General Terms and Conditions of Purchase

1. Applicability and Validity of the Client’s Terms and Conditions

These Terms and Conditions of Purchase apply exclusively to all contracts—including future ones—with entrepreneurs, legal entities under public law, and special funds under public law regarding deliveries and other services, including contracts for work and services. Any conflicting or additional terms and conditions of the contractor are hereby rejected. They shall not be recognized even if they are not expressly rejected again upon receipt, the delivery is accepted, and/or the goods are paid for. They shall apply only if the purchaser has expressly agreed to them or to parts thereof in writing.

2. Order by the Client

Orders, verbal side agreements regarding the order, agreements, and statements made by the Client’s employees shall only become binding upon written confirmation by the Client. This also applies to subsequent changes and additions.
The contractor shall immediately notify the client in writing of any changes or additions to the scope of delivery or services that prove necessary during execution. These require the prior written consent of the client.
The written form requirement is also satisfied by transmission via electronic data transfer.
The order must be confirmed by the contractor within eight business days by means of a legally valid signed copy of the order (order acceptance). This does not apply to orders transmitted by the client via electronic data transmission. In this case, confirmations must be provided within two business days. Failure to confirm shall be deemed acceptance.

3. Contractor’s Offer

The Contractor must adhere strictly to the specifications and wording of the inquiry in the offer. In the event of deviations, an explicit note is required.
The Client reserves ownership and copyright to illustrations, drawings, calculations, and other documents related to the Client’s inquiries; these may not be made accessible to third parties. Disclosure to third parties requires the Client’s express written consent. The documents are to be used exclusively for production based on the Client’s order; after the order has been fulfilled, they must be returned to the Client without being asked.
The preparation of offers is free of charge and non-binding for the Client.
Upon submission of the quotation, the Contractor must, in accordance with the provisions of § 48 EstG, provide a valid exemption certificate pursuant to § 48b EstG in a legible copy or, in the case of an order-specific certificate, in the original. Otherwise, the quotation cannot be considered in the further award procedure. The contractor must immediately inform the client of any revocation of a valid exemption certificate.

4. Delivery and Performance Dates

The delivery or service dates specified in the order are binding. Deliveries made prior to the agreed delivery date may be rejected by the Client. The Contractor is obligated to immediately notify the Client in writing if circumstances arise or become apparent to the Contractor that indicate the agreed-upon date cannot be met. The obligation to meet the agreed-upon dates remains unaffected by this.
In the event of a delay by the Contractor, the Client may, after the fruitless expiration of a reasonable grace period set by the Client, have the delivery not yet performed by the Contractor carried out by a third party at the Contractor’s expense. Furthermore, the Client may withdraw from the contract after the fruitless expiration of a reasonable grace period set by the Client.
In the event of a delay in delivery by the Contractor, the Client is entitled to claim a lump-sum delay penalty amounting to 1% of the delivery value per completed week, but not exceeding 10%. The Contractor has the right to prove to the Client that no damage or significantly less damage has resulted from the delay. The Client reserves the right to assert further legal claims in lieu of the lump-sum compensation for delay, in particular withdrawal from the contract or damages for non-performance.
In the event of force majeure, the Client is entitled to demand performance at a later date. The Client is obligated to notify the Contractor of this immediately.
In addition to the provisions set forth in the preceding paragraphs, the statutory provisions shall apply.
The contractor may only invoke the failure of the client to provide necessary documents if the contractor has not received these documents within a reasonable period of time despite a written reminder.

5. Framework Orders

In the case of framework orders, a separate framework agreement for the materials to be delivered is concluded between both parties. This agreement specifies the delivery prices and the total quantity of materials to be delivered for an estimated period of one year (annual requirement). The specific delivery call-off from a framework order is made by the Client in writing for the previously agreed batch size. However, the Client is permitted to place call-off orders with lower or higher quantities, deviating from the agreed batch sizes.
The contractor is obligated to deliver the respective call-off quantity within 3 business days of receiving a written call-off order from a framework contract. The contractor is obligated to maintain sufficient stock of materials from existing framework contracts at all times to ensure the 3-business-day delivery period for individual call-off orders. Framework contracts begin with the first call-off and end with the last call-off of the materials to be delivered.
The prices agreed upon in the framework contracts are always fixed prices that apply for the duration of the individual framework contracts.
The Client undertakes to the Contractor to accept the quantities agreed upon in the respective framework contracts. However, the Client is not obligated to accept specific partial quantities within certain time frames. The specific acceptance quantity is determined by the Client’s operational needs and the specific individual call-off orders.

6. Execution, Environmental Protection, Safety, Health Protection, and Quality

The delivery must meet the agreed specifications, comply with recognized technical standards, and take into account the applicable legal and regulatory requirements as well as the Client’s operational rules and regulations. In particular, the contractor must comply with accident prevention regulations, the regulations of the employers’ liability insurance association (in particular BGVA1 and BGVA2), as well as generally accepted safety and occupational health rules. Machinery and technical work equipment must be delivered in accordance with the Machinery Ordinance, accompanied by operating instructions and an EC Declaration of Conformity. They must also comply with the standards listed in Lists A and B of the “General Administrative Regulation on the Law on Technical Work Equipment,” as well as other rules pertaining to safety and the accident prevention regulations. Work equipment bearing the CE mark is to be supplied in preference. If a certification mark has not been issued, compliance with the aforementioned regulations must be demonstrated at our request.
Where applicable, the Contractor shall maintain a quality assurance system, e.g., in accordance with DIN EN ISO 9001–9003. The Client is entitled to inspect the system upon prior arrangement.
In the event that the Contractor supplies substances that are hazardous substances within the meaning of the Hazardous Substances Ordinance, the Contractor is obligated to provide the EC Safety Data Sheet (§ 4 GefStoffV) unsolicited prior to delivery.
The use of carcinogenic substances is prohibited for the Contractor. The Contractor must continuously align the quality of the products to be delivered to the Client with the latest state of the art and inform the Client of opportunities for improvement and technical modifications.

7. Insurance

Warranty periods and liability insurance coverage must be maintained under standard industry terms (minimum coverage of 5 million euros per person for bodily injury and property damage, as a lump sum). The Contractor must provide proof of existing insurance upon the Client’s request; lower coverage amounts must be agreed upon with the Client on a case-by-case basis. If the Client is entitled to further claims for damages, these remain unaffected.
All shipments addressed directly to the Client (e.g., deliveries based on purchase agreements, work and material contracts, maintenance contracts, or custom-made items, but not material deliveries for work contracts performed by the Contractor at the Client’s facilities) must be insured by the Contractor.

8. Retention of Title, Provision of Materials, Tools

If the Client provides parts to the Contractor, the Contractor retains title to them. Any processing or transformation by the Contractor is carried out on behalf of the Client. If the item provided by the Client is processed or inseparably mixed with other items not belonging to the Client, the Client shall acquire co-ownership of the new item in the ratio of the value of the reserved item (purchase price plus sales tax) to the other processed or mixed items at the time of processing/mixing. If the processing/mixing is carried out in such a way that the Contractor’s item is to be regarded as the principal item, it is hereby agreed that the Contractor shall transfer proportional co-ownership to the Client; the Contractor shall hold sole ownership or co-ownership in trust for the Client.
The Client retains title to any tools provided; the Contractor is obligated to use the tools exclusively for the manufacture of the goods ordered by the Client. The Contractor is obligated to insure the tools belonging to the Client at replacement value against fire, water, and theft damage at its own expense. At the same time, the Contractor hereby assigns to the Client all claims for compensation arising from this insurance; the Client hereby accepts such assignment. The Contractor is obligated to perform any necessary maintenance and inspection work on the Client’s tools, as well as to cover all maintenance and repair costs, in a timely manner at its own expense. It must immediately notify the Client of any malfunctions; if it fails to do so through its own fault, claims for damages remain unaffected. To the extent that the security interests existing against the Client pursuant to the foregoing provisions exceed the purchase price of all of the Client’s goods subject to retention of title that have not yet been paid for by more than 20%, the Client is obligated, upon the Contractor’s request, to release the security interests at the Client’s discretion.
With regard to the Contractor’s retention of title, the Contractor’s terms and conditions shall apply, provided that ownership of the goods passes to the Client upon payment and, accordingly, the extended form of the current account retention of title does not apply. Based on the retention of title, the Contractor may only demand the return of the goods if he has previously withdrawn from the contract.

9. Subcontractors, Workers from Non-EU Countries

The engagement of subcontractors requires the prior written consent of the Client. The Contractor must impose upon the subcontractors, with respect to the tasks they undertake, all obligations that the Contractor has assumed toward the Client and must ensure compliance with them.
If the Contractor or subcontractors employ workers who are not from EU countries, the Contractor must submit the relevant work permits to the Client before work begins.
If the Contractor engages subcontractors without our prior written consent pursuant to Section 2.(1) or if the Contractor violates the obligation to submit work permits pursuant to Section 2.(2), the Client shall have the right to withdraw from the contract or to claim damages for non-performance.
The Contractor may not prevent its subcontractors from entering into contracts with the Client for other goods or services. In particular, exclusivity agreements with third parties that prevent the Client or the subcontractor from procuring goods or services required by the Client itself or the subcontractor for the performance of such contracts are prohibited.

10. Shipping, Place of Performance

Agreed delivery dates and deadlines are binding. The Client must be notified immediately in writing of any impending delivery delays. At the same time, the Client must be offered suitable countermeasures to mitigate the consequences of the delay. Unless otherwise agreed in writing, compliance with the delivery date or delivery period is determined by the receipt of the goods by the Client. The place of performance is the delivery address specified by the Client in the order.
Shipping is at the expense and risk of the contractor. The most cost-effective transport options for the client must be selected, unless the client has expressly specified certain transport requirements. Deliveries must be packaged in such a way as to prevent damage during transport.
In addition to the shipping address, the transport documents must include the order details (order number, client’s item number, order date, delivery location, recipient’s name if applicable, and container number). As a general rule, the shipment must be notified in writing to the client’s ordering department on the day of dispatch.
When delivering hazardous materials, product information, in particular safety data sheets, must be provided to the client in a timely manner prior to delivery. The same applies to information regarding legally mandated marketing restrictions.
The costs arising from misdirected deliveries shall be borne by the contractor, provided that the contractor is responsible for the transport or is at fault for the misdirection of the transport. If the client’s order reference or acceptance notes are missing from the delivery documents, all costs incurred as a result, such as demurrage charges, re-routing fees, and the like, shall be borne by the contractor. The contractor may only invoke the failure to provide necessary documents to be supplied by the client if the contractor has not received the documents even after a written reminder.
The contractor is generally only entitled to make partial deliveries or provide partial services with the client’s written consent.
The client is entitled to return packaging that is in good condition to the contractor in exchange for reimbursement of the value thereof as stated on the invoice. Any other shipping instructions must be specifically noted on the delivery note. Packaging costs shall be borne by the contractor unless otherwise agreed in writing. If the client bears the costs of packaging in individual cases, these shall be charged at the lowest possible rate. The return obligations are governed by the Packaging Ordinance of August 21, 1998, as amended.
The client reserves the right to accept or reject excess or short deliveries.
If the Contractor is in default of delivery, the Client is entitled to the statutory claims. In particular, the Client is entitled to demand compensation for damages in lieu of performance after the fruitless expiration of a reasonable grace period set by the Client. The Client’s claim to delivery is only excluded once the Contractor has paid the compensation for damages.

11. Declaration of Origin

In the event that the Contractor issues declarations regarding the originating status of the goods sold, the following shall apply:

The contractor undertakes to facilitate the verification of proofs of origin by the competent customs authorities and to provide both the necessary information and any required confirmations.
The Contractor is obligated to compensate for any damage resulting from the declared origin not being recognized by the competent authority due to an incorrect certificate or the lack of a means of verification, unless the Contractor is not responsible for these consequences.

12. Access to and Use of the Client’s Premises/Construction Site

When entering and driving on the Client’s premises/construction site, the instructions of the Client’s technical staff must be followed. Entry onto or driving onto the worksite/construction site must be reported in a timely manner. The provisions of the StVO must be observed. The Client and its employees shall be liable, regardless of the legal basis, only for gross negligence and intent; in the event of injury to life, limb, or health, they shall also be liable for simple negligence.
If services are performed on the client’s premises or construction site, the applicable construction site regulations shall apply. Upon commencement of work or upon prior request, the contractor’s supervisors shall be provided with a copy of the construction site regulations, including the list of annexes, against signature. Knowledge of the contents of the construction site regulations, including the list of annexes, must be confirmed by a written declaration.

13. Transfer of Risk

Risk shall not pass to the Client until the delivery has been handed over to the Client or the service has been accepted by the Client. Acceptance is subject to inspection for freedom from defects, in particular for correctness, completeness, and suitability. We are entitled to inspect the subject matter of the contract to the extent and as soon as this is practicable in the ordinary course of business. Any defects discovered shall be reported by us immediately upon discovery. In the case of hidden defects, this applies from the time of discovery of the defect. The Client is expressly released from the obligation to immediately inspect the goods for defects. To this extent, the Contractor waives the objection of delayed notification of defects.

14. Warranty

The Client is entitled to the full scope of statutory warranty and compensation claims. The Contractor shall, in particular, be liable to the Client for ensuring that its deliveries and services comply with recognized technical standards and the contractually agreed characteristics and standards. Irrespective of this, the Client is entitled, at its discretion, to demand that the Contractor remedy the defect or provide a replacement delivery. In this case, the Contractor is obligated to bear all expenses necessary for the purpose of remedying the defect or providing a replacement delivery that the Client must bear in relation to its customer if the defect was already present at the time of the transfer of risk to the Client. A repair attempt by the Contractor shall be deemed to have failed after the first unsuccessful attempt. The right to claim damages, in particular for non-performance, is expressly reserved. The Client shall also be entitled to rescind the contract even if the Contractor’s breach of duty in question is only minor. Statutory warranty and guarantee claims shall become time-barred within 24 months after the transfer of risk, unless the law provides for longer periods. To the extent that the Client faces claims from third parties due to the defectiveness of the goods (contractor’s recourse), the statute of limitations shall be suspended until the expiration of a maximum of five years. The Contractor’s liability for defects shall end no later than ten years after delivery of the goods. This limitation shall not apply if the Client’s claims are based on facts of which the Contractor was aware or could not have been unaware and which the Contractor did not disclose to the Client. The Contractor hereby assigns to the Client—by way of performance—all claims to which it is entitled against its suppliers arising from and in connection with the delivery of defective goods. It shall provide the Client with all documents necessary for the assertion of such claims and shall issue all necessary declarations.
The Contractor shall remedy defects free of charge—including incidental costs. If this is not possible, or if it is unreasonable to expect the Client to accept repaired parts, the Contractor shall replace the defective parts with defect-free ones at no cost.
In urgent cases, or if the Contractor is in default regarding the rectification of defects, the Client may carry out the necessary measures at the Contractor’s expense or have them carried out by a third party. The Client shall notify the Contractor prior to carrying out the measures. If this is not possible, in urgent cases the measures necessary to prevent damage may be carried out without prior notification; in such cases, the Client shall provide notification immediately thereafter. The Contractor’s warranty obligation remains unaffected by this; this does not apply to defects attributable to measures carried out by the Client or a third party.
If rectification of a defect is not possible or cannot reasonably be expected of the Client, the Client may demand rescission or a reduction in price.
In the event of defects, the warranty period shall be extended by the time elapsed between the notification of the defect and its rectification. If the delivered item or service is redelivered, repaired in whole or in part, or replaced, the warranty period for the redelivered, replaced, or wholly or partially repaired item shall commence anew.
To the extent that the Contractor is responsible for product damage, the Contractor is obligated to indemnify the Client against third-party claims for damages upon first request, to the extent that the cause lies within the Contractor’s sphere of control and organization and the Contractor is personally liable in its external relations.
Within the scope of its liability for claims for damages within the meaning of the preceding paragraph (6), the Contractor is also obligated to reimburse any expenses pursuant to Sections 683, 670 of the German Civil Code (BGB) as well as Sections 830, 840 of the German Civil Code (BGB) that arise from or in connection with a recall campaign carried out by the Client. The Client shall inform the Contractor, to the extent possible and reasonable, of the content and scope of the recall measure to be carried out and shall give the Contractor the opportunity to comment. Other statutory claims of the Client remain reserved.
Liability arising from a breach of obligations under the Equipment and Product Safety Act is limited to products placed on the market after May 1, 2004. Furthermore, claims for damages exist only for such damages caused by an intentional or grossly negligent breach of obligations. Liability is—to the extent permitted—limited to the value of the product.

15. Prices, Invoicing

The prices stated in the order are fixed prices (plus statutory sales tax), inclusive of all discounts and surcharges, delivered free to the place of use, including packaging, corrosion protection, and shipping costs. In the case of delivery with freight charges payable by the customer, the customer shall bear only the most economical freight costs, unless the customer has specified a particular method of shipment. The manner of pricing does not affect the agreement regarding the place of performance. Unless otherwise agreed in writing, or if the contractor offers more favorable terms, the customer shall pay the agreed price with a 3% discount.
Payment and discount periods shall commence upon receipt of the invoice, but not before receipt of the goods or, in the case of services, not before their acceptance, and, if documentation, test certificates (e.g., factory certificates), or similar documents are part of the scope of services, not before their handover to the client in accordance with the contract.
The Client shall pay within 14 days with the above discount; however, the Client is also entitled to pay without deduction on the 15th of the month following delivery, provided that delivery has been made in full and without complaint and the invoice has been received.
The Client is entitled to rights of set-off and retention to the extent permitted by law.
Invoices, to be issued in duplicate, shall be sent after delivery/performance—separated by order—to the billing address specified in the order or to the client’s administration; order numbers must be indicated, and all billing documents (parts lists, work records, measurements, etc.) must be attached.
Invoices for partial deliveries/services must be marked “Partial Delivery Invoice” or “Partial Service Invoice,” and final invoices must be marked “Final Delivery Invoice” or “Final Service Invoice.”
Each invoice must show the statutory sales tax. Original invoices must not be enclosed with the delivery of goods.

16. Payment

The Client shall pay on the agreed due date following receipt of the goods.
Payments made do not constitute acceptance of the invoice.
Payments shall be made by check or bank transfer. Payment is considered timely if the check is mailed on the due date or the bank transfer is initiated at the bank on the due date. Interest on overdue payments cannot be claimed. The default interest rate is 5 percentage points above the base rate. The Client is in any case entitled to prove that the damages resulting from default are less than those claimed by the Buyer.

17. Prohibition on Assignment

Assignments and other transfers of the contractor’s rights and obligations outside the scope of § 354a HGB are excluded; exceptions require the written consent of the client to be effective.

18. Termination

The contract for work and services may be terminated by the Client at any time until completion of the work or delivery of the work in accordance with § 649 BGB. Notwithstanding the statutory consequences of termination, the following applies: If the Client terminates the contract for good cause attributable to the Contractor, the Contractor shall be entitled only to remuneration for the individual services rendered up to the receipt of the notice of termination that have been utilized by the Client. The Client’s claims for damages remain unaffected. In particular, the Contractor must reimburse any additional expenses incurred.
If the Client terminates the contract for good cause for which the Contractor is not responsible, the Contractor shall receive only the agreed remuneration for the individual deliveries and/or services rendered up to the receipt of the notice of termination and accepted by the Client. Any further claims by the Contractor are excluded. In all other respects, the consequences of termination as provided for in § 649 BGB shall apply.
The Client may withdraw from an order for deliveries (Section 433 of the German Civil Code (BGB)) at any time for good cause until the delivery is handed over. In this case, the preceding provisions shall apply mutatis mutandis with respect to the Contractor’s claim for remuneration; the Client shall acquire ownership of the remunerated partial deliveries and services.
A valid reason within the meaning of paragraph (3) exists in particular if, as a result of governmental decisions, the client’s interest in the performance of the contractual services ceases to exist, an insolvency petition is filed on the part of the contractor, the prerequisites for an insolvency petition are met, or the contractor fails to fulfill its obligation to remedy defective services within a reasonable period set in writing.

19. Waste Disposal

To the extent that waste is generated in connection with the Contractor’s deliveries/services, the Contractor shall recycle or dispose of the waste—subject to any written agreement to the contrary—at its own expense in accordance with the provisions of waste management law. Ownership, risk, and liability under waste management law shall pass to the Contractor at the time the waste is generated.

20. Weights, Quantities

In the event of weight discrepancies, the weight determined by the Client upon receipt shall apply, unless the Contractor proves that the weight calculated by it was correctly determined using a generally accepted method. This also applies analogously to quantities.

21. Industrial Property Rights (Patents, Licenses, Utility Models, etc.),
Copyrights

The Contractor shall be liable for ensuring that the delivery and use of the delivered items and/or the manufactured work do not infringe upon any patents or intellectual property rights of third parties. The Contractor undertakes to indemnify the Client against any claims by third parties arising from the infringement of such rights and to hold the Client harmless in all other respects. The Client is entitled to enter into agreements with the third party without the Contractor’s consent, in particular to settle the matter. Even if the Contractor holds industrial property rights, repairs may be carried out by the Client or its agents.

22. Confidentiality

The Contractor is obligated to treat all information received during the execution of the order as strictly confidential. This does not apply to information that was already known to the Contractor upon receipt or of which the Contractor has otherwise become aware (e.g., from third parties without a confidentiality reservation or through the Contractor’s own independent efforts).
All documents provided by the Client remain the Client’s property. They may not be made accessible to third parties and must be returned to the Client in full and without request upon completion of the order. Specialists and subcontractors engaged by the Contractor are not considered third parties if they have undertaken the same obligation of confidentiality toward the Contractor. The Contractor shall be liable for all damages incurred by the Client as a result of a breach of this obligation.
3. The Client shall have exclusive rights to use all illustrations, drawings, calculations, analysis methods, formulations, and other works produced or developed by the Contractor in connection with the conclusion and execution of the order.

23. Data Protection

The Contractor agrees that the Client may store, process, and transmit the Contractor’s personal data to affiliated companies to the extent necessary for the fulfillment and execution of the order.

24. Publication, Advertising

Any evaluation or disclosure of the business relationship with the Client in publications or for advertising purposes is permitted only with the Client’s express prior written consent.

25. Export

The Contractor is aware that the transfer of documents and items of any kind often requires authorization, e.g., under the Foreign Trade Act. The Contractor is responsible for ensuring that, in cases where it transports its own documents or items or the Client’s documents or items abroad, the eligibility for such transport is verified and—where necessary—all required authorizations are obtained in a timely manner and all relevant legal provisions are complied with.
In the event of a violation of these provisions, the Client reserves the right to assert claims for compensation for any resulting damages.

26. Place of Jurisdiction

To the extent that the Contractor 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 Client’s registered office shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. Furthermore, the Client is entitled to bring an action before the court having jurisdiction at the Contractor’s registered office.

27. Contract Language, Applicable Law

The contract language is German. German law applies.
2. If the Contractor has its registered office abroad, German law shall apply, excluding conflict of laws provisions and including the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980. Standard commercial clauses shall be interpreted in accordance with the applicable Incoterms – ICC, Paris.

28. Severability clause

Should individual provisions of this agreement be or become invalid or unenforceable, the remaining provisions shall remain valid.
The parties are obligated to replace the invalid or unenforceable provision with a provision that is as economically equivalent as possible from the time the invalidity or unenforceability takes effect.

E. Zoller GmbH & Co. KG
Terms and Conditions of Purchase /

Sprache wählen