General Terms and Conditions of Purchase of tci - Gesellschaft für technische Informatik mbH

I. Scope, Form

These General Terms and Conditions of Purchase shall apply to all business relationships with our business partners and suppliers (“Sellers”). The General Terms and Conditions of Purchase shall only apply if the Seller is a company (Section 14 German Civil Code (Bürgerliches Gesetzbuch – BGB)), legal entity under public law or special trust under public law.
The General Terms and Conditions of Purchase shall particularly apply to any contracts on the sale and/or the delivery of movable items (“goods”) regardless of whether the Seller has produced the goods itself or purchased them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the General Terms and Conditions of Purchase shall apply in the version effective at the time the Buyer places the order or, in any case, in the version last provided to the Seller as a framework agreement even for similar future agreements without us having to refer to this fact in each individual case.
These General Terms and Conditions of Purchase shall apply exclusively. Deviating, contrary or additional General Terms and Conditions of the Seller shall only form part of the agreement if explicitly approved by us in writing. This consent requirement shall apply in any case, for example, even if the Seller refers to its GTC in the order confirmation and we do not expressly object to this.
Individual agreements (e.g. framework supply agreements, quality assurance agreements) and specifications in our order take precedence over the General Terms and Conditions of Purchase. In case of doubt, trade terms shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time the contract is concluded.
Legally relevant declarations and notifications by the Seller relating to the contract (e.g. setting of time limits, reminders, withdrawal) shall be made in writing. Writing within the meaning of these General Terms and Conditions of Purchase includes written and text form (e.g. letter, email, fax). Legal form requirements and other proof, particularly in case of any doubt about the legitimation of the declaring party, shall not be affected.
References to the applicability of legal provisions shall only serve for clarifying purposes. Even without such clarification, the legal provisions therefore shall apply, unless they directly amend these General Terms and Conditions of Purchase or are explicitly excluded.

II. Conclusion of the Contract

Our order shall be classed as binding at the earliest upon written submission or confirmation. The Seller shall notify us of any obvious errors (such as typos and incorrect calculations) and incomplete information contained in the order, including order documentation, so that these can be corrected and/or completed prior to approval. Failure to do so shall result in the contract being deemed to not have been concluded.
The Seller is required to confirm our order in writing within a period of 7 weekdays or to complete it without reservation, notably by sending the goods (acceptance). Confirmation must be communicated immediately in this case.
Delayed acceptance is considered as a new offer and requires acceptance by us.

III. Delivery Times and Delays in Delivery

The delivery periods stated by us in the order shall be binding. If the delivery period is not stated in the order and has not been otherwise agreed, it shall be 5 working days from conclusion of the contract. The Seller shall notify us immediately and in writing if it looks apparent that an agreed delivery period cannot be complied with, for whatever reason.
If the Seller fails to provide its services or does so outside the agreed delivery periods or if the Seller is delayed, our rights, particularly those regarding withdrawal and compensation, shall be based on the legal provisions. This shall not affect the provisions in Section 3.
In the event the Seller defaults on a delivery, we may – in addition to further legal claims – demand flat-rate compensation for damage caused by delay to the amount of 1% of the net price per completed calendar week but not more than a total of 5% of the net price of the goods delivered late. We may provide proof that the damage incurred is bigger. The Seller may provide proof that no, or significantly less, damage has been incurred.

IV. Performance, Delivery, Risk Transfer and Delayed Acceptance

The Seller shall not engage third parties (such as subcontractors) to perform the services due to us without our prior written consent. The Seller shall carry the procurement risk for its services, unless agreed otherwise in individual cases (e.g. limited to inventories).
Delivery in Germany shall be free to the delivery address specified in the order. If no place of destination has been named and unless otherwise agreed, the delivery shall be made to our head office in Heuchelheim, Germany. The respective delivery address shall also be the place of fulfilment for deliveries and any supplementary performance (obligation to fulfil).
Deliveries shall include a delivery note, including date (issuance and dispatch), content of delivery (item number and quantity) and our order number (date and number). We shall not be held responsible for any delays in processing and payment resulting from failure to include a delivery note or incomplete delivery notes. The Seller shall provide us with a corresponding dispatch notice containing the same content as the delivery note, which shall be sent separately to the delivery note.
The risk of accidental destruction and deterioration of the goods shall be transferred to us upon transfer of the goods at the place of fulfilment. If an approval of the goods has been agreed, this shall be the date on which the risk is transferred. The legal provisions of the law applicable to contracts for works and services shall further apply correspondingly in the event of an approval of goods. Any delayed acceptance shall not affect the transfer and/or approval of goods.
The legal provisions shall apply in the event of acceptance being delayed by us. However, the Seller shall explicitly offer us its services even if a specific or determinable calendar period has been agreed for an action or cooperation on our part (such as provision of materials). If we are in default of acceptance, the Seller may claim compensation for any additional costs incurred in accordance with statutory provisions (Section 304 BGB). In the event of the contract relating to an untenable item to be manufactured by the Seller (one-off production), the Seller only shall have further rights if we have agreed to cooperate and have violated this obligation.

V. Prices and Terms of Payment

The price stated in the order shall be binding. All prices include statutory VAT, unless this is stated separately.
Unless otherwise agreed in individual cases, the price shall include all services and ancillary services of the Seller (such as assembly and installation) as well as all ancillary costs (such as proper packaging and transport costs).
The agreed price shall be payable within 30 calendar days from complete delivery and provision of services (including any approval agreed) as well as receipt of a properly prepared invoice. The seller shall apply a 3% discount on the net invoice amount for any payments made by us within 14 calendar days. For bank transfers, payment is deemed to have been made on time if the bank receives our transfer order before the payment deadline. We shall not be liable for any payment delays caused by the banks involved in the payment process.
We shall not be liable to pay regular interest payable on due date. The legal provisions shall apply in the event of payment default.
We shall have the right of set-off, retention and appeal against non-fulfilment of contract within the scope specified by law. We may, in particular, retain payments due as long as we are still entitled to claim compensation for incomplete or deficient services from the Seller.
The Seller shall only have the right of set-off or retention on the grounds of legally binding or undisputed counterclaims.

VI. Confidentiality and Retention of Title

We shall reserve the intellectual property rights and copyright in all images, plans, drawings, calculations, work instructions, product descriptions and other documents. Such documents shall be used exclusively for the contractually agreed services and returned to us upon completion of the contract. The documents shall not be disclosed to third parties, even once the contract has expired. This non-disclosure obligation shall only expire if and insofar as the knowledge contained in the transferred documents has become public knowledge. Special non-disclosure agreements and statutory regulations on the protection of confidential information shall remain unaffected.
The provision above shall apply accordingly to substances and materials (such as software, finished and semi-finished products) as well as tools, templates, samples and other items that we provide to the Seller for manufacture. Unless processed otherwise, the Seller shall store such items separately and at its own cost and insure them adequately against destruction and loss.
The Seller shall process, mix or combine (further processing) provided items for us. The same shall apply if the goods supplied are processed further by us, meaning that we are classed as the manufacturer and acquire the title to the products no later than upon further processing in accordance with legal provisions.
The title of the goods shall be transferred to us without exception and regardless of payment being made. However, in the special event of us accepting an offer made by the Seller to transfer the title on the basis of a purchase price payment being made, the Seller’s retention of title shall expire no later than upon purchase price payment for the goods delivered. During the proper course of business, we shall retain the right to sell on the goods even before the purchase price payment has been made and whilst assigning the resulting receivable in advance (simple retention of title extended to include the selling-on of the goods shall apply for the purpose of simplification). In any case, this shall exclude all other forms of retention of title, particularly any retention of title that has been extended, assigned and extended to include further processing.

VII. Defective Delivery

The legal provisions and following supplements and clarifications shall apply exclusively in our favour regarding our rights in the event of physically and legally defective goods (including incorrect and short deliveries as well as improper assembly/installation or inadequate instructions) and other violations of duty by the Seller.
In accordance with legal provisions, the Seller shall be liable, in particular, to ensure that the goods have the agreed properties upon the transfer of risk relating to the goods. In any case, product descriptions that are the object of the respective agreement, particularly by being stated or referred to in our order, or which have been included in the agreement in the same manner as these General Terms and Conditions of Purchase, shall be deemed to be an agreement on the properties of the goods. It shall make no difference if the product description originates from us, the Seller or manufacturer.
In the case of goods with digital elements or other digital content, the Seller shall owe the provision and updating of the digital content at least if this is the result of a quality agreement in accordance with Para. 2 or other product descriptions provided by the manufacturer or on its behalf, in particular on the internet, in advertising or on the goods label.
We shall not be obliged to inspect the goods or make special enquiries about any defects upon conclusion of the contract. Partly notwithstanding the provisions in Section 442, Para. 1, Sentence 2 BGB, we shall, therefore, be entitled to claims for defects without limitation even if we did not become aware of the defect upon conclusion of the contract due to gross negligence.
Statutory provisions (Sections 377, 381 German Commercial Code – HGB) shall apply to the commercial obligation to inspection and give notice of defects with the following stipulation: Our duty to investigate shall be limited to defects apparent during our incoming goods inspection when goods are visually inspected from the outside, including their delivery documentation (e.g. transport damage, incorrect or short deliveries) or which become apparent during our random quality checks. There shall be no duty to investigate if the acceptance of goods has been agreed. Besides, it shall depend on the actual benefit of an investigation, taking into account individual circumstances in accordance with diligent commercial judgement. This shall not affect our duty to raise a complaint about defects uncovered in the future. Notwithstanding our duty to investigate, our complaint (notification of defect) shall be deemed to have been made immediately and in good time if sent off within 10 working days from discovery of defect and/or from delivery in the case of obvious defects.
Supplementary performance shall also include the removal of the defective goods and their reinstallation if the goods have been installed in another item or attached to another item in accordance with their type and intended use before the defect became apparent; our statutory claim to reimbursement of the corresponding expenses (dismantling and installation costs) remains unaffected. The Seller shall pay for any expenses necessary for the purpose of inspection and supplementary performance, in particular transport, travel, labour and material costs as well as any dismantling and installation costs if it transpires that no defect actually existed. This shall not affect our liability for damages in the case of unauthorised rectification of defect. However, we shall only assume liability if we have realised, or failed to realise due to acts of gross negligence, that there was no defect.
Irrespective of our statutory rights and the provisions in Para. 5, the following shall apply: Should the Seller fail to meet its duty of supplementary performance, by rectifying the defect (subsequent improvement) or delivering a non-defective item (replacement delivery) according to our choice, within a reasonable period of grace given by us, we may rectify the defect and claim damages from the Seller for the expenses incurred in this respect and/or advance payment on such expenses. No period of grace shall be required if supplementary performance by the Seller has been unsuccessful or would be unreasonable for us (e.g. due to particular urgency, risks to operating safety or impending unreasonable damage). We shall notify the Seller of such circumstances immediately and even in advance, if possible.
Besides, we may reduce the purchase price or withdraw from the contract in the event of a physical or legal defect in accordance with the legal provisions. We furthermore shall be entitled to claim compensation for damages and expenses in accordance with the legal provisions.

VIII. Supplier Recourse

In addition to any claims for defects, we shall have unrestricted entitlement to our legally determined rights to expenses and recourse within a supply chain (supplier recourse in accordance with Sections 478, 445a, 445b or Sections 445c, 327 Para. 5, 327u BGB). We are notably entitled to demand exactly the same supplementary performance (subsequent improvement or replacement delivery) from the Seller that we owe to our customers on a case-by-case basis; in the case of goods with digital elements or other digital content, this also applies with regard to the provision of necessary updates. Our legal right to choose (Section 439, Para. 1 BGB) is not limited by this.
Prior to acknowledging or fulfilling any claims for defects raised by one of our customers (including compensation for expenses in accordance with Sections 445a Para. 1, 439 Para. 2, 3, 6 Sentence 2., Section 475 Para. 4 BGB), we shall notify the Seller, provide a brief description of the circumstances and request a written statement. Should the Seller fail to provide a substantiated statement within a reasonable period of time and if no mutually agreeable solution is found, the actual claim for defects agreed by us shall be deemed to be owed to our customer. In this case, the Seller shall be obliged to furnish proof to the contrary.
Our claims from supplier recourse shall also apply if the defective goods have been combined with another product or processed in any other way by us, our customer or a third party, for example, by assembly, attachment or installation.

IX. Manufacturer’s Liability

In the event of the Seller being liable for a product defect, the Seller shall hold us harmless of any third-party claims if the cause falls within the Seller’s scope of control and organisation and the Seller assumes liability when dealing with third parties.
As part of this obligation to indemnify, the Seller must reimburse any expenses in accordance with Sections 683, 670 BGB that arise out of or in connection with any recourse taken by third parties, including for recall action carried out by us. We shall notify the Seller of the content and scope of any recalls, insofar as possible and reasonable, and give the Seller the opportunity to issue a statement. This shall not affect any further-reaching legal claims.
The Seller shall conclude and maintain product liability insurance with a fixed minimum cover of EUR 10 million per personal injury/physical damage.

X. Limitation Period

Both parties’ claims shall be subject to the statutory limitation periods unless otherwise stipulated below.
Notwithstanding Section 438, Para, 1, No. 3 BGB, the standard limitation period for claims for defects is 3 years from the passing of risk. The statute of limitation shall start with acceptance if acceptance has been agreed. This 3-year limitation period shall also apply correspondingly to claims based on legal defects, whereby the statutory limitation period for third party claims for real restitution (Section 438, Paragraph 1, No. 1 BGB) remain unaffected; claims based on legal defects shall not become statute-barred as long as third parties can still make claims against us, particularly in the absence of a limitation period.
The limitation periods specified in the sales law, including the aforementioned extensions, shall apply to all contractual claims based on defects to the legally permissible extent. If we are entitled to claim compensation for non-contractual damages on the grounds of a defect, the regular legal statute of limitation (Sections 195 and 199 BGB) shall apply, unless the application of the statute of limitation of the sale of goods law would result in a longer statute of limitation in individual cases.

XI. Governing Law and Place of Jurisdiction

These General Terms and Conditions of Purchase and the legal relationship between us and the Seller are subject to the laws of the Federal Republic of Germany under exclusion of international uniform law, notably the UN Convention on Contracts for the International Sale of Goods.
If the Seller is a business person within the meaning of the German Commercial Code, legal entity under public law or special trust under public law, the exclusive, including international, place of jurisdiction for all disputes arising from the contractual relationship shall be the location of our head office in Heuchelheim, Germany. The same shall apply if the Seller is a business person within the meaning of Section 14 BGB. In any case, we may file claims at the place of fulfilment of the delivery obligation in accordance with these General Terms and Conditions of Purchase and/or any individual agreement which takes priority or at the general place of jurisdiction of the Seller. This shall not affect any legal provisions which take priority, particularly regarding exclusive responsibility.

Ludwig-Rinn-Straße 10-14, 35452 Heuchelheim, last updated 08/2022