(Per: January 2011)
1. Scope of application
These Standard Terms and Conditions apply for all purchases and orders by DDL Fasteners GmbH (hereinafter referred to as "DDL"). They shall form an integral component of all agreements concluded by DDL with its suppliers concerning the goods and services offered by them. They shall also apply, as amended, as a master agreement for future contracts on the purchase and/or delivery of moveable property with the same supplier without the need for any express reference to these Standard Terms and Conditions in each specific case. All orders and any and all agreements concluded by DDL shall be governed exclusively by these Standard Terms and Conditions. Any conflicting or differing terms and conditions of the supplier are hereby contested. These shall be incorporated into the relevant agreement only if DDL expressly consents thereto in a specific case. These Standard Terms and Conditions shall also apply if DDL accepts deliveries by the supplier without reservation in knowledge of conflicting terms and conditions or terms and conditions that differ from those set forth herein. Individual agreements reached in a specific case with the supplier shall always have priority over these Standard Terms and Conditions. The contents of such agreements shall be governed by a written agreement or written confirmation by DDL.
2. Orders, contracts, conclusion of an agreement
Orders by DDL shall be deemed binding no sooner than upon written confirmation. The supplier shall notify DDL of any patent errors and omissions in the orders, including the order documents, for purposes of correction or completion prior to acceptance; otherwise the agreement shall not be deemed concluded. Unless DDL's orders expressly include a binding period, DDL shall be bound by the orders for two weeks following the order date. The supplier shall confirm the order in writing within two days or, in particular, perform it by rendering delivery without reservation (acceptance). Late acceptance shall be deemed a new offer and shall require acceptance by DDL. Modifications to the delivered goods shall require DDL's prior written consent.
3. Prices, payment terms, invoice information, right of retention
The price set forth in the order shall be binding. All prices shall include statutory value added tax unless it is shown separately.
In the absence of any written agreement to the contrary, the price shall include delivery and transport to the delivery address stated by DDL, including packaging. If the price reached in the agreement does not include packaging and the compensation for the packaging (including packaging that is not only provided as a loan) is not expressly stipulated, it shall be charged at the demonstrable cost price.
At DDL's request, the supplier shall take back the packaging at its own expense. Unless agreed otherwise, DDL shall pay the purchase price following full delivery of the goods and receipt of a due and proper invoice within 14 days with a 3% cash discount or within 30 days net. The order number, article number, delivery amount and delivery address shall be stated in all order confirmations, delivery papers and delivery notes and invoices. Should any of this information be omitted, resulting in processing by DDL being delayed during the ordinary course of DDL's business, the payment deadlines specified in Section 5 shall be extended by the period of such delay.
DDL shall have rights of set-off and retention as well as the defence of a non-performed contract to the extent stipulated under law. In particular, DDL may retain due and payable payments as long as DDL still has claims from incomplete or defective performance against the supplier. The supplier shall have a right of set-off or retention only based on counterclaims that have been confirmed in a final and binding judgment or are undisputed.
4. Delivery, passing of risk
The agreed delivery times stated by DDL in the orders (delivery date or deadline) shall be binding. The delivery must have been rendered to the delivery address stipulated by DDL within the agreed delivery time. If no delivery address is stated and no other agreement is reached, delivery shall be rendered to DDL's registered office. A delivery note stating the date (issue and shipment), delivery contents (article number and quantity) and delivery order identification (date and number) and the delivery address shall be included with the delivery. DDL shall not be obliged to take acceptance prior to expiry of the delivery time. The supplier shall notify DDL in writing and without undue delay if circumstances that prevent compliance with the delivery time occur or become evident. Should the supplier fail to render performance or fail to do so within the agreed delivery time or default, DDL's rights – in particular, its rights of rescission and to compensatory damages – shall be based on the relevant statutory provisions. The provision set forth below shall remain unaffected. Should the supplier default, DDL may – notwithstanding additional statutory claims – demand flat compensation of its default damage equivalent to 1% of the net price per completed calendar week up to a total, however, not exceeding 10% of the net price of the goods delivered late. DDL reserves the right to prove that it suffered greater damage. The supplier reserves the right to prove that DDL suffered no or significantly lesser damage. The supplier may not render partial deliveries unless expressly agreed otherwise. Acceptance of a late delivery or performance without reservation shall not constitute a waiver of DDL's claims for late delivery/performance. Even if shipment has been agreed, the risk for accidental loss and accidental deterioration of the goods shall only pass to DDL when possession of the goods is transferred to DDL at the agreed delivery address. Should acceptance have to take place, this shall govern the passing of risk.
5. Packaging, shipping
Unless agreed otherwise, the goods to be delivered shall be properly packaged by the supplier in compliance with industry standards. Unless agreed otherwise, DDL may itself stipulate the type of shipment (in particular, transport companies, shipping route).
The supplier shall be liable for damage or loss as a result of defective packaging.
6. Warranty, duty to lodge complaints
Unless agreed otherwise below, the statutory provisions shall apply to DDL's rights in the event of defects in the goods and other breaches of duties by the supplier. According to the statutory provisions, the supplier shall be liable, in particular, for the goods having the agreed quality upon passing of risk to DDL. In any event, those product specifications that – in particular, by virtue of reference or specification in DDL's order – form part of the subject matter of the respective agreement or are incorporated into the agreement in the same manner as these terms and conditions shall be deemed an agreement as to quality. In this respect, it shall not matter whether the product specification derives from DDL, the supplier or the manufacturer. Contrary to § 442 (1) sentence 2 of the German Civil Code (BGB), DDL shall also have defect-related claims without limitation if DDL remained unaware of the defect upon conclusion of the agreement as a result of gross negligence. If defective goods are delivered, DDL may demand subsequent performance from the supplier – at DDL's choice, by way of rectification of the defect or delivery of a defect-free item – within a reasonable period set by DDL. The supplier shall bear any costs incurred for inspection and repair; this shall also apply, in particular, if it emerges that there was not in fact any defect. Liability for compensatory damages in the event of an illegitimate demand for repair of defects shall remain unaffected; to this extent, however, DDL shall only be liable if it recognised or failed to recognise that there was no defect as a result of gross negligence. Should the supplier not meet its obligation to effect subsequent performance within the reasonable period set by DDL, DDL may itself rectify the defect and demand compensation from the supplier for the necessary expenses or an appropriate advance. If subsequent performance fails or may not be reasonably expected of DDL, no grace period need be set; the supplier must be notified without undue delay. The statutory provisions (§§ 377, 381 of the German Commercial Code (HGB)) shall apply to the commercial duty to perform inspections and file complaints subject to the following proviso: complaints concerning quality and quantity variances shall in any event be deemed timely if DDL notifies the supplier thereof within two weeks of receipt of the goods. Complaints concerning latent material defects shall in any event be deemed timely if the supplier is notified within two weeks of discovery thereof. This shall not apply to patent defects; these shall be subject to the relevant statutory provisions. DDL shall not waive warranty claims by accepting or approving models or samples submitted. Moreover, in the event of delivery of defective goods, DDL shall be entitled to reduction of the purchase price or rescission of the agreement in accordance with the relevant statutory provisions. Furthermore, DDL shall have compensatory damages claims and a claim to reimbursement of expenses in accordance with the relevant statutory provisions.
7. Product liability
The supplier shall be responsible for any and all claims asserted by third parties for personal injury or property damage attributable to a defective product delivered by it, and shall be obliged to indemnify DDL against any resultant liability. As part of its indemnity, the supplier shall reimburse expenses pursuant to §§ 683, 670 BGB resulting from or in conjunction with third party claims, including recall actions undertaken by DDL. DDL shall – to the extent possible and reasonable - notify the supplier of the content and scope of recall actions and give it an opportunity to provide an opinion. Other statutory claims shall remain unaffected. The supplier shall maintain product liability insurance at its own expense with minimum coverage of EUR 10,000,000. The supplier shall, at DDL's request, send it at any time a copy of the liability insurance policy.
8. Duty of notification
The supplier shall notify DDL of goods that require special treatment in terms of packaging, transport, storage, handling and waste disposal due to statutes, regulations or other provisions. The duty of notification shall include, in particular, relevant information on substances requiring registration under the Regulation on Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH).
9. Retention of title
Retentions of title on the part of the supplier shall apply only if they relate to DDL's payment obligation for the respective products in which the supplier retains title. Broader or extended retentions of title shall not be permitted.
10. DDL's documents
DDL shall retain title or copyright in any orders and other documents furnished by DDL. Such documents shall be used exclusively for the contractual performance. The supplier may not make them available to third parties or disclose them, nor may it use or reproduce them or have this done by third parties without DDL's express consent. Upon request by DDL, it shall return such documents and any copies in full to DDL if they are no longer required by it during the ordinary course of business or if negotiations do not result in conclusion of an agreement.
11. Industrial property rights
The supplier warrants that, in conjunction with its delivery, no third party industrial property rights in countries of the European Union, North America or other countries in which it manufactures products or has products manufactured are infringed. The supplier shall indemnify DDL against any and all claims asserted by third parties against it based on the infringement of industrial property rights referred to in paragraph 1 and shall reimburse any and all necessary expenses in conjunction with such claims, in particular, those pursuant to §§ 683, 670 BGB. This claim shall vest irrespective of any fault on the part of the supplier.
12. Replacement parts
The supplier shall keep replacement parts for the products delivered to DDL for a minimum period of 10 years following delivery. Should the supplier intend to cease production of replacement parts for the products delivered to DDL, it shall notify DDL of the decision to cease production without undue delay following the decision. Subject to the foregoing paragraph, such decision must be made no less than six months prior to cessation of production.
13. Limitations period
The mutual claims of the contracting parties shall become time-barred in accordance with the relevant statutory provisions, unless provided otherwise below. Contrary to § 438 (1) No. 3 BGB, the general limitations period for defect-related claims shall be three years from the passing of risk. Should acceptance be agreed, the limitations period shall commence upon acceptance. The three-year limitations period shall also apply accordingly for claims based on legal defects in title, in which respect, the statutory limitations period for third party restitution claims in rem (§ 438 (1) No. 1 BGB) shall remain unaffected; moreover, claims based on legal defects in title shall in no event become time-barred, as long as the third party is still able to assert the right – in particular, in the absence of any limitations period – against DDL. Upon receipt of a written notice of a defect by the supplier, the limitations period for warranty claims shall be suspended. The limitations periods under sale of goods law, in particular, the foregoing extension, shall apply to the extent permitted by law for all contractual defect-related claims. Should DDL also have extra-contractual compensatory damages claims based on a defect, the normal statutory limitations period (§§ 195, 199 BGB) shall apply in this respect if application of the limitations periods under sale of goods law does not result in a longer limitations period in a specific case.
14. Quality management system, supplier audit
The supplier shall, in rendering performance under the relevant agreement, use an appropriate quality management system and, upon DDL's request, provide proof thereof. DDL and the authorities may assure itself that the supplier meets quality standards by conducting system, process and/or product audits. The supplier shall cause its sub-contractors to enter into the same obligations as those set forth in this Section 14.
The supplier shall keep confidential the terms and conditions of the order and any and all information and documents provided for this purpose (with the exception of information in the public domain) and shall use it only to perform the order. Upon request, it shall immediately return these to DDL following settlement of enquiries or orders. The supplier shall cause its sub-contractors to enter into the same obligations as those set forth in this Section 15.
16. Data protection
The supplier shall advise pursuant to § 33 (1) of the Federal Data Protection Act (Bundesdatenschutzgesetz, BDSG) that DDL stores the supplier data in machine-readable form and processes it within the framework of the purposed of the contractual relationship with the supplier and for marketing purposes.
17. Place of performance, forum, applicable law
This agreement shall be governed solely by the laws of the Federal Republic of Germany. The United Nations Convention on the Contracts for the International Sale of Goods (CISG) shall be excluded. Only the German version of these Standard Terms and Conditions shall be binding. To the extent permitted by law, sole forum for any and all disputes under the contractual relationship is Augsburg. However, DDL may sue at the supplier’s registered office. Legal declarations and notices to be rendered by the supplier to DDL following conclusion of the agreement shall be valid only if in writing. References to statutory provisions are for clarification only. Therefore the statutory provisions shall apply even without such clarification, unless they were expressly excluded in the Standard Terms and Conditions. Should one or more of these provisions be invalid, the validity of the remaining provisions shall remain unaffected thereby. The parties hereby agree that the invalid provision shall be deemed replaced by a valid provision that most closely reflects the spirit and intent of the invalid provision.
18. Right of Access
DDLfasteners GmbH grants right of access by the organization their customer and regulatory authorities to the applicable areas of all facilities, at any level of the supply chain, involved in the order and to all applicable records.
19. Counterfeit parts (Bogus parts)
You as a supplier of DDLfasteners must plan, implement and control a process that identifies and prevents the release of unapproved and suspected unapproved parts as well as counterfeit parts (Bogus parts).