Terms and Conditions of Purchase
1. Applicability of these Terms and Conditions of Purchase
- These Terms and Conditions of Purchase apply to all affiliated companies of the MAQUET group within the meaning of § 15 ff. of the German Stock Corporation Act (Aktiengesetz), which companies incorporate these Terms and Conditions of Purchase into their contracts when placing orders.
- All of our current and future orders will be placed pursuant to our Terms and Conditions of Purchase in their current form as at the time of each order, and irrespective of whether we are dealing with businesses (§ 14 of the German Civil Code (Bürgerliches Gesetzbuch)), legal entities under public law, or special funds under public law (each, a “Supplier”). The general terms and conditions of supply of the Suppliers or other agreements that deviate from these Terms and Conditions of Purchase shall only be applicable if agreed to and confirmed by us in writing as an addition to our Terms and Conditions of Purchase.
- Any terms and conditions of a Supplier that deviate from or add to these Terms and Conditions of Purchase shall only be applicable and become an integral part of an agreement if we have expressly agreed that they should apply. Any attempt by the Supplier to incorporate its own terms and conditions by reference and any counter-confirmations by the Supplier contrary to the foregoing are hereby expressly excluded.
2. Offers, Orders and Order Confirmations / Acceptances
- Offers shall be made by the Supplier free of charge.
- Only orders placed in writing shall be valid (e.g. by e-mail, fax, etc.).
- The Supplier shall promptly reject or accept each order upon receipt thereof, but in any event by no later than two weeks of such receipt. If we have not received a confirmation within two weeks following the date of the order, we shall be entitled to revoke the order, unless delivery has already been made within these two weeks. The Supplier shall point out any mistakes and ambiguities in an order. Any deviation by the order from the order acceptance shall require our written confirmation (e.g. by e-mail, fax, etc.).
- Unless otherwise agreed, our orders shall be fulfilled by the Supplier itself. Subcontractors shall only be engaged subject to our written consent.
- Unless otherwise agreed, the prices set forth in our order, as confirmed by the Supplier, shall be binding.
- If no contrary agreement is made, all prices shall be freight prepaid including packaging (DDP Rastatt, Incoterms 2010). We will assume insurance costs only if we have agreed to do so.
- The agreed prices shall exclude value added tax (VAT).
4. Invoices and Certificate of EC Origin
- The invoice shall be sent to our postal address and shall not be enclosed with the shipment. Unless otherwise directed by us, the invoice shall contain the following information: The order number indicated in our order, the item number and the Supplier's VAT number. Two copies of the invoice shall be provided to and received by us promptly after delivery, but in any event by no later than five days thereafter.
- The Supplier shall be required to submit, by no later than with the first shipment, a statement pursuant to EC Regulation 1207/2001, which the Supplier shall repeat on 1 January of each year without being requested to do so, for as long as the prerequisites for the declarations are met, and our business relationship continues. (Alternative: declaration on every invoice).
- Invoices shall not be deemed to be due and payable until the requirements set out in clauses 4.1 and 4.2 are met.
5. Payment Terms
- Invoices will be paid net 30 days after delivery and receipt of a proper invoice, unless otherwise agreed.
- The payment term shall commence running upon receipt of the invoice pursuant to clause 4 (Invoices and Certificate of EC Origin) above, but in any event no earlier than receipt of the ordered goods. If the order number is missing from the invoice and/or the EC Certificate of Origin has not been provided, the payment term shall be extended until the information and documentation have been provided in full.
- We shall not be in default without having first been put on notice. To that extent, § 286(3) of the German Civil Code shall not apply. Our liability in the event of late payment shall be limited to interest in the maximum amount of 5 percentage points above the base interest rate according to § 247 of the German Civil Code.
- Every payment is made subject to us retaining the right to review the invoice.
- If we decide to accept an early delivery, the due date for payment shall nevertheless be the agreed delivery date.
- The Supplier shall transfer claims against us to third parties or have them collected by third parties only with our consent.
- Deliveries shall be made to us without retention of title, unless otherwise agreed in writing. Third party rights to goods of the Supplier that are intended for us shall be disclosed to us without us having to request this.
6. Delivery Dates and Deadlines
- The delivery dates and deadlines indicated in the order or delivery schedule shall be binding. Compliance with the delivery date or delivery deadline is determined by when the goods are received at the drop-off point.
- The Supplier shall not be entitled to effect partial deliveries without our prior written consent.
- The Supplier shall only be entitled to offset counterclaims or withhold deliveries or payments if such counterclaims are uncontested or have been determined by a final and binding court order, or if they entail mutuality obligations (Gegenseitigkeitsverhältnis) vis-à-vis our claims against the Supplier.
7. Shipment / Place of Performance / Risk of Loss
- Delivery shall be made to the delivery address specified on the order. Two copies of the delivery note shall be enclosed with the goods.
- To the extent that we do not transport the goods and / or determine the transport company ourselves, the place of performance shall be the shipment address specified on the order.
- Unless otherwise agreed, the transport insurance will be taken out by the Supplier.
- Shipment (even to a place other than the place of performance) shall be at the risk of the Supplier.
8. Late Delivery
- We shall be entitled to impose on the Supplier a contractual penalty of 0.2% of the value of the order for each completed business day of delay of a delivery that is late for reasons attributable to the Supplier, provided that this contractual penalty shall not exceed 5% of the total order value. We reserve the right to assert claims for damages in addition.
- If the Supplier foresees difficulties in materials procurement, production, etc., which could prevent it from delivering on time, the Supplier shall immediately inform us accordingly. This shall not, however, release the Supplier from its obligation to deliver on time.
- The acceptance of a late delivery or service by us shall not constitute a waiver of any claims for damages.
- If deliveries are late on a repeated basis, we shall be entitled to rescind this Agreement even if the Supplier can prove that the delay was caused due to reasons beyond the Supplier's control.
- The Supplier shall be entitled to invoke force majeure only if it has immediately informed us of this circumstance after obtaining knowledge thereof.
9. Quality and Documentation
- The Supplier expressly guarantees that only materials, parts and equipment will be delivered that meet the recognized state of the art rules for technology in every respect, e.g., the latest VDE regulations, the accident prevention regulations of the relevant trade associations, the applicable provisions of law (e.g. product safety or medicine safety law), as well as the applicable environmental rules (e.g. waste disposal, the RoHS Directive, as amended), even if this is not expressly mentioned in the order
- If we request an initial sample inspection, mass production shall not be commenced with until we have approved the sample in writing.
- The Supplier shall constantly verify the quality of the goods and structure its quality assurance system in such a way that it complies with DIN ISO 9000-9004 or DIN ISO 13485.
- We shall be entitled to ask the Supplier to make quality improvements.
- Changes in the features of goods shall be promptly reported to us in writing in advance within a reasonable period, but in any event by no later 12 months prior to their implementation.
10. Notice of Defects
- Our obligation to inspect the goods upon receipt shall be limited to defects that are obvious upon the conduct of an external examination, including an examination of the delivery papers, and during quality control testing being conducted on a random basis (e.g., transport damage, delivery of the wrong items or of less than the agreed quantity). We shall be entitled to notify obvious defects to the Supplier within eight business days after the end of the deadline for objecting to defects pursuant to § 377 of the German Commercial Code (Handelsgesetzbuch). To that extent, the Supplier waives the right to advance an objection on the basis that a notice relating to a defect was late.
- When defects in goods can only be discovered once the goods are being processed, notice relating to a defect may be made within a week of discovering any such defect.
- Payment of the purchase price prior to discovery of any defects shall not constitute an acknowledgment that the goods are free of defects and were duly delivered.
11. Force Majeure
If force majeure or other events that are not foreseeable at the time of entering into an agreement (e.g. business disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lock-outs, lack of manpower, energy or raw materials, difficulties in obtaining necessary permits from the authorities, actions by the authorities or failure by other suppliers to deliver, or incorrect or late deliveries by other suppliers) and are beyond our control, make the performance of our contractual duties to inspect the goods upon receipt and to report defects pursuant to clause 10 (Notice of Defects) above, or the acceptance of the goods impossible or materially more difficult, and the situation is not merely temporary, i.e., it lasts at least 30 days, we shall be entitled to rescind this Agreement in whole or in part or require delivery to be effected at a later time without prejudice to our other rights, and the Supplier shall have no claims against us in this regard.
- The limitation period for claims for defects shall be 36 months from the date of delivery of goods to us. In the case of works or building contracts (Werkverträgen), the date of acceptance shall be the relevant date.
- If the Supplier fails to comply with its statutory duty to remedy a defect – at our choice, either by eliminating the defect (Nachbesserung) or by delivering non-defective goods (Ersatzlieferung) – within a reasonable period set by us, then, in addition to the available statutory remedies (termination and damages), we may remedy the defect ourselves and require the Supplier to compensate us for the expense incurred in doing so, or require the Supplier to make an advance payment in this regard. If the Supplier's efforts to remedy the defect fail or would be unreasonable for us to accept (e.g. due to urgency, danger to industrial safety or threatening unreasonable damage) no notice is required to be given, provided that we will promptly inform the Supplier accordingly (and before the fact, if possible).
13. Product Liability
- Unless otherwise agreed, the materials and parts to be delivered to us are intended to be incorporated into medical products. These products are distributed worldwide. The Supplier shall perform all inspections of the goods manufactured and / or delivered by it – independent of any inspections conducted by MAQUET - and shall be responsible for ensuring that all goods delivered are free of defects. Any inspections performed by us shall not release the Supplier from its obligations; clause 10 (Notice of Defects) shall remain unaffected.
- Unless expressly provided for otherwise below, our claims against the Supplier for products liability shall be governed by the statutory provisions governing product liability. If we are sued for product liability or for violation of safety regulations or similar provisions under German or foreign law, the Supplier shall indemnify us for all damages incurred in this connection, including legal costs and expenses, to the extent that the Supplier is the manufacturer of the good that caused the defect within the meaning of the German Product Liability Act (Produkthaftungsgesetz). If several persons should be liable for the same defect, and thus obliged to pay damages, § 5 of the Product Liability Act shall apply. If we should be guilty of contributory negligence, § 6 of the Products Liability Act shall apply. If we should be required to recall products because of a defect in the goods for which the Supplier is responsible, or if a recall should, at least, be reasonable, the Supplier shall assume the costs of such recall. If the costs are to be allocated to several parties, § 5 and 6 of the Product Liability Act shall apply.
- The Supplier shall take out and maintain appropriate liability insurance in an amount of at least EUR 10 million. At our request the Supplier shall promptly provide us with evidence that such insurance cover has been procured.
14. Trade Secrets
- The Supplier shall treat our orders and all related commercial and technical details as trade secrets and use them only to perform its obligations to us.
- Without our written consent, goods produced using documents drafted by us (such as drawings, models and the like), or confidential information provided by us, or with our tools or tools manufactured by copying our tools, shall not be used by the Supplier itself, or offered or delivered to third parties. In addition, these goods and the documents drafted by us shall be returned to us on our request at any time.
- Parts that we have developed or further developed in cooperation with the Supplier may be delivered by the Supplier to third parties only with our written consent.
- We shall be entitled to save, use and process information about the Supplier regarding our business relationship or information in connection therewith, regardless of whether such information originated with the Supplier or with third parties, within the meaning of the Federal Data Protection Act (Bundesdatenschutzgesetz), to perform the contracts concluded with the Supplier and to process our orders, and we shall also be entitled to disclose such information to our affiliates and to third parties. The affiliates and third parties shall be entitled to use such information to the same extent as we are.
15. Means of Production
- Models, tools and equipment that are or were produced by the Supplier using our drawings and at our expense (the “Means of Production”) shall become our property upon payment therefor, unless co-ownership with the Supplier has been expressly agreed. We shall be entitled to demand that the Supplier hands over the Means of Production if the Supplier is in default or should become unable to continue to provide goods and services, unless the Means of Production are needed to perform existing contracts with us.
- The Supplier shall identify the Means of Production that belong to us as our property and insure them at replacement value against fire damage, water damage and theft. The Supplier hereby assigns all claims to compensation under this insurance policy to us at this point in time already, and we hereby accept such assignment.
- Documents of all kinds, such as samples, drawings, models and the like, which we provide to the Supplier, shall be promptly returned to us upon request, free of charge.
- Models, samples and drawings that we provide shall only be used to produce goods ordered by us.
- The Supplier shall be responsible for the careful storage, maintenance and repair of all materials, parts, Means of Production, samples, drawings, etc. The Supplier shall also bear the cost of purchasing parts to be replaced as a result of ordinary wear and tear. The Supplier shall bear the risk of the destruction of or damage to the Means of Production (even when this occurs accidentally or as a result of force majeure). We shall only be liable to reimburse the costs of repairs or to provide a replacement, if we are responsible for the damage or destruction.
- Forms, models, Means of Production, etc. shall only be destroyed with our consent.
- If the Supplier has co-ownership of any items, the Supply will hand over these items and transfers the Supplier’s co-ownership share in exchange for payment for the co-ownership share by us. If there should be a dispute over the amount of the co-ownership share, we can prevent a retention right based on the Supplier's co-ownership share by furnishing a (bank) guarantee for the disputed amount.
- The Supplier shall have no retention right to the Means of Production, documents, materials, parts, etc., to the extent that the claim on which the retention right is based is contested between the parties and has not been settled by a final and binding court order.
- Our liability for damage incurred by the Supplier through the Means of Production or the use thereof shall be limited to intentional misconduct, gross negligence and the tortious violation of material contractual obligations (Kardinalpflichten). If material obligations are breached, our liability shall be limited to the foreseeable damages that are typical and customary with regard to the nature of the contract.
- These Terms and Conditions of Purchase and the entire business relationship between us and the Supplier shall be governed by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
- The place of performance for goods and services provided by the Supplier shall be the shipment address.
- The exclusive venue for all disputes directly or indirectly arising from any contractual relationships shall be Rastatt, Germany. We shall also be entitled to sue the Supplier in the courts having general jurisdiction over the Supplier.
- If a provision of these Terms and Conditions of Purchase or a provision relating to any other agreements should be or become invalid, this shall not affect the validity of any other provisions or agreements.