Terms of Delivery, Service and Payment
§ 1 Applicability of Terms of Delivery & Service
- The following Terms of Delivery & Service apply to all deliveries made to and services performed for businesses by TKD of companies. All present and future legal relations between TKD and the PURCHASER are governed by TKD`s Terms of Sale in the currently applicable form. Divergent provisions, in particular purchasing terms of the PURCHASER, become part of contract only if they have been expressly agreed in writing.
- Where framework agreements have been concluded between the parties, these take precedence. They are augmented, unless specific arrangements have been made, by these Terms of Delivery & Service.
§ 2 Formation of contract / Quotations
- Orders and supply contracts together with any warranties require written acknowledgement by TKD. This written-form requirement may only be waived by written agreement.
- Quotations given by TKD are without engagement.
§ 3 Prices, payments, purchase shortfalls, samples
- Deliveries and services are supplied at the prices and on the terms contained in the supply contract/quotation and/or TKD´s order acknowledgement. The prices quoted therein are binding.
- Prices quoted are from the supplying company`s place of business and depot. In addition to the agreed prices TKD is entitled to charge metal surcharges. The basis for calculating these is the published stock exchange quotation for German Electrolytic Copper for Conducting Purposes (DEL) on the day preceding the order-receipt date plus 1% for metal supply costs. The selling price increases or decreases by the difference between copper base and DEL quotation. The prices for wires from TKD include a copper base of € 150.00 per 100 kg copper, unless different values are cited with the quoted price. The price base for metal articles made of brass is the quoted metal price for MS 58 of € 150.00. If the quoted metal price rises by € 13.00, a 5% surcharge is added to the contract price. Where other metals are used (e.g. aluminium, lead etc.) , charging is analogous to that for the price of copper. The figures given in the quotation and metal/raw- material prices are the starting point. Surcharges and deductions are always net.
- The price includes the non-returnable drum provided by TKD for transport purposes. However, TKD reserves the right - specifically for PURCHASERS who are KTG members - to ship using KTG returnable drums instead of non-returnable ones. KTG returnable cable drums are provided on KTG`s known terms, which may be requested from KTG GmbH in Cologne at any time. If the loan period is exceeded, KTG is entitled to claim drum hire direct from the PURCHASER.
- Outward and return shipments are made in all cases at the PURCHASER`S expense and risk; the same applies to the bearing of risk if TKD meets the transport costs or effects the transport.
- An appropriate inclusive price is deemed agreed for processing or supplying samples and for purchase shortfalls. The same applies to made-to-order goods.
- All invoices are - unless other arrangements have been agreed in writing - payable within 10 days at 2% discount on the goods - net value (without metal surcharges), otherwise within 30 days without deduction.
- For late payment interest on arrears is due at an appropriate rate, but not less than at the customary banking rate or the statutory interest rate (§ 288 BGB [German Civil Code]), at TKD`s discretion. Where TKD decides to accept bills of exchange, it does so only as conditional, not definitive, payment. TKD is entitled to revoke the deferral implicit in acceptance of a bill at any time and to demand immediate payment. When bills are discounted, the bank discount and collection charges are levied from the invoice maturity date and are payable immediately in cash.
- Retention of payments because of or offsetting against claims on accounts payable to TKD are only admissible for the PURCHASER if his claim(s) has(have) been accepted by TKD, established in law or is (are) ripe for decision.
§ 4 Delivery period
- Agreed delivery or service dates are without engagement unless there is express contrary stipulation in the written order acknowledgement / call-off order / quotation / contract.
- The delivery period starts on dispatch of the order acknowledgement, but not before the items, documents, approvals, releases to be furnished by the PURCHASER have in fact been furnished or before a stipulated payment has been received. If at the stipulated time components to be furnished by the PURCHASER have either not been supplied or not supplied in defect-free form, the delivery period is extended by one month for each month or part-month, plus one additional month.
- The delivery period has been complied with if, by the time it ends, the goods to be supplied have left the factory or dispatch-readiness has been notified.
- The delivery period is extended appropriately during measures taken in connection with industrial disputes, in particular strikes and lockouts, and when unforeseen obstacles arise outside TKD`s control, where such obstacles have a demonstrably material impact on manufacture or delivery of the contract goods. This also applies when these circumstances apply to subcontractors. The above circumstances are not the responsibility of TKD even if they arise during an already established default. In major cases TKD will inform the PURCHASER as soon as possible of the start and end of such obstacles. Compensation for delayed performance is precluded in the case of deliveries delayed by less than two months. Above and beyond this or when payment of compensation is imperative, the following applies:
- If the PURCHASER incurs loss because of a delay resulting from TKD`s own negligence, he is entitled, to the exclusion of other claims, to demand compensation for delayed performance. For each full week of delay this amounts to 0.5%, but in total not more than 5% of the value of that part of the complete delivery which, because of the delay, cannot be used at the right time or in accordance with contract.
- If shipment is delayed at the PURCHASER`S request, he is charged, starting one week after notification of dispatch-readiness, for the costs incurred for storage, for storage at TKD`s plant, but at least 0.5% of the invoice amount for each month or part-month. TKD is, however, entitled after a reasonable period has been set and has expired fruitlessly to dispose of the contract goods elsewhere and supply the PURCHASER, taking a commensurately extended period in which to do so. Further-reaching claims, in particular rights under §§ 293 ff. (304) BGB, reside with TKD, account being taken of the PURCHASER`S payments. The same applies to its rights under §§ 280 ff. BGB and to the right to performance.
- Observance of the delivery period is dependent on the PURCHASER`S contractual obligations being fulfilled.
§ 5 Passing of risk and acceptance
- The risk passes to the PURCHASER at the latest when the parts for delivery are dispatch-ready at TKD, even when instalment deliveries are made or TKD has undertaken additional payments, e.g. shipping charges or carriage and/or setting up. At the PURCHASER`S request, TKD will insure the consignment at his expense against damage/loss in transit or through theft, breakage, fire or water and also against other insurable risks. In the case of free delivery to a specified handover point (e.g. FOB) the risk passes on delivery there, even if the Purchaser is not prepared to receive the goods there.
- If shipment is delayed due to circumstances for which the PURCHASER is responsible, the risk passes to the PURCHASER from the date of dispatch-readiness; TKD is, however, obliged at the PURCHASER`S request and expense to effect the insurances requested by him.
- Delivered items with minor defects are to be received by the PURCHASER without prejudice to rights under § 11.
- Instalment deliveries are acceptable. All deliveries by TKD are made ex works ("EXW-" INCOTERMS 2000), unless in a particular case something else has been contractually agreed.
§ 6 Refusal of acceptance / to take delivery
- If the PURCHASER refuses acceptance of the contract goods or service, TKD may set him a reasonable period for acceptance or taking delivery. If the PURCHASER has not accepted or received the contract goods within the set period, TKD is entitled, without prejudice to its right to contract performance, to cancel the contract or claim compensation for non-fulfilment. TKD may, in any event without proving the loss actually incurred and without prejudice to the option to claim a higher actual loss, claim lump-sum compensation at 20% of the net order value for standard goods and 100% for goods not saleable elsewhere or for cable lengths already cut to size for the customer. The PURCHASER remains free to prove a lower actual loss.
- If acceptance has been stipulated or is mandatory, TKD is in all cases entitled to request acceptance if substantive defects are no longer present and serviceability and operational capability are warranted. Major defects are defects which cast doubt on or substantially reduce fitness for purpose. In this case TKD must propose several possible acceptance dates to the PURCHASER. The proposal must reach the PURCHASER not later than one week before the envisaged dates. If none of these proposed acceptance dates is agreed to by the PURCHASER at least two days before such a date and the PURCHASER on his part proposes no other date within two weeks of receiving TKD`s proposal, acceptance is deemed declared.
§ 7 Reservation of ownership
- All goods and services are supplied subject to reservation of ownership. Delivered goods remain the property of TKD until the purchase price/charges and all other debts due to TKD from the PURCHASER under the ongoing business relationship have been paid in full.
- Where goods are further processed or sold by the PURCHASER, the processing/sale is done for TKD, which is thus the manufacturer for purposes of § 950 BGB and acquires ownership of the intermediate or end product. In the case of use with other goods not belonging to the PURCHASER, TKD acquires co-ownership of the new goods in the ratio of the value of the goods supplied by it to that of the third-party goods at the time of use.
- The PURCHASER is entitled at any time to resell revocably and relicense supplied goods as part of his normal business within the terms of the agreement made. The PURCHASER assigns to TKD here and now as security all accounts receivable due to him in connection with the resale and business relationship with his customers, along with accessory rights, at the value of the supplied goods. TKD is authorised to disclose the assignment of receivables to the PURCHASER´S customers at any time. On request the PURCHASER must inform TKD promptly of the customers` names and addresses.
- The PURCHASER is obliged to insure the contract goods at his own expense against loss through theft, breakage, fire, water and other risks while TKD is conditional owner of the contract goods and show TKD proof of insurance on request. The Purchaser assigns to TKD any claims which may arise against the insurer for theft, loss, damage etc. to the contract goods under reserved ownership. TKD accepts the assignment. TKD is entitled, in the event of an insurance claim, to disclose the assignment to the insurance company and to realise the sum insured there.
- The PURCHASER may neither pledge the contract goods nor assign them as security. In the event of attachment or seizure or other forms of disposal by a third party he must notify TKD promptly in writing. Should TKD incur a loss due to omitted or delayed notification (e.g. forfeiture of right), the PURCHASER is liable to pay compensation for this.
- Breach of contract by the PURCHASER, especially default in payment, entitles TKD to recover the goods after warning, the PURCHASER being obliged to surrender them.
- Assertion of reservation of ownership and attachment of contract goods by TKD do not constitute cancellation of the contract, unless the provisions governing consumer credit agreements (§§ 491 - 498 BGB) apply.
- TKD undertakes to release, at the PURCHASER´S request, the securities due to it to the extent that the security`s realisable value exceeds the secured debts by more than 20%. It is for TKD to select the securities to be released.
§ 8 Liability
- The PURCHASER´s right to demand compensation for negligence-related claims is confined to the cases of intent, gross negligence of TKD`s proprietors, executive bodies or senior staff, negligent breach of material contractual obligations (cardinal obligations), fraudulent concealment of defects, culpable injury to life, limb or health and defectiveness of a contract good for which there is liability under the Product Liability Act for personal injury or property damage to privately used objects.
- In the case of negligent infringement of major contractual obligations (cardinal obligations) the claim is limited to the amount of foreseeable loss in contracts of this type.
- Other compensation claims are precluded.
- Where compensation claims exist against TKD, its employees or vicarious agents, these expire by limitation within one year from delivery.
§ 9 Industrial property rights / Copyright / Secrecy etc.
- All rights to patents, utility and design patents, trademarks, packing designs and other industrial property rights together with copyright to the contract goods and services remain with the entitled persons. This also applies in particular to product designations, software and name and identification rights.
- The contracting parties undertake to treat as business secrets all commercial and technical details not in the public domain of which they acquire knowledge through the business relationship.
- Drawings, tools, software, dies, fixtures, models, templates, patterns and similar items supplied, used or made available by or for TKD are and remain the property of TKD. They may not be passed on to unauthorised third parties or otherwise made accessible. If the aforementioned items are manufactured for TKD, they become the property of TKD when made/manufactured. Reproduction of such items is permissible only within the scope of operational needs and the provisions of the laws governing patents, identifications, copyright and competition.
- Contract partners of the PURCHASER must be placed under a corresponding obligation.
- The PURCHASER may refer to the business relationship with TKD in advertising only with prior written permission.
§ 10 Conflict with rights of third parties
- 1. Should a claim be made on the PURCHASER for direct infringement of industrial property rights, including copyright, because of goods and/or services supplied by TKD, TKD will indemnify him for compensation claims against him which have been accepted or established by agreed settlement and for court and legal fees; this, however, only with the following provisos:
a) The PURCHASER informs TKD promptly of the claim or warning from third parties, without first taking any steps in defence and/or instructing a solicitor. Excepted from this are emergency measures which must be taken before TKD can be informed.
b) Only TKD is authorised to take defensive measures and instruct solicitors to implement the defensive measures and/or make statements and/or undertake other negotiations. At TKD´s request, the PURCHASER will, at TKD´s expense, engage a solicitor as legal representative.
c) The PURCHASER will inform TKD promptly and regularly on the matter and in particular provide the requisite details and documents.
- TKD`s liability ceases if the infringement of a third party´s rights results from a change in the contract goods/services or parts thereof, if the contract goods/services themselves give rise to no infringement of the law. Liability also ceases if the PURCHASER has made further use after warning by a third party or in the knowledge of a possible infringement of third-party rights, unless TKD has consented in writing to further use being made.
- Should it be established in law that further use of the contract goods will infringe third-party industrial property rights, including copyright, or in the PURCHASER`S view there is a danger of legal action over industrial property rights or copyright, TKD may, at its own expense and discretion, either obtain for the PURCHASER the right to further use of the contract goods, or replace the contract goods or modify them so that an infringement no longer exists or is at least less likely. In no circumstances do such measures entitle the PURCHASER to assert claims of any kind against TKD.
§ 11 Warranty
- TKD provides a warranty in the form of rectification or replacement, initially at its own discretion, for defects in the goods.
- If remediation fails, the PURCHASER may, at his discretion, demand a reduction in the remuneration or reversal (cancellation) of the contract. In the case of only minor infringements of contract, minor defects in particular, the PURCHASER has, however, no right of cancellation.
- The PURCHASER must notify TKD of self-evident defects in writing within 2 weeks of receiving the goods. The making of a warranty claim is otherwise precluded. The PURCHASER bears the full burden of proof for all prerequisites of claim, in particular for the actual defect, the time of the defect`s detection and the timeliness of the defect notice. Furthermore, the PURCHASER´S warranty rights are contingent on proper fulfilment of the requirements incumbent on him under § 377 HGB [German Commercial Code] to investigate and give notice of defects.
- If, after failed remediation, the PURCHASER opts to cancel the contract because of a defect of title or quality, he has no additional entitlement to compensation for the defect. If, after failed remediation, the PURCHASER opts for compensation, the goods remain with him if this is reasonable. The compensation is then limited to the difference between the purchase price and the value of the defective goods. This does not apply if TKD has fraudulently caused the contract infringement.
- The warranty period is one year from delivery/acceptance of the goods/services. Where the PURCHASER declines to receive or accept the goods/services, the warranty period is not more than 18 months, reckoned from the date of TKD`s dispatch-readiness notice but at most one year from the rectified delivery / acceptance of the goods/work.
- The nature of goods is deemed defined solely by the manufacturer`s specific product description forming the basis of the contract. Public statements, promotional claims or advertising by the manufacturer or third parties do not constitute an additional contractual description of the goods; character or quality. Stated details of the goods` diameters and weights are not binding; variations in them up to + / - 20% do not constitute a defect unless specific diameters or weights have been stipulated as contractually guaranteed. The same applies to length variations in delivered cables, for which a tolerance of + / - 10% is acceptable.
- If the PURCHASER receives defective assembly instructions, TKD is obliged only to supply defect-free assembly instructions, and this only if the defect in the assembly instructions impedes proper assembly. Where assembly problems arise due to defective assembly instructions, the PURCHASER must telephone TKD, which will assist him with advice during normal and known business hours.
- In the event of any changes or repairs made incorrectly without TKD`s consent by the PURCHASER or third parties instructed by him, liability for ensuing consequences is cancelled. In this case the warranty commitment ceases completely for TKD, unless the PURCHASER proves that the changes or repairs were not causally linked to the loss.
- The PURCHASER receives no warranties in the legal sense from TKD. Outside manufacturers warranties, if any, are unaffected.
- TKD warrants that goods to be exported or used outside Germany conform to the export and import restrictions set by the German Foreign Trade Act or US foreign trade law. This provision must be complied with by the PURCHASER himself.
§ 12 Place of performance and legal venue
The place of performance for the supply of goods and provision of services and the legal venue for all liabilities and/or disputes arising from the contractual relationship is Nettetal or - at TKD`s discretion - the location of a site responsible for supplying the goods/services. TKD is optionally also entitled to bring an action at the PURCHASER´S principal place of business or at the place of performance.
The laws of the Federal Republic of Germany apply, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The contract language is German.
§ 13 Written form
Collateral arrangements are effective only if agreed in writing. The written form is required for amendments and/or additions. This also applies to the waiving of the written form.
§ 14 Severability clause
- Should a provision in these Terms be or become void or should there be an omission therein, the validity of the remaining provisions is unaffected.
- A void provision is then deemed replaced by agreement with a valid one approximating most closely to the parties` intention; the same applies in the case of an omission.
- In case of doubt the German original shall prevail!
Purchasing Terms of TKD KABEL GmbH (hereinafter referred to as TKD)
Section 1 Applicability of the Purchasing Terms
- The following Purchasing Terms apply to all legal relations between TKD and its suppliers in so far as the Supplier is an entrepreneur, a legal person of public law or a special fund under public law. These Purchasing Terms shall apply exclusively. Any divergent provisions of the Supplier, in particular terms of sale, supply and payment, apply only if confirmed by TKD in writing.
- By carrying out a first delivery on the basis of these Purchasing Terms, the Supplier acknowledges that these Terms shall also apply in the version applicable at the time to all further contractual relationships which focus on the sale or the delivery of movable items or the provision of work performance. The currently valid version of the Purchasing Terms shall be provided in the Internet (https://www.tkd-kabel.de/purchasingterms) to be downloaded and printed out.
- Any individual agreements with the Supplier (e.g. skeleton agreements, disposition agreements or supply contracts) shall take precedence over these Purchasing Terms. They shall be supplemented by these Purchasing Terms if no more specific provisions are made in them. For any contractual amendments, supplements or oral ancillary agreements a written agreement or written confirmation from TKD is of decisive importance.
Section 2 Formation of contract
- TKD places purchase orders by telephone, in writing by fax or email. Only the contents of the purchase order count. The Supplier must acknowledge the order in writing within 7 days of the order date. After this period TKD shall be entitled to cancel its order(s). Any claims by the Supplier in respect of a validly executed cancellation shall be excluded.
- TKD shall be entitled, even after conclusion of a contract, to request changes in the items to be supplied if the differences can be reasonably expected of the Supplier or if TKD undertakes to reimburse the Supplier for any extra costs incurred from the changes to the goods for delivery.
- The Supplier may place subcontracts only with TKD’s consent. The supplier shall bear the procurement risk if no other agreement has been made.
Section 3 Prices, payment
- Agreed prices are fixed prices and include all costs for packaging (cable drums, cardboard boxes, outer packaging, protective sleeves etc.), transport to the specified reception/usage point, customs formalities and duties and, in case of doubt, any applicable VAT. Where no prices are specified in the order, the prices asked by the Supplier must first be made known to TKD for approval.
- Invoices must be sent in duplicate after delivery showing all the relevant details including the rate and amount of VAT charged.
- After receipt of the goods and invoice, TKD shall pay within 14 days with 3% cash discount, within 30 days with 2% cash discount, calculated on the gross invoice amount, or within 60 days without discount.
- If early deliveries are accepted, the due date for payment is based on the originally agreed delivery date.
- Incomplete or defective delivery shall entitle TKD to withhold payment in full or in proportion to the value of the affected goods pending due fulfilment. The Supplier shall have retention and offsetting rights against claims of TKD only in accounts receivable which have been recognised by TKD or established in law and/or are already ripe for decision.
Section 4 Delivery dates and periods, due diligence
- The agreed delivery dates and periods shall be binding. This and also the following provisions in Section 4 also apply to notifications (of the exact time of delivery) given by the Supplier. Compliance means arrival of goods at TKD or at to the stipulated place of performance - to be determined in case of doubt by TKD.
- The Supplier is obliged to inform TKD promptly in writing if circumstances arise or become discernible to the Supplier resulting in agreed delivery dates being impossible to meet.
- If the Supplier does not comply with delivery dates and periods for reasons within its sphere of risk, TKD shall be entitled to rescind the contract and/or claim compensation without further notice of default and deadline extension.
- If delivery dates and periods are not complied with by the Supplier for reasons demonstrably not in its responsibility, the parties undertake to adapt the contract in good faith to the altered circumstances. TKD shall nevertheless be released from obligation to accept the ordered delivery and shall be entitled to rescind the contract if the lapse of time has rendered the goods supplied no longer economically usable by TKD.
- Delivery by instalments shall only be permissible if expressly agreed to in writing.
- No reservation of ownership has been agreed.
- Items passed to the Supplier by TKD for processing and other order-handling operations (cables, components, packaging, raw materials etc.) shall remain the property of TKD. If, in the course of order processing, they are combined or mixed with other items owned by third parties, TKD shall acquire co-ownership of the new products created, in the ratio of the value of the TKD-supplied components to that of the other components used or combined. The Supplier undertakes to treat TKD’s property with care and to insure it against loss and damage. TKD’s property shall be provided solely for execution of the contract. The Supplier shall have no right to resell, pledge, hire out, lend or make any other disposal to the disadvantage of TKD.
Section 5 Passing of risks / Packaging / Insurance
- Delivery shall be made free house at the Supplier’s risk up to the time of completed delivery at the contractually stipulated point of reception or use. In case of doubt these are the loading bridges set up for TKD’s incoming goods or the gate at the Pliezhausen site. TKD shall be entitled, even after conclusion of contract, to tell the Supplier a different point of reception or use, provided that no disadvantage (additional costs etc.) is incurred by the Supplier or TKD undertakes to compensate the Supplier for this disadvantage. If TKD arranges delivery, transport shall nevertheless still be at the Supplier’s risk.
- The Supplier must package the goods for delivery in environment-friendly packaging only, so as to prevent transport damage. Furthermore, the packing instructions for delivery to TKD must be adhered to by the Supplier. Additionally, the provisions of the Packaging Directive shall apply. Otherwise TKD may reject the delivered goods or have them repacked in line with the contract at the Supplier’s expense.
- Cables may be supplied on loaned drums only if TKD has agreed to this in writing.
- The Supplier shall insure the goods for delivery, at its own cost, against loss and damage during transportation and provide TKD proof of said insurance on request.
Section 6 Defect notices
- a) TKD shall inspect the delivered goods within a week of their arrival. If the supplied products’ functioning and freedom from defects cannot be established with reasonable cost and effort before fitting, initial operation, further processing and/or acceptance of the finished product, inspection may also take place later in connection with one of these operations.
b) If a special quality assurance agreement has been concluded between the Supplier and TKD, obligatory inspection shall be limited to transport damage, identity and quantity checking and - if reasonable - testing of correct operation. The same shall apply if the Supplier is certified to ISO 9000 ff., it has used this certification in its advertising and it has not made it clear to TKD in writing within a week after conclusion of contract that this meaning should not be attached to certification.
- Notice of defects found must be given within two weeks.
- The Supplier shall waive the defence of delayed inspections / checks and / or defect notification if TKD has complied with its obligations under subsections 1-2 above.
Section 7 Warranty / Guarantee
- The Supplier warrants that all delivered goods / services are in line with state-of-the-art engineering, the relevant national, European and international legal provisions and the regulations and codes of practice of public authorities, accident prevention & insurance institutions and trade associations. The Supplier further guarantees that the supplied products and packaging materials are environment-friendly. If the products supplied do not correspond with the warranty provided, the Supplier shall be liable for all damage caused as a result including consequential damage. TKD shall be entitled to require the Supplier to submit without charge certificates of inspection relating to the supplied goods.
a) Additionally, unless any conflicting provisions are listed below, the Supplier shall be liable for material defects and defects of title, including incorrect and insufficient delivery, incorrect assembly, faulty assembly, operating or user manuals, and shall be liable for any other infringement of duty according to the statutory provisions.
b) The Supplier shall be liable in the scope of the warranty for the agreed condition on the passage of risk. Product descriptions from TKD or those of the manufacturer/Supplier shall be deemed as agreements concerning the condition.
c) Section 442 para. 1 (2) German Civil Code shall be waived so that the rights arising from product defects shall continue to exist even if TKD was unaware of the fault on conclusion of the contract due to gross negligence.
d) The warranty period shall be 5 years for supplied items which have been put to their normal use to build a structure with the proviso that the limitation period starts with the time of the delivery of the item. Furthermore, the warranty period shall be 3 years after ascertaining the defect by TKD, at the longest however 4 years from passing of risk / from the acceptance date in the case of work performed by the Supplier.
e) Where supplied goods are incorporated in TKD products unaltered, the warranty period shall begin on the date on which the products are put into service by the end user. It shall end at the latest, however, five years after the goods’ delivery to TKD / after acceptance of the work by TKD in the case of work services.
- f) Recourse rights which TKD may have against the Supplier shall remain unaffected herefrom where warranty claims are made by a consumer against its contract partner for repurchase of the goods or reduction of the purchase price. In this case the special provisions governing the purchase of consumables set out in sections 478, 479 BGB [German Civil Code] shall apply. From 01/01/2018 the recourse right shall apply in accordance with sections 445a, 445b BGB n.F, even if a trader is at the end of the delivery chain.
- If, during the warranty period, material defects come to light in supplied goods, the Supplier must provide remedy, i.e. at TKD’s discretion, by either repairing them or replacing them with defect-free goods. Claims by TKD for compensation/reimbursement for fruitless expenditure shall not be affected hereby. All costs necessarily incurred for remediation, replacement or repair such as labour, material, assembling and dismantling, disposal, transport costs / essential recalls / litigation costs etc.) shall be borne by the Supplier.
- If TKD’s remediation claim is not satisfied within set time limits, remediation shall be deemed to have failed and TKD shall be entitled, at the Supplier’s expense and risk, to rectify the defect(s) itself or have it done by third parties, without the Supplier’s liability for material defects being otherwise affected.
- From 01/01/2018 onwards, regarding the content of the recourse right, the provisions in sections 445a and 445b BGB shall apply as amended. For the remediation claim of TKD from 01/0/2018 the provisions of sections 440, 475 para. 4 and 5 BGB as amended shall also apply.
Section 8 Product liability
- The Supplier undertakes to indemnify TKD for damage incurred by it because of a defect in the supplied goods. If a claim is made against TKD under the provisions of national or international product liability regulations because of defectiveness in the product deriving from faults in goods supplied by the Supplier, the Supplier undertakes to indemnify TKD against all claims attributable to a defect in the supplied parts. The Supplier’s liability to pay compensation shall cover both compensation payments to third parties and expenditure on legal defence, recall, assembling and dismantling, disposal and TKD’s administration and other expenses for processing the claim.
- The Supplier undertakes to take out product liability insurance at its own cost which includes cover - if and to the extent coverable - of the recall risk, and to show TKD evidence of this on request. The cover provided by the product liability policy must extend world-wide and accord in scope and duration with the applicable maximum limits of liability under the German Product Liability Act.
Section 9 Non-disclosure / Models / Tools / Data protection
- The Supplier undertakes not to disclose any information about the conclusion of the contract.
- All commercial and technical details and operational procedures which have come to its knowledge through the business relationship with TKD shall be treated as business secrets, unless they have entered the public domain. The Supplier must contractually impose the same non-disclosure duty, which shall remain in effect after the contract has ended until a maximum of 5 years since the business secret became known, on its own personnel, subcontractors and other agents.
- Items such as tools, dies, fixtures, models, matrices, templates, patterns and other manufacturing aids in particular, which TKD has made available to the Supplier shall remain the property of TKD. If the forenamed items are manufactured for TKD, they shall become TKD’s property when produced/made, the Supplier acting as bailor. The same shall apply to designs, mixtures, drawings, analytical techniques and disclosed processes. The above items, data and processes may be passed or otherwise disclosed to third parties only with TKD’s prior written agreement. Such agreement shall depend on information being provided regarding the intended purpose and recipient.
- The Supplier undertakes to use the tools belonging to TKD solely for making goods ordered by TKD and must insure them at its own expense against loss through fire, water or theft. The Supplier must perform necessary maintenance and inspection work on the tools at its own expense.
- The Supplier is aware that its personal data is stored by TKD on data media.
Section 10 Property rights
- The Supplier shall be held liable for damage resulting from infringement of property rights and/or property right applications during use of the supplied goods pursuant to the contract.
- If a claim is asserted against TKD or its customers by third parties, it will, on request, indemnify them against all claims arising from exploitation of such property rights. The Supplier’s obligation to indemnify relates to all costs incurred by TKD or its customers from or in connection with the third-party claim. These shall include in particular the costs of legal defence and exercising of rights together with all costs of providing necessary replacements.
- The Supplier shall not be obliged to indemnify if the supplied goods were manufactured in ignorance of third-party property rights according to designs, mixtures, drawings, models or other equivalent specifications or information given by TKD. This shall not apply in the case of grossly negligent ignorance on the Supplier’s part. Where under subsection 3, the Supplier is not liable, TKD will indemnify it against third-party claims.
- The Supplier shall give written notice of using published, its own unpublished or licensed third-party property rights / property right applications not later than before contract negotiations are concluded. The Supplier shall not be entitled to claim additional remuneration for the exploitation of its own or third-party property rights / property right applications entailed in using the supplied parts.
- The limitation period for the claims against the Supplier referred to in Section 10 is 10 years, calculated from conclusion of contract.
- If the Supplier and TKD due to joint development work (e.g. in the course of joint special designs) attain results which can be asserted successfully as an object of property right applications, before the submission of property right applications, the parties shall confer about who shall be named as applicant and inventor in the field of technical property rights. The Supplier shall on no account independently register its own property rights excluding TKD. Irrespective of the above, TKD in any case shall be entitled to a territorially and temporally unlimited free right of co-use also after the end of the supply contract.
Section 11 Safety requirements
- For the goods it supplies, the Supplier must observe the generally accepted rules of engineering, safety regulations and technical data / limit values reflecting the current state of the art or the more demanding ones stipulated. Also to be complied with in particular are the following standards, regulations and decrees: DIN, EN, ISO, the German Food and Commodities Act (LMBG), the German Association of Electrical Engineers (VDE), Reach, RoHs (2011/65 EU), EC Directives (e.g. EC Machinery Directive) and other relevant codes of practice.
- The Supplier undertakes to use only materials conforming to the applicable statutory safety requirements and regulations, in particular for restricted, toxic and dangerous substances. The same shall apply to environmental protection provisions and regulations relating to electricity and electromagnetic fields. The obligation shall cover all regulations applicable world-wide.
- If the Supplier’s products do not meet the requirements cited in subsections 1 to 2, TKD shall be entitled to rescind the contract. Further-reaching claims for damages shall remain unaffected.
- TKD must be notified of proposed changes to the goods for supply. They require TKD’s written approval.
Section 12 Quality and documentation
- Included without additional charge in the goods to be supplied are sets of product-specific and/or technical documentation, the declaration of conformity and any other documents and certificates needed for the ordered goods or their use (e.g. assembly and operating instructions, product and safety information), together with necessary marking of parts (trademarks, manufacturer’s marks, order references, article no., batch no. etc.) and/or their packaging. The Supplier additionally must specify the unit weights and dimensions of the parts to be delivered in the order confirmation.
- The costs for declarations of conformity shall be borne by the Supplier. The declarations of conformity as well as the documents specified in section 12 (1) must, on request from TKD, be submitted without delay in German.
- Regardless of this, the Supplier must constantly verify the quality of the goods being supplied. It must notify TKD promptly of possible improvements. This shall apply in particular to safety-relevant components. The Supplier must verify the manufacturability of the design and perform a plausibility check. It must inform TKD promptly about any discernible errors in the specified parameters and about foreseeable complications.
- a) If minimum and/or maximum parameter values have been specified at the time of ordering, the stated maximum values may not be exceeded in any part of the workpiece or product, and the stated minimum values may in no case be undershot at any point. Unless separate arrangements have been agreed about them, underlengths and overlengths of max. 5% are acceptable specifically in cables supplied. This shall not, however, apply to coils, for which lengths precisely cut to size are ordered.
b) This must be ensured by suitable testing and measuring procedures and documented.
c) TKD may, at any time, require to be given the results of this testing in writing at no additional cost.
- If the nature and scope of testing and the testing equipment and methods have not been firmly agreed between the Supplier and TKD, at the Supplier’s request TKD shall be willing within the limits of its knowledge, experience and facilities to discuss the tests with it to ascertain the standard of testing required in particular cases. Regardless of this, testing must at least accord with current best engineering practice in nature and scope.
- The Supplier must subject safety-relevant parts to testing, which must be documented. It must note in special records when, in what way and by whom the supplied goods were tested for these properties. This shall also apply to the test results. Safety-relevant parts identified as such in the product-specific/technical documents or on the basis of separate agreements or whose safety relevance is self-evident must be tested. The test records must be kept for 10 years and shown to TKD on request without charge. The Supplier must, within the limits of what is legally possible, subject its own suppliers to an equivalent obligation by written contract.
- Where, to verify specific requirements, public authorities with responsibility for production safety, production marking, exhaust-gas provisions etc. require to inspect the production process and TKD’s test records, the Supplier assures TKD of its willingness to grant TKD the same rights in its plant and to give all reasonable assistance.
Section 13 Audit
- TKD shall be entitled to carry out an audit of the Supplier itself or, at its discretion, to have it carried out by an expert. This audit shall entail an inspection of the Supplier’s plant and of its quality assurance and environment systems, followed by an appraisal. The findings obtained in the audit are made the basis for future placement of orders and for internal rating of the plant by TKD.
- a) TKD shall be entitled to perform, with advance notice, inspections of the Supplier’s ongoing business operations to monitor quality assurance measures.
b) Where there have been quality problems in the past, TKD shall also be entitled to perform unannounced inspections to monitor quality assurance measures. TKD shall not have this right if the most recent complaint against the Supplier’s quality assurance measures was more than a year ago or no defects were found in two consecutive unannounced inspections.
c) TKD has, where it can demonstrate a reasonable warranted interest, a right to inspect the subcontractor’s records. Such warranted interest exists in particular when knowledge may be obtained by this means which enables the need for and scale of a recall to be gauged.
Section 14 General provisions
- If the Supplier suspends its payments or if insolvency proceedings against its assets, a court-supervised or out-of-court settlement are/is applied for, TKD shall be entitled to rescind the unfulfilled part of the contract.
a) If individual clauses are void, validity of the others shall remain unaffected.
b) Void provisions shall be replaced by the statutory provisions. The same applies to omissions.
- a) The laws of the Federal Republic of Germany apply.
b) The language for contracting, proceedings and the courts is German.
- Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is precluded.
- The place of performance for delivery and contract services and the legal venue for all liabilities and/or disputes arising from the contractual relationship is Nettetal or - at TKD’s discretion - the location of a site of TKD responsible for delivery / contract service. TKD is optionally also entitled to bring an action at the Supplier’s principal place of business or at the place of performance of services.