Purchasing Conditions of PENTACON GmbH
§ 1 Scope
(1) The terms of purchase apply to all orders from PENTACON GmbH and are exclusive. They apply to all future deliveries even if they were not separately agreed upon at a later.
(2) Contrary or additional terms and conditions of the ordering party are expressly refused. They will only become part of the contract if PENTACON GmbH consents to their integration in the framework of an individual agreement.
§ 2 Conclusion of Contract
(1) Orders must be made in text form in accord with § 126 b BGB [German Civil Code] (e.g. letter, fax, e-mail).
(2) To the extent that orders from PENTACON GmbH do not expressly include a binding period, there is a binding period of 10 calendar days from the date of the order. Definitive for timely acceptance is the receipt of the acceptance in text form.
(3) No oral side agreements exist.
§ 3 Execution/Performance of Services
(1) The contractor will perform its services according to the state of the art.
(2) Contractor must comply especially with the laws and regulations in force in the Federal Republic of Germany as well as all requirements of the authorities, to heed decisions of the courts and to follow the technical rules, norms and guidelines that are in force on the date of the conclusion of this contract.
(3) Reference must be made to any drafts of new or modified regulations. If these regulations and decisions or the state of the art change between the conclusion of this contract and acceptance, and this has a significant influence on the services to be performed by the contractor, PENTACON GmbH will immediately provide information in writing about the resulting consequences for deadlines and costs. The contractor is subject to a corresponding duty to inform in the event that it becomes aware of improvements and/or options for technological change. PENTACON GmbH will make a decision about the changes within a reasonable period of time. Should PENTACON GmbH decide on a change, the parties will reach an amicable agreement concerning costs on the basis of the order.
§ 4 Quality Management and Quality Assurance Agreement
(1) The contractor is obligated with respect to the services to be performed for PENTACON GmbH to establish and maintain a quality management system (e.g. in accord with DIN EN ISO 9001ff). The contractor must generate records of its quality tests. PENTACON GmbH is entitled to review the quality management system after coordinating with the contractor and to view the contractor’s records. At any time and free of cost to itself, PENTACON GmbH can specifically demand of the contractor that audits be performed to review the quality management systems at the contractor’s business premises or those of any sub-contractors it engages. To the extent that costs accrue to PENTACON GmbH through the execution of audits, these are not to be reimbursed by the contractor. The contractor is entitled to deny PENTACON GmbH access to its business secrets or any other confidential information and/or demand that PENTACON GmbH conclude a confidentiality agreement.
(2) On demand from PENTACON GmbH, the contractor is obligated to conclude a quality assurance agreement and fulfil the obligations deriving from this agreement.
(3) The contractor and any sub-contractors it engages will employ qualified personnel. On request from PENTACON GmbH, the contractor will present corresponding proof of qualifications.
§ 5 Assignment to Subcontractors
(1) Engagement of subcontractors requires the prior consent of PENTACON GmbH. The contractor will impose upon the sub-contractors all obligations that it has accepted with respect to PENTACON GmbH and assure that they are fulfilled.
(2) If the contractor engages sub-contractors without prior consent as specified in Paragraph 1, PENTACON GmbH has the right to withdraw from the contract and/or demand compensation for damages.
(3) The contractor may not prevent its sub-contractors from concluding contracts for other goods/services with PENTACON. Especially prohibited are exclusive agreements with third parties that prevent PENTACON GmbH or the sub-contractor with reference to goods/services that PENTACON GmbH itself or the sub-contractor requires for the completion of such commissions.
§ 6 Delivery
(1) The deadlines stated for delivery of goods and/or services from the contract in the order are binding. Should a delivery be completed before the agreed-upon delivery date, PENTACON GmbH is entitled to send the good back to the contractor at cost and risk to the contractor. If PENTACON GmbH does not assert the aforesaid right to return, storage of the good at the business premises of PENTACON GmbH will proceed until the agreed upon delivery date at cost and risk to the contractor.
(2) The contractor is obligated to immediately inform PENTACON GmbH in writing to the extent that conditions occur or become recognisable that make it apparent that the agreed-upon deliver or service deadline cannot be met. The contractor may only appeal to documents to be provided by PENTACON GmbH not being forthcoming only if these documents have not been received by the contractor in spite of written reminders sent to PENTACON GmbH.
(3) Partial shipments are only permitted with the prior consent of PENTACON GmbH.
§ 7 Transfer of Risk
Even if shipping has been arranged, risk first transfers to PENTACON GmbH when the shipment/service has been handed over to it at the destination or accepted by it.
§ 8 Warranty
(1)PENTACON GmbH is entitled to assert claims due to defect in the legal scope. PENTACON GmbH can, at its discretion, demand subsequent fulfilment in the form of repair of the defect or delivery of an item free of defect and/or manufacture of a new work.
(2) With the receipt of the written defect report at the contractor’s business premises, the expiration of warranty claims is suspended. If the contractor acknowledges the defect, the warranty period for replaced and repaired goods begins to run again starting from the replacement shipment and/or remedy of defect.
(3) PENTACON GmbH is entitled to undertake remedy of defect itself at cost to the contractor to the extent that there is risk of delay or there is especial urgency. This also applies if the contractor is delayed in remedying the defect. The right to compensation for damages, right to reduction or the right to withdraw from the contract are unaffected by this.
(4) In the case of delivery of goods that PENTACON GmbH must inspect in accord with § 377 HGB [German Commercial Code], the deadline for inspection and report of an obvious defect is 12 work days from receipt of the shipment. There is no obligation to report the defect on the part of PENTACON GmbH does not exist for concealed defects in goods from the contractor that are subject to the agreed upon quality assurance system. To the extent that goods are subject to the agreed-upon quality assurance system, PENTACON is only obligated to conduct a minimal inspection based on the delivery note and inspect for damages from transport. Otherwise, the reporting period for concealed defects is 12 work days from discovery of the defect.
§ 9 Protected Rights
(1) Contractor will make sure that the protected rights of third parties are not infringed upon in connection with its delivery. On demand, PENTACON GmbH will inform the contractor in which countries the parts/products are distributed.
(2) The contractor indemnifies and holds harmless PENTACON GmbH and customers of PENTACON GmbH from any third party claims deriving from infringements of protected rights for which it is at fault and will bear all necessary costs that PENTACON GmbH incurs in this context.
§ 10 Product Liability
If product liability claims are raised against PENTACON GmbH, the contractor is obligated to indemnify PENTACON GmbH against such claims if and to the extent that such damages have been caused by a fault in the goods delivered by the contractor. The contractor must indemnify PENTACON GmbH especially from all costs including the expenses for mandated recalls and the legal costs of any legal prosecution. IN cases of culpable liability, the rules stated above do not apply, to the extent that the contractor cannot be held culpable. Otherwise legal regulations apply.
§ 11 Liability and Mandated Product Liability Insurance
(1) The contractor must, at own cost and for the duration of the contract including warranty and expiration periods for claims arising from defects, conclude a liability insurance policy under terms and conditions usual and customary to the industry. The current validity of this policy must be proven to PENTACON GmbH on demand by presentation of a copy of the insurance policy.
(2) Moreover the contractor must demonstrate to PENTACON GmbH at the start of the contract and on request made at any time that it holds a product liability insurance policy and recall insurance with coverage of at least € 1,000,000 per insurable incident by presenting a copy of the insurance policy and must maintain this insurance coverage even after the total completion of the reciprocal contractual obligations for a period of ten years after the processed delivery items have been put into circulation by PENTACON GmbH.
§ 12 Shipping
(1) The contractor must choose the type of shipping specified by PENTACON GmbH in the order. Shipments are to be packed so that damage in transport is avoided. The contractor is liable for all damages caused by defective packaging.
(2) To the extent that nothing to the contrary is indicated by PENTACON GmbH, shipping is to be addressed to PENTACON GmbH, Foto- und Feinwerktechnik, Enderstraße 92, 01277 Dresden, Germany. The contractor will make sure that delivery is only completed during the following receiving periods at the business premises of PENTACON GmbH:
Monday – Thursday: 07:00 - 15:00
Friday: 07:00 - 14:00
(3) Along with the shipping address, the order information (order number, order date, delivery site, name of recipient and material number) are to be stated in the transport papers. The order in particular must be specifically noted on waybills, postal package shipments, etc.
(4) Costs incurred from incorrect routing of shipments will be borne by the contractor, to the extent that it is responsible for incorrect routing.
§ 13 Prices
(1) The prices named in the order including all discounts and added fess are fixed prices plus the legally mandated VAT.
(2) The prices apply for delivery free to the delivery address specified by PENTACON GmbH, including packing and shipping.
(3) Should in individual cases shipping ex works or ex stock be arranged, PENTACON GmbH will bear the transport costs excluding the costs of packaging and the costs incurred to the contractor through to transfer to the specific carrier (such as preproduction costs, loading charges, cartage, etc). The transportation costs are to be paid by the contractor first and separately billed to PENTACON GmbH, to the extent that the transport company is not commissioned by PENTACON GmbH.
§ 14 Billing, Terms of Payment, Default, Prohibition of Assignment
(1) Invoices are to be sent to PENTACON GmbH in duplicate – separately - in writing or electronically. The second copy is to be labelled as such. The order number must be stated and all billing documents (parts lists, certificates of employment, dimensions, etc) are to be enclosed. For every order a separate invoice is to be issued if collective invoices have not been agreed upon expressly.
(2) Invoices will be paid –to the extent that nothing else has been arranged -:
- within 14 days of delivery and receipt of invoice with a 3 % discount or
- within 40 days of delivery and receipt of invoice without deduction
(3) Assignments and other transfers of rights and obligations held by the contractor beyond the scope of § 354 a HGB [German Commercial Code] are excluded, to the extent that PENTACON GmbH did not issue prior consent for this in the individual case.
§ 15 Reservation of Title
(1) PENTACON GmbH reserves title or copyright on all orders and commissions given, as well as all drawings, illustrations, calculations, descriptions and other documents provided to the contractor. Without the prior consent of PENTACON GmbH, the contractor may not grant third parties access to them, nor disclose them, use them itself or have them used by third parties or reproduce them. The contractor must return these documents in toto on request from PENTACON GmbH of they are no longer needed by it for regular business or if negotiations are no longer going to lead to the conclusion of a contract. Any copies of these made by the contractor are to be destroyed in this case; the exception are those kept on file to meet legal obligation to keep business documents as well as data storage for security purposes in the framework of regular data security.
(2) Tools, equipment and models that PENTACON GmbH provides the contractor or that are made for purposes of this contract and for which PENTACON GmbH is separately billed by the contractor remain the property of PENTACON GmbH or become property of PENTACON GmbH. They are to be labelled as property of PENTACON GmbH by the contractor, stored with all due care, insured against damages of any kind and only used for the purposes of this contract. The costs for storage or repair of these objects will be borne by the contracting partners– barring any other arrangement– each at half.
To the extent that these costs are attributable, however, to defects in such objects manufactured by the contractor or improper use by the contractors, its employees or other auxiliary personnel, they will be borne by the contractor alone. The contractor will immediately inform PENTACON GmbH of all damages to these objects that are not inconsequential. Only on request is the contractor obligated to surrender these objects to PENTACON GmbH in proper conditions, if they are no longer needed by the contractor to fulfil contracts concluded with PENTACON GmbH.
(3) Reservations of title on the part of the contractor only apply to the extent that they have reference to the payment obligations PENTACON GmbH for the specific products on which the contractor reserves title. Especially impermissible are expanded or extended reservations of title.
§ 16 Secrecy/Confidentiality /Advertising
(1) The contractor is obligated to treat as confidential all confidential information, business and trade secrets obtained in the course of the contractual relationship, especially not to share them with third parties or commercially develop them for purposes other than those specified in the contract.
(2) The contractor will make sure that all persons who are entrusted by it with the processing or fulfilment of the contract heed all legal provisions concerning confidentiality. The formal obligation to maintain data secrecy under confidentiality law will be imposed at the latest prior to initiation of activities related to performance of services from this contract and will be demonstrated to PENTACON GmbH on demand.
(3) A review or disclosure of the existing business relationships with PENTACON GmbH in publications or for purposes of advertising and/or exhibition of delivery items made for PENTACON GmbH is only permitted with the prior consent of PENTACON GmbH.
§ 17 Authorised Economic Operator
PENTACON GmbH holds the status of “Authorised Economic Operator” in accord with the guidelines of the European Commission (“Authorized Economic Operators”-AEO). To the extent that the contractor is not a certified “Authorised Economic Operator” in the sense of the afore named guidelines, this party is obligated on first request to immediately submit a “Declaration of Security for Authorised Economic Operators” for customs (www.zoll.de) and demonstrate this to PENTACON GmbH.
§ 18 Place of Fulfilment, Court of Jurisdiction, Applicable Law, Contract Language
(1) Place of fulfilment and sole court of jurisdiction for all disputes arising form or in connection with this contract is Dresden.