Terms and Conditions of Purchase
AppSCREEN®, the original
Translated with DeepL (www.deepl.com)
Terms and Conditions of Purchase of AppSCREEN GmbH Version 04/2016
1. areas of application, definitions, rights to samples, parts provided, tools.
The Terms and Conditions of Purchase of the company AppSCREEN GmbH, hereinafter also referred to as “Customer” or “we” or “us”, shall become an integral part of all contracts for goods concluded by us with third parties (=”Contractor” =”Supplier” =”Seller”), unless deviations are agreed in writing in the contract. If there are any deviations or contradictions between the provisions of these Terms and Conditions of Purchase and the contract, the provisions of a contract agreed in writing shall prevail.
These Terms and Conditions of Purchase shall also apply to all our future transactions with this Contractor.
“Goods” within the meaning of these Terms and Conditions of Purchase shall mean objects, rights and other contractually agreed services of whatever kind and legal nature.
Any general terms and conditions of sale and delivery of the contractor (= third party terms and conditions) that conflict with or deviate from our terms and conditions of purchase shall not become part of the contract. This shall also apply if we have not individually objected to the third-party GTC provided or communicated to us. The acceptance of goods by us without objection shall not constitute acceptance of third-party GTC.
Drawings, drafts, data and other templates made available by us to the contractor, regardless of whether they are originals or reproductions, shall only be made available to him on loan and shall remain our property. They may not be used for other purposes, reproduced or transmitted to third parties or otherwise made known to them and they shall be returned to us as soon as possible, at our request or at the latest immediately after execution of the order.
If we provide items which are used in the goods, these shall remain our property. Processing or transformation shall be carried out by the contractor on our behalf and in the event of processing or mixing with third-party property we shall acquire co-ownership in the ratio in which the value of our items stands to that of the other items at the time of processing or mixing.
If we provide the supplier with items, in particular designs, data or tools, for the manufacture of the goods, we shall remain the indirect owner and the supplier, as the direct owner, shall hold these items in safe custody for us at its own risk. They shall remain our property, shall be marked and treated by the Supplier as our property and shall only be used for the performance of its delivery and service obligations towards us. Their objectively required maintenance, care and repair as well as their insurance in our favor against theft, damage or destruction by fire or other natural hazards shall be carried out by the Supplier in each case at his own expense.
These items shall be surrendered to us or to the third party designated by us by the Supplier at our request at any time, without the Supplier being entitled to oppose the claim for surrender with its own right of possession, right of retention or any other right. If third parties gain access to these items, the supplier must inform us immediately in writing and support us in defending against the encroachment on our rights of ownership and possession. We shall be entitled at any time to inspect these items at the supplier’s premises, to examine them, to exchange them or to have third parties do this for us in each case.
If we do not exercise or repeatedly fail to exercise any rights to which we are entitled under these Terms and Conditions of Purchase or the contract with the Supplier or by law, or if we do not expressly assert or reserve them at a particular time, this shall never constitute a declaration that we waive our rights or compliance with the provisions on which they are based for the past or for the future or that we do not assert our claims.
The headings of the sections of these Terms and Conditions of Purchase are for convenience only and shall not be used to determine, ascertain or interpret the contents of the respective provisions.
2. formal requirements, price agreement, origin, confidentiality
Contracts for goods and their amendments and supplements must be in writing within the meaning of Section 126 (I) and (II) of the German Civil Code (BGB) to the exclusion of all other forms such as text form, electronic or telecommunication transmission.
Unless one party expressly declares otherwise in its contractual offer or its declaration of acceptance or unless otherwise agreed in the contract, the written form shall be complied with – also contrary to the above section 2.1 and also for the conclusion of a contract – by exchange of letters, text form, transmission of letters by telefax, electronic or telecommunicative declarations and electronic data exchange.
Verbal agreements shall only be effective if they are immediately confirmed in writing by one party or if both parties act implicitly.
In the absence of an express written price agreement, a contract shall not be concluded and a call for services shall not be binding on us unless expressly agreed otherwise in writing.
In the absence of an express declaration to the contrary, any price quotation shall be understood to mean that the goods or services are to be handed over to us or provided to us in Munich (registered office) or at the expressly agreed other place of delivery and that all costs, levies, fees, taxes, customs duties, insurance, freight and packaging incurred or caused up to that point are included in the price.
Communications from the supplier to us, his delivery bills and his invoices must state our order and call-off data and our material number.
Upon our request, the supplier shall declare and/or prove the origin of the goods to us in writing.
We and the supplier are each obligated to treat all information that he or we receive from the other party within the scope of our business relationship, as well as the nature of the goods and the content of contracts, as strictly confidential and not to make it available to third parties and to ensure that the respective employees, agents or other third parties involved in the business relationship also fulfill this confidentiality obligation.
3. orders, acceptance period, content of contract, inspection, quality, quantities
Contracts shall be concluded in writing or by the Contractor declaring its acceptance to us in writing within 14 days of receipt of our order; our right to specify a shorter or longer period in the order shall remain unaffected. After the expiry of these 14 days or the expiry of the period set by us in the order, we shall be entitled but not obliged to revoke our order in writing until receipt of the declaration of acceptance. Even without his written declaration of acceptance, the first act of the Contractor by which he fulfils our order towards us shall be deemed to be his declaration to us that he accepts our order in its entirety.
If our order is accepted by the Contractor only with deviations, the Contractor shall expressly and prominently point this out to us in writing; the contract shall only be concluded with our consent.
Insofar as we do not expressly state this in our order, we do not accept with it any offer previously made to us by the supplier; rather, our order alone determines the content of the contract offered by us to the supplier.
Unless expressly stated otherwise in writing, offers made by the Supplier to us and our purchase orders shall always be understood to mean that the goods have the quality which is suitable for the intended use specified or resulting from the nature of the goods or customary in the industry, that they comply with the legal provisions applicable for this purpose in Germany, that all substances, preparations and objects of the Supplier comply with the specifications and other provisions of the REACH Regulation.
REACH Regulation, the goods are not subject to any trade or export restrictions applicable in Germany, they comply with the information in the technical descriptions, test certificates, certificates of origin, certificates or confirmations which we have requested from the supplier or received from the supplier up to the conclusion of the contract or which have been generally published by the supplier or with the supplier’s knowledge and that the goods are delivered to us free of third party rights.
The supplier is obliged to check our order competently with due diligence customary in the industry and to propose to us that the quality of the goods be changed if changes are necessary or expedient with regard to statutory or other mandatory regulations that have already changed or have changed up to the time of delivery or for technical reasons. This shall also apply to repeated deliveries/services under a contract already concluded.
Without our prior written consent, the supplier shall not be entitled to change the quality of the goods agreed in the contract or to deviate from the quantity agreed in the contract or specified in our delivery call-off. Deviations give us the right to refuse acceptance.
4 Acceptance, Dates, Quantities, Default, Contractual Penalty, Force Majeure, Transfer of Risk
Dates, deadlines and quantities according to the contract shall be binding. If we have the right to call off partial quantities from the supplier, the details in our delivery call-off shall be binding. The receipt of the goods at the contractual place of delivery shall be decisive for compliance with the delivery date or delivery period.
The Supplier shall notify us in writing without undue delay as soon as he realizes that he will not deliver the goods to us in accordance with the contract or the delivery call-off despite all possible and reasonable measures. The supplier shall inform us in writing of all causes for this as well as the measures taken by him to remedy the situation in a verifiable manner and at the same time inform us in writing of the new delivery date which is possible for him with certainty. Our rights due to delay in delivery and breach of contract shall remain unaffected.
The agreement of new dates in the event of delay or the unconditional acceptance of goods delivered late shall not constitute a waiver of our rights arising from delay in delivery.
All events of force majeure as well as operational disruptions of any kind for which we are not responsible and which cause a restriction or cessation of our operations shall entitle us to postpone the fulfillment of accepted acceptance obligations or, if the performance is no longer of interest to us at a later point in time, to withdraw from the contract in whole or in part. Force majeure shall be deemed to include strikes, lock-outs and other circumstances affecting us or third parties which permanently disrupt our operations and make it significantly more difficult or impossible for us to fulfill our obligations. We are obliged to inform the Contractor in writing about such situations and their effects on the business relationship as early as possible and reasonable.
All events of force majeure as well as operational disruptions of any kind for which the Supplier is not responsible and which cause a restriction or cessation of its operations shall entitle the Supplier to postpone the performance of assumed delivery obligations or, if performance is no longer possible for it at a later point in time, to withdraw from the contract in whole or in part. Force majeure shall be deemed to include strikes, lockouts and other circumstances at the Supplier’s or at third parties’ premises which permanently disrupt its operations and make it significantly more difficult or impossible for it to fulfill its obligations. The supplier is obliged to inform us in writing about such situations and their effects on the business relationship as early as possible and reasonable.
The risk shall not pass to us until the goods have been delivered to the agreed place of delivery and accepted by us without reservation.
5 Incoming Inspection, Warranty, Producer’s Liability, Statute of Limitations
We shall inspect goods delivered to us only externally for visible transport damage, for obvious defects and, on the basis of the transport documents, for the number of items and the identity of the delivery with the contract or the call-off; otherwise we shall have no obligation vis-à-vis the supplier to inspect goods upon receipt. We shall only carry out inspections with inspection methods related to the use or production or product in accordance with the circumstances of our proper course of business. If we give notice of defects within two weeks from the date of delivery of the goods, this notice of defects shall in any case be deemed to be in time, unless the defects were already evident at the time of delivery of the goods. By paying for goods, we do not declare that these goods have been inspected, accepted or are in conformity with the contract.
In the event of defective performance of the contract or performance in breach of duty, we shall be entitled to the full statutory claims. If a claim is made against us for defects in or damage to our products which were caused or contributed to by goods delivered to us by our contractor in a defective manner or in breach of duty, the provisions of Sections 478, 479 of the German Civil Code (BGB) shall apply mutatis mutandis to our recourse against our contractor, unless we have more extensive claims on the basis of other statutory or contractual provisions.
The Contractor shall indemnify us against any obligation arising from manufacturer’s liability, including any expenses arising from and in connection with recall actions, which affect us due to quality of the goods delivered by the Contractor which is contrary to the contract and insofar as these deviations were caused within its sphere of control or its organizational area or were not recognized in breach of duty. This shall also apply if we have further processed the goods. Any further legal claims to which we are entitled shall remain unaffected.
Unless otherwise provided for in our contractual agreement with the Contractor, the statutory provisions shall govern the commencement and the periods of limitation of our claims arising from defective performance of the contract or performance of the contract otherwise in breach of duty, with the duration of each statutory period of limitation being extended by a period of six months.
6 Payments, Discounts, Assignments, Maturity, Offsets
Unless otherwise agreed, we shall make payment – provided that the contract has been fulfilled and the invoice has been issued correctly – within 14 days of the goods and receipt of the invoice with a 3% discount or within 60 days without any discount. We are entitled to pay by sending crossed checks or by bank transfer at our discretion. Payment shall be deemed to have been made in due time if we can prove that we have given the payment order to the financial institution or sent the check to the Contractor within the aforementioned period.
If the invoices do not contain the information specified under 2.6, the 14-day period for discount deduction shall not commence until the day on which all the information required by us is available. We do not honor cash on delivery shipments; the resulting costs shall be borne by the supplier.
Without our prior written consent, which may not be unreasonably withheld, the Supplier shall not be entitled to assign its payment or other claims against us or to have them collected by third parties.
If our contractor suffers a financial collapse (=over-indebtedness, insolvency or imminent insolvency) and an application is therefore made to open insolvency proceedings against his assets, all our claims against him shall be deemed to be due and unconditionally payable at the time of the filing of an insolvency application, even if they are aged claims, claims subject to a condition precedent or claims subject to a condition precedent.
Insofar as we have claims against our contractor at this point in time which are not for money or whose monetary amount is undetermined or uncertain, we shall be entitled, at our reasonable discretion, to quantify the monetary amount owed to us by the contractor and to demand this from him.
If insolvency proceedings are opened against the assets of our contractor, we shall be entitled to set off against his claims also claims due to us which are still conditional or not yet due and/or which are due to a third party in which we have a direct or indirect interest at that time or which then has an interest in us. Insofar as at this point in time claims against the contractual partner are not directed towards money or their monetary amount is undetermined or uncertain, we shall be entitled, at our reasonable discretion, to quantify the monetary amount owed.
7 Applicable law, place of jurisdiction and final provisions
All claims and legal disputes arising from this contractual relationship shall be governed by the law of the Federal Republic of Germany, with the exception of the provisions of the UN Convention on Contracts for the International Sale of Goods, unless otherwise provided for in the contract and/or these Terms and Conditions of Purchase.
For all claims and legal disputes arising from this contractual relationship, the place of jurisdiction shall be D-81829 Munich, Germany, but we shall also be entitled to bring a legal dispute against the supplier before the court of its general place of jurisdiction.
If individual provisions of these Terms and Conditions of Purchase are invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by mutual agreement by a provision which corresponds to the economic purpose of the invalid provision. This shall apply accordingly if the Terms and Conditions of Purchase are invalid as a whole.