b, 478 of the German Civil Code (BGB)) remain fully available to us alongside our warranty claims. In particular, we are entitled to demand from the seller precisely the type of supplementary performance (repair or replacement) that we owe our customer in each individual case. This does not restrict our statutory right of choice (Section 439 Paragraph 1 of the German Civil Code (BGB)).
(2) Before we acknowledge or fulfill a warranty claim asserted by our customer (including reimbursement of expenses pursuant to Sections 445a Paragraph 1, 439 Paragraphs 2 and 3 of the German Civil Code (BGB)), we will notify the seller and request a written statement, briefly outlining the facts of the case. If a substantiated statement is not received within a reasonable period and no amicable solution is reached, the warranty claim actually granted by us will be deemed owed to our customer. In this case, the burden of proof lies with the seller.
(3) Our supplier recourse claims also apply if the defective goods have been further processed by us or another entrepreneur, e.g. by incorporation into another product.
§9 Product Liability
(1) If the seller is responsible for product damage, he shall indemnify us against claims by third parties insofar as the cause lies within his sphere of control and organization and he is liable to third parties.
(2) As part of its indemnification obligation, the seller shall reimburse expenses pursuant to Sections 683 and 670 of the German Civil Code (BGB) that arise from or in connection with claims by third parties, including recall actions carried out by us. We will inform the seller of the content and scope of recall measures – to the extent possible and reasonable – and give the seller an opportunity to comment. Further statutory claims remain unaffected.
§10 Statute of Limitations
(1) The mutual claims of the contracting parties shall be subject to the statutory limitation periods, unless otherwise provided below.
(2) Notwithstanding Section 438 Paragraph 1 No. 3 of the German Civil Code (BGB), the general limitation period for claims based on defects is three years from the transfer of risk. If acceptance is agreed upon, the limitation period begins with acceptance. The three-year limitation period also applies accordingly to claims based on defects of title, whereby the statutory limitation period for third-party claims for the return of property (Section 438 Paragraph 1 No. 1 BGB) remains unaffected; furthermore, claims based on defects of title do not become time-barred in any case as long as the third party can still assert the right against us – in particular due to the absence of a limitation period.
(3) The limitation periods under the law of sales, including the aforementioned extension, apply – to the extent provided 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 applies (§§ 195, 199 of the German Civil Code), unless the application of the limitation periods under the law of sales results in a longer limitation period in a specific case.
§11 Choice of Law and Jurisdiction
(1) These General Terms and Conditions and the contractual relationship between us and the seller shall be governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) If the seller is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction – including for international disputes – for all disputes arising from the contractual relationship is the seller’s registered office in Aschau im Chiemgau. The same applies if the seller is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, in all cases, we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions of Purchase (GTC) or a prior individual agreement, or at the seller’s general place of jurisdiction. Mandatory statutory provisions, in particular those concerning exclusive jurisdiction, remain unaffected.