General Purchase Conditions of Double Q GmbH (Corporation)
§ 1 Contractual Basis
1) We place our orders based exclusively on our general purchase conditions. Other conditions shall not become part of this contract, even if these are not specifically excluded. In the event we accept deliveries or services from our suppliers without express objections, this shall not, under any circumstances, be taken to constitute our agreement to any other conditions. These general purchase conditions shall also apply to all future contract agreements with our suppliers, even if reference is not specifically made to their applicability.
2) By processing our order, our suppliers agree unconditionally to our purchase conditions.
3) All agreements that contain an amendment or addition to or more detailed explana-tion of these contractual conditions, as well as those containing special warranties and arrangements must be made in writing. If they are approved by representatives or associates of Double Q, they are binding only if Double Q granted written consent.
§ 2 Conclusion of the Contract
1) The proposals must meet our inquiries; alternatives are welcome and must be identified as such. Proposals and estimates shall be non-binding and at no cost to us.
2) If our suppliers do not accept our order in form of a written order confirmation within 4 business days after receipt, we reserve the right to cancel the order.
3) Only written orders are legally binding. Verbal or telephone orders shall require our subsequent written confirmation to ensure their authenticity.
This also applies to verbal agreements and contractual amendments. Orders, forecast-delivery-schedules as well as changes or additions to the same may also be submitted electronically or by machine-readable data medium. E-mails encrypted in compliance with the German Digital Signature Act shall comply with the written form requirement.
§ 3 Pricing Structure 1)
The prices agreed are fixed prices, plus applicable VAT and are exempt from any additional claims. The charges for packaging and delivery to the shipping address designated by us or the final destination, as well as for customs documents and fees are included in the price.
2) We reserve the right to approve excess- or short deliveries.
§ 4 Service and Shipment
1) Please state our order reference number, project number and article description on shipping documents, bills of lading, packing lists and all correspondence.
We reserve the right to decline acceptance of the merchandise if incorrectly labeled or in absence of shipping documents.
2) Shipping is at the risk of the supplier. The risk of deterioration, including accidental loss, therefore remains with our supplier until delivery to the shipping address or point of use designated by us.
3) If quality control certifications regarding material control were agreed upon, they shall be considered an essential component of the shipment and must accompany the merchandise.
4) In the event of a defective shipment we are authorized to withhold partial payment until proper performance has been rendered. Our payment shall not constitute the acceptance of billing and first-time-through quality of the service.
§ 5 Packaging and Labeling
1) The packaging redemption obligation of our suppliers is governed by the statutory provisions. The merchandise shall be packaged in a manner that prevents transport damage. Packaging materials may be used only to the extent necessary to achieve this purpose. Only environmentally-friendly packaging shall be used. The supplier agrees to take back the packaging material at their own expense upon request.
2) All goods shall be delivered correctly sorted.
3) All packages must be labeled with the following data on the front of the packages at a minimum of DIN A5 format:
- article description
- article number (Double Q article number)
- quantity per package unit
- Double Q - order number
- packaging date
- weight per item
§ 6 Proof of origin, Proof of Legal Sales Tax, Export Limitations
1) The contractor shall immediately provide the proof of origin, including all necessary information and proper signature, as requested by us. This also applies to the proof of legal sales taxes for international and national shipments.
2) The supplier shall inform us immediately in the event a shipment is subject, in part or as a whole, to export limitations under German or any other law.
§ 7 Place of Fulfillment, Transfer of Risk
Our registered office is the place of fulfillment for delivery and service obligations, as well as all other obligations within the scope of this contract.
Risk is transferred to us upon acceptance of the merchandise at delivery, including assembly or mounting, as well as necessary services.
§ 8 Invoicing and Payment
1) Following the delivery, invoices shall be submitted separately in proper form, in duplicate together with all corresponding documentation and data. Invoices not duly presented, are not considered as received until the time of correction.
2) Payments shall be remitted according to custom and trade, i.e. within 14 calendar days at a 3% discount or net value after 30 calendar days after delivery/service and receipt of invoice.
3) Invoices shall be submitted in Euro. Payments shall be remitted in Euro.
§ 9 Securities
If we render a down-payment for our order we are authorized to request the cession by security of the respective materials at any time, especially for items ordered or items in process.
§ 10 Transfers, Subrogations, Company Changes
1) Without our express prior consent, the supplier may not relinquish any claims against us, in part or in full; we shall not withhold our consent without good cause.
2) For transfers based on retention of title ("verlängerter Eigentumsvorbehalt"), our consent is deemed to have been automatically granted from the outset, subject to the condition that we reserve the same rights against the recipient of the transfer that would apply without granting transfer to the supplier, including rights under other contractual provisions.
3) The supplier may not transfer the fulfillment of his contractual obligations to third parties, in part or in full, without our prior written consent.
If this consent is granted, the contractor remains liable for all claims.
4) The supplier is obligated to inform us immediately of any changes to the company name and any subrogation mandated by operation of law.
§ 11 Delivery Dates, Delayed Deliveries
1) The agreed delivery dates are binding. The receipt or successful acceptance of goods in a timely manner at the delivery address or point of use specified by us, is authoritative for compliance with the delivery date. Thus, the designated delivery date shall always be the date on which the merchandise is received and not the date on which the merchandise is shipped from the supplier's location.
2) If the supplier realizes that for any reason a delivery date cannot be kept, he shall notify us of this in writing immediately, stating the reason and the approximate duration of the delay.
3) The supplier is in default, even without an express reminder from us, if a delivery- or service date is exceeded.
4) If our requested delivery date is not met within the appropriate time frame, we are authorized to claim recovery of damages instead of service, or to arrange replacement through a third party, at our discretion. The claim for service is forfeited if we requested recovery of damages in place of the service.
§ 12 Guarantee, Warranty and Product Liability
1) The supplier shall guarantee and assure that all deliveries and services represent state of the art technology, are in compliance with all legal regulations and adhere to the regulations and guidelines of authorities, German employer's liability insurance and trade associations.
2) All services rendered by the supplier shall meet the quality characteristics as specified in our order, shall be suitable without restrictions for the customary life cycle and the intended purpose as
outlined in the contract, and, if this is not specified, they shall meet the standard market purpose at the time of risk transfer.
3) In the event the supplier renders substandard quality of goods or services, the statutory provisions granting us the right to choose the nature of compensation in regard to purchase, factory delivery and factory contracts – either subsequent improve-ment or replacement – shall apply. We shall be authorized to set an adequate time limit for subsequent performance, unless subsequent performance is unacceptable to us. In addition to cases regulated by law, such unacceptability may also apply if an impending inappropriate delay or uncertain success jeopardizes devices, equipment or installa-tions relevant to safety, or required for operational or business purposes. A mutual determination of the replacement time period shall have an equivalent legal effect to a deadline set by us.
4) In accordance with Section 637 at the German Civil Code (“BGB”), in addition to legal claims, we shall also be entitled to self-help and to assertion of a claim for advance payment in the event of material defects, if the set replacement period has expired; this also includes purchase and factory delivery contracts.
5) If we are entitled, by law or pursuant to contractual provisions, to terminate a con-tract due to services not rendered or rendered insufficiently, and the service not rendered or rendered insufficiently is limited to one part of the service only, the termination of the contract may also be limited to this particular part of the contract.
6) Upon exercising the right to termination due to failure to provide service or insufficient service provided, as well as in the event of a claim for damages instead of the service, we shall be entitled to an advance payment of a reasonable amount to cover the costs incurred if the service or partial service has to be obtained elsewhere. In this case we are only obligated to obtain several quotes if this does not result in significant delays or interruptions to operational, production or business practices. Personal contributions shall be invoiced at third party fair market value rates.
7) Insofar as we are obligated to investigate the service and notice of defects according to Section 377 (1) of the German Commercial Code (“HGB”), our time frame is two weeks after delivery. If a defect becomes apparent at a later date, the due date accor-ding to Section 377 (3) German Commercial Code is up to two weeks after discovery of the defect.
8) If a material defect becomes apparent within six months of transfer of risk, we shall assume that the item was already defective prior to the transfer of, unless this assumption is contradictory to the nature of the item or the defect.
9) The supplier undertakes to use environmentally friendly products and procedures for his deliveries/services and also for deliveries and supplemental services by third par-ties, as far as this is economically and technologically feasible. The supplier is liable for the environmental compatability of the products and packing materials delivered and for all subsequent damages that may result due to failure to fulfil the legal recycling obligations. He is also obligated to submit the safety documentation pertaining to the respective delivery at the time of delivery. The supplier shall indemnify us from all re-course claims by third parties in the event the safety documents were not submitted or were submitted at a later date. This also applies to amendments made at a later date.
10) In compliance with our mitigation of damages obligation, we may remedy minor defects without prior consultation. This shall not affect any warranty obligation.
We may charge the expenses incurred to the supplier.
11) Unless otherwise agreed, the statutory warranty period applies. The seller's warranty for exchange parts is valid for two years after installation/operation and ends up to four years after delivery. If production is interrupted due to the investigation of a defect and/or cannot continue while the defect is being corrected, the seller's warranty is extended by the duration of the interruption. The seller's warranty is effective upon receipt of the repaired or newly-delivered parts if applicable, or if acceptance is required, upon acceptance.
12) In the event we are held liable regarding defects in our products for violating official safety regulations based on national or international product liability regulations or laws, and such defects may be traced back to the supplier's merchandise, we are authorized to claim compensation for this damage if the damaged was caused by products delivered by the supplier. This also includes costs for a precautionary product recall. We shall notify the supplier regarding the extent and content of the recall measures - insofar as this is possible and reasonable - and provide him with an oppor-tunity to comment.
The supplier shall label his merchandise so they may permanently be identified as his products. The supplier shall conduct a state of the art technology quality control suitable in terms of nature and scope and shall verify it upon our request. If necessary, the supplier shall conclude a corresponding quality assurance agreement with us. In addition, the supplier shall obtain sufficient insurance for all risks regarding product liability, including recall risk, and shall present the insurance policy to us upon request.
§ 13 Industrial Property Rights
1) The supplier guarantees that all deliveries are free from rights of third parties and that no patents, licenses or other industrial property rights are
violated by delivery and use of the delivered items.
2) The supplier shall indemnify us and our customers from claims of third parties in regard to possible violations of industrial property rights after receipt of the first written request and shall bear all related costs incurred.
3) We are authorized, at the suppliers expense, to obtain permission from the entitled party to use the respective delivery items and services.
§ 14 Non-Disclosure, Proprietary Rights, Consumer Protection
1) Our suppliers undertake to treat all business or technical information disclosed du-ring the business relationship, such as commercial or technical details, know how, in particular drafts, layouts, samples or other information regarding the design or con-struction ("confidential information"), as a trade secret. Sub-contractors shall also adhere to this agreement and shall be named upon our request. If our supplier be-comes aware that confidential information has been disclosed to an unauthorized third party, or that a confidential
document has been lost, he shall notify us immediately.
2) We retain the proprietary rights and copyrights for all drawings, designs, calculations and other documents, as well as other confidential information, that were disclosed to the supplier for quotation purposes and order placement. These documents and confidential information may be disclosed to third parties only with our written consent. The supplier shall treat this information as confidential, shall ensure that it is inaccessible to third parties and relinquish them to us at any time upon request, at the latest upon contract completion. The supplier is responsible for the proper storage of these document and shall be held liable for loss and damages. Without prejudice to other rights, if the confidentiality agreement is violated, we may legally terminate the contract with the supplier without being subject to compensation for damages. The supplier shall obligate his employees and subcontractors to confidentiality in the same manner as he is obligated to us.
3) The items manufactured based on these documents and the relevant order documen-tation may be disclosed to third parties only with our consent.
4) The confidentiality agreement remains valid upon fulfillment of the contract, if confi-dential information is generally disclosed.
5) Documentation received shall be returned to the contract partners without notice upon conclusion of the business relationship.
6) The supplier agrees to refrain from contacting customers of the respective project, their clients or any other individuals involved in the respective project, without our prior consent, or to solicit and execute independent contracts from these customers and other involved parties. This is valid for the duration of one year after the project, as well as resulting contracts and work thereof are completed.
§ 15 Rights of Use
Upon full payment of the agreed fee Double Q acquires the unlimited rights to the undersigned's design and development services for the project, specifically sketches, fine-drawings, layouts, samples, models, ideas, concepts, construction drawings – irrespective of whether the services are on a creative level in accordance with Section 2ff. German Copyright Act (UrhG) - as well as unlimited use of the know-how generated in the course of the project (referred to collectively as "services") and utilization rights for all applications, resources and measures, without limitation in terms of time or location. All user rights in services contributed by the undersigned during the project but not selected for implementation shall also be transferred to Double Q. The under-signed is not authorized to make the services rendered within the scope of the project available to third parties or to use them for its own purposes.
§ 16 Reservation of Proprietary Rights, Tools
1) If we provide the supplier with parts, we reserve the proprietary rights therein. If the item provided by us is combined with other items that do not belong to us but are connected in a fashion that they cannot be separated, we shall acquire joint ownership in the
new item in the ratio of the value of the retained item to the other mixed items at the time of the amalgamation. If the amalgamation ensues in a manner that the supplier's part is considered to be the primary component, partial joint ownership is deemed to have been agreed; the supplier shall maintain the sole or joint ownership on our behalf.
2) We reserve ownership rights in the tools. The supplier agrees to utilize the tools exclusively to manufacture the goods ordered by us. He is obligated to insure our tools against fire, water, and theft damages for the replacement value, at his own expense. He is obligated to conduct all necessary maintenance work and inspections in a timely manner and at his own expense. He shall inform us immediately of possible anticipated breakdowns. We reserve the right to claim damages in the event of negligent non-compliance.
§ 17 Impediment to Performance, Legal Status of External Suppliers
1) If the supplier becomes impeded in regard to the contract fulfillment or if he anticipates impediment, he must notify us immediately,
stating the reason and the prospective duration of the impediment.
2) The supplier is liable for sub- contracted deliveries as he is for his own. In the event of suspected defect or damage in connection with the sub-contracted parts, services or sub-contractor service, the supplier is obligated to provide the information regarding the external supplier, distributor or subcontractors necessary for the purposes of pursuing a claim.
§ 18 Partial Ineffectiveness/Legal Venue
1) Should individual parts of these general purchase conditions be or become legally invalid, this shall not affect the validity of the remaining provisions.
2) If the customer is an entrepreneur as defined in Section 14 of the German Civil Code, the legal venue for any disagreements related to the performance of this contract shall be Hamburg. However, we reserve the right to assert claims at any other authorized place of jurisdiction.
3) In addition to these conditions, the law of the Federal Republic of Germany applies under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
