General Terms and Conditions of Purchase

1. Scope, form

(1) The present General Terms and Conditions of Purchase (“GTCP”) are applicable to all business relationships with our business partners and suppliers (“Seller”). The GTCP apply only if the Seller is an entrepreneur (s. 14 of the German Civil Code (BGB)), a legal person under public law or a special fund under public law.
(2) The GTCP especially apply to contracts on the sale and/or delivery of movable items (“Goods”), regardless of whether the Seller produces the Goods himself or purchases them from suppliers (s. 433, s. 651 BGB). Unless otherwise agreed, the GTCP valid at the time of ordering by the buyer, or in any case in the version communicated to him most recently in text form, apply as a framework agreement for future contracts of the same kind, without us having to refer to the GTCP again in each and every case.
(3) The present GTCP apply exclusively. Differing, contradictory or supplementary General Terms and Conditions of the Seller are a part of the contract only when and to the extent that we have expressly consented in writing to their applicability. This requirement of consent applies in any case, for example even if we unconditionally accept the deliveries in knowledge of the General Terms and Conditions of the Seller.
(4) Individual agreements with the Seller made in isolated cases (including collateral agreements, additions and changes) always have precedence over the present GTCP. For the content of such agreements, subject to counter evidence, a contract in writing or our confirmation in writing is decisive.
(5) Legally relevant declarations and notifications of the Seller in relation to the contract (e.g. deadline setting, reminder, rescission) should be submitted in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory provisions on form and other proof, especially in the event of doubts about the legitimation of the declaring party, remain unaffected.
(6) References to the applicability of statutory provisions have only clarifying significance. The statutory provisions therefore apply even without such clarification, provided they are not directly amended or expressly excluded in the present GTCP.

2. Conclusion of contract

(1) Our order is binding, commencing at the earliest from the written declaration or confirmation. The Seller should notify us about apparent errors (e.g. spelling or calculation mistakes) and incompleteness of the order, including of the order documents, for the purposes of correction and completion prior to acceptance; otherwise, the contract is not concluded.
(2) The Seller is obliged to confirm our order in writing or to unconditionally execute the order, in particular by shipping the Goods (acceptance), within two weeks.
A delayed acceptance is deemed a new offer and requires our acceptance.

3. Deadline for delivery and delay in delivery

(1) The deadline for delivery indicated by us in the order is binding. If the delivery deadline is not indicated in the order and has not been agreed otherwise, it is two (2) weeks from the conclusion of the contract. The Seller is obliged to notify us immediately if the agreed deadline for delivery – for whatever reason – is expected not to be met.
(2) If the Seller does not provide his service or does not provide his service within the agreed deadline for delivery, or if he is delayed, our rights – in particular to rescind and claim damages – are determined according to the statutory provisions. The provisions in para. 3 remain unaffected.
(3) If the Seller is delayed in delivery, we may – in addition to further statutory claims - demand a lump-sum compensation of the damages due to delay of 1% of the net price per each full calendar week of delay, but no more than 5% of the net price of the Goods supplied with delay. We reserve the right to prove greater damages. The Seller retains the right to prove that there was no damage at all or significantly lower damage.

4. Service, delivery, transfer of risk, default of acceptance

(1) The Seller does not have the right, without previous written consent from us, to have third parties (e.g. subcontractors) provide the services that the Seller owes us. The Seller shall bear the procurement risk for his services, unless otherwise agreed in individual cases (e.g. limitation to stock).
(2) The delivery within Germany is free for the recipient and is sent to the destination indicated in the order. If the destination is not indicated and no other agreements have been made, the delivery should be made to our place of business in Stolberg/Rhineland. The respective destination is also the place of fulfilment of the delivery and of any supplementary performance (obligation to discharge duties at creditor’s domicile).
(3) The delivery is to be accompanied by a delivery note with date (issue and shipment), contents of the delivery (item numbers and number of items), and order identifier (date and number). If there is no delivery note or if it is incomplete, we may not be held responsible for any resulting delay in the processing and payment. A respective dispatch note with the same contents is also to be sent, separately from the delivery note.
(4) The risk of accidental loss and accidental deterioration of the item passes to us when it is handed over to us at the place of fulfilment. Insofar as an approval procedure is agreed, it is authoritative for the transfer of risk. The statutory provisions of the law on work contracts also apply analogously in other respects in cases of approval. If we are in default of the acceptance, the handover or approval is deemed as given.
(5) For the onset of our acceptance default, the statutory provisions apply. However, the Seller must also offer us his service expressly if a specified or ascertainable calendar period is agreed for action or cooperation on our part (e.g. provision of material). If we are in default of the acceptance, pursuant to the statutory provisions the Seller may demand reimbursement of his extra expenses (s. 304 BGB). In a contract for the manufacture of a non-substitutable item by the Seller (custom-made products), the Seller has further rights only if we have committed to cooperation and are responsible for the lack of cooperation.

5. Prices and Terms of Payment

(1) The price indicated in the order is binding. All prices include statutory value-added tax, unless value-added tax is indicated separately.
(2) Unless otherwise agreed, the price includes all services and supplementary services of the Seller (e.g. installation, integration), as well as additional costs (e.g. proper packaging, transport costs including any potential transport- and civil liability insurance).
(3) The agreed price is due within 30 calendar days following complete delivery and service (including, where applicable, agreed approval) as well as receipt of a proper invoice for the payment. If we pay within 14 calendar days, the Seller grants us a 3% discount on the net amount of the invoice. For bank transfers, the payment is considered made in a timely manner if our transfer order is received by the bank before the payment deadline expires; we are not responsible for delays on the part of the banks involved in the payment process.
(4) We do not owe any interest payable after the due date. For late payment, the statutory provisions apply.
(5) We have recourse to the right of set-off and the right of retention as well as the defence of unperformed contract in the statutory scope. In particular, we have the right to retain due payment as long as we still have claims against the Seller resulting from incomplete or defective services.
(6) The Seller has a right of set-off or a right of retention only as a result of legally established or undisputed counterclaims.

6. Confidentiality and Retention of Title

(1) We retain ownership and copyright to figures, plans, drawings, calculations, installation instructions, product descriptions and other documents. Such documents are to be used exclusively for the contractual service and are to be returned to us after the contract is performed. Vis-à-vis third parties the documents are to be kept confidential, even after the end of the contract term. The obligation of confidentiality expires only if and insofar as the knowledge contained in the documents has become generally known.
(2) The aforementioned provision applies analogously to substances and materials (e.g. software, finished and semi-finished products) as well as tools, templates, designs and other items which we provide to the Seller for the manufacturing. Such items are – provided that they are not being processed – to be stored separately at the Seller’s expense and are to be insured at a reasonable scope against destruction and loss.
(3) Processing, mixing or combining (further processing) of items provided is carried out by the Seller for us. The same applies to further processing of the supplied Goods carried out by us, so that we are considered the manufacturer and gain ownership of the product in accordance with the statutory provisions, commencing at the latest with the further processing.
(4) The transfer of the Goods to us is unconditional and without taking into account the payment of the price. If, however, we accept, on an individual basis, an offer from the Seller with transfer being conditional on payment of the purchase price, the Seller’s retention of title expires at the latest with the payment of the purchase price for the supplied Goods. In the ordinary course of business, we remain authorised, prior to the payment of the purchase price, to resell the Goods with advance assignment of the claim resulting hereof (alternatively, applicability of the simple retention of title, extended to the resale). In any case, this excludes all other forms of retention of title, in particular the extended retention of title, the assigned retention of title, and the retention of title extended to the resale.

7. Defective delivery

(1) The legal provisions apply to our rights in cases of material and legal defects (including incorrect and short deliveries as well as improper installation or deficient installation and operating instructions) and other breaches of obligations by the Seller, unless otherwise specified hereafter.
(2) Pursuant to the statutory provisions, the Seller is liable in particular for the Goods having the agreed quality at the time of transfer of risk. For the agreement about the quality, the product descriptions that – in particular on the basis of designation or reference in our order – are subject of the respective contract or are included in the contract in the same manner as these GTCP, apply. It does not make any difference whether the product description originates from us, from the Seller or from the manufacturer.
(3) By way of derogation from s. 442(1)(2) BGB, we have recourse to claims from defects without restriction, including where the defect has remained unknown to us at the time of the conclusion of the contract due to gross negligence.
(4) For the commercial obligation to inspect and notify (s. 377, s. 381 of the German Commercial Code (HGB)), the statutory provisions apply, subject to the following condition: our obligation to inspect is limited to defects which are evident during our incoming goods inspection by way of an external examination, including of the delivery papers (e.g. transport damage, incorrect or short delivery), or are identifiable during our quality control in sample checks. Insofar as an approval procedure is agreed, there is no obligation to inspect. Moreover, it is dependent on the extent to which an inspection is feasible, taking into consideration the circumstances of the individual case in accordance with the ordinary course of business. Our obligation to notify for defects discovered later remains unaffected.Without prejudice to our obligation to inspect, our complaint (notification of defects) is considered immediate and in a timely manner if it is sent within five (5) working days from discovery and, in the case of apparent defects, from delivery.
(5) Supplementary performance also includes the dismantling of the defective Goods and reintegration, provided the Goods have been integrated according to their type and purpose in another thing or attached to another item. Our statutory claim to compensation for corresponding expenditures remains unaffected. The expenditures necessary for the purposes of examination and supplementary performance are borne by the Seller, including in cases where it emerges that there was no defect. Our liability for damages in cases of unjustified requests for the rectification of defects remains unaffected; we are only liable, however, insofar as we had recognised that there was no defect, or in a grossly negligent manner had not recognised that there was no defect.
(6) Without prejudice to our statutory rights and the provisions in para. 5, the following applies: If the Seller does not fulfil his obligation for supplementary performance – at our discretion, by remedying the defect (rectification) or by delivering an item that is free of any defects (replacement delivery) – within a reasonable period determined by us, we may remedy the defect ourselves and request compensation of the expenditure required or a corresponding advance payment from the Seller. If the supplementary performance by the Seller has failed or is unacceptable to us (e.g. due to particular urgency, operational safety hazards or any disproportionate loss being imminent), no deadline is required; we shall notify the Seller immediately, where possible in advance, about such circumstances.
(7) Moreover, pursuant to the statutory provisions, we have the right, in case of material or legal damage, to reduce the purchase price or to rescind the contract. In addition, pursuant to the statutory provisions, we have a right to compensation for damages and expenditure.

8. Recourse against suppliers

(1) In addition to the claims arising from defects, we have available to us, without restriction, claims of redress within a supply chain provided by statute (recourse against suppliers pursuant to s. 445a, s. 445b, s. 478 BGB). In particular, we have the right to demand from the Seller the specific type of supplementary performance (rectification or replacement delivery) that we owe to our customers in each individual case. This does not restrict our statutory right to choose (s. 439(1) BGB).
(2) Before we acknowledge or make good a defect claim made by a customer (including expenditure compensation pursuant to s. 445a(1), s. 439(2) and s. 439(3) BGB), we shall notify the Seller and provide him with a short statement of the facts and ask him for a written comment. If there is no substantiated comment within a reasonable period and if no consensual solution is reached, the defect claim effectively granted by us is considered owed to our customer. In that case, it is the responsibility of the Seller to provide proof to the contrary.
(3) Our claims from recourse against suppliers also apply where the defective Goods have been further processed by us or by another entrepreneur, e.g. by integration in another product.

9. Liability of manufacturers

(1) If the Seller is responsible for damage to a product, he shall indemnify us against claims from third parties insofar as the cause originates in his sphere of control and organisation and that he himself is also liable vis-à-vis third parties.
(2) In the context of his obligation to indemnify, the Seller shall reimburse expenditures pursuant to s. 683, s. 670 BGB resulting from or in connection with third-party claims, including product recalls carried out by us. We shall inform the Seller about the contents and scope of the recall actions – insofar as possible and reasonable – and provide him with an opportunity to comment. Further statutory claims remain unaffected.
(3) The Seller shall take out and maintain product liability insurance with a lump sum coverage amount of a minimum of 10 million euros per personal injury/damage to property.

10. Limitation

(1) The reciprocal claims of the contracting parties become statute-barred in accordance with the statutory provisions, provided there are no provisions to the contrary hereafter.
(2) By way of derogation from s. 438(1)(3) BGB, the general limitation period for claims from defects is three (3) years from the transfer of risk. Insofar as an approval procedure is agreed, the limitation period commences with the approval. The three-year limitation period applies analogously to claims arising from legal defects, whereby the statutory limitation period for material surrender claims of third parties remains unaffected (s. 438(1)(1) BGB); moreover, claims arising from legal defects expire under no circumstances, provided the third party can still – in particular in the absence of limitation – exercise its right against us.
(3) The limitation periods of the commercial law, including the above-mentioned extension, apply – in the statutory scope – to all contractual claims from defects. Insofar as we also have non-contractual claims for damages due to a defect, the standard statutory limitation period applies (s. 195, s. 199 BGB), unless applying the limitation periods of the commercial law does not result in a longer limitation period in the individual case.

11. Applicable law and place of jurisdiction

(1) The law of the Federal Republic of Germany, excluding the uniform international law, in particular UN CISG, applies to the present GTCP and the contractual relationship between us and the Seller.
(2) If the Seller is a merchant within the meaning of the German Commercial Code (HGB), a legal person under public law or a special fund under public law, the exclusive – also internationally – place of jurisdiction for all disputes arising from the contractual relationship is our place of business in Stolberg/Rhineland. The same applies if the Seller is an entrepreneur within the meaning of s. 14 BGB. We are also authorised in all cases, however, to bring an action at the place of fulfilment of the delivery obligation pursuant to the present GTCP or an overriding individual agreement, or at the general place of jurisdiction of the Seller. Overriding statutory provisions, in particular regarding exclusive competencies, remain unaffected.

12. Privacy statement regarding the processing/collection of suppliers’ personal data

(1) Information regarding the collection of suppliers’ personal data.

a) Hereafter, we provide information about the collection of suppliers’ personal data. Personal data is all information that can be related to your person, e.g. name, address, e-mail address, etc.

b) Pursuant to Art. 4(7) of the EU General Data Protection Regulation (GDPR), the controller is

Weforma Dämpfungstechnik GmbH,
legally represented by the managing directors
Armin Schmidt and Thomas Schmidt
Werther Straße 44 in 52224 Stolberg
Tel.: +49-(0)2402 - 9892-0
Fax: +49-(0)2402 - 9892-20
info@weforma.com
www.weforma.com
Amtsgericht (Local Court): Aachen HRB 11532

You can contact our data protection officer under
our postal address with the addition of “Data protection officer”.

c) For the purposes of fulfilling the contract or executing pre-contractual measures at your request, we process/collect in particular the following personal data disclosed to us by you and/or which has become known to us:

– Your name and your company name, including the name of the natural persons acting on your behalf

– Your contact details, i.e. your business address and, where applicable, your telephone numbers, fax numbers and e-mail addresses

– Your bank details

– All data regarding your delivery history and complaints management necessary for the execution/fulfilment of the contract.

d) The legal basis for the processing of personal data is Art. 6(1)(1)(b) GDPR.

e) Categories of recipients of personal data are

aa) The controller, i.e. Weforma Dämpfungstechnik GmbH

bb) Processors, e.g. external service providers, such as the tax consultant appointed by us and responsible for the financial accounting

cc) Persons authorised to process personal data and who are directly under the authority of the controller (i.e. Weforma Dämpfungstechnik GmbH) or of a processor (e.g. staff in our purchasing department)

dd) Where applicable, subcontractors and/or payment service providers

ee) Where applicable, public bodies and authorities

(2) Duration of the storage of personal data

We shall limit the storage period of your personal data to the minimum mandatory time. For this purpose, we have introduced an erasure concept which provides time limits for the regular review and erasure of your personal data in order to ensure that your personal data is stored no longer than necessary. According to that concept, the following time limits are decisive:

– Data records/documents relevant to the execution of the contractual relationship:

Maximum storage up to the legal term of the contractual relationship + a safety margin of three years (up to the expiry of the standard three-year limitation period pursuant to s. 195, s. 199 of the German Civil Code (BGB))

– Data records/documents, which could be relevant to the annual accounts of our company, e.g. financial accounting documents:

Maximum storage of up to ten years, s. 257(1)(1) and s. 257(4) of the German Commercial Code (HGB), s. 147 of the German Fiscal Code (AO)

– Date records/documents which could be relevant for tax purposes, e.g. staff e-mails that serve as commercial letters:

 Maximum storage of up to six years, s. 147(3)(1) of the German Fiscal Code (AO)

– Data records/documents for which there is no storage period, e.g. documents regarding your delivery history or your complaints management:

Maximum storage up to the expiry of the standard three-year limitation period pursuant to s. 195, s. 199 of the German Civil Code + a safety margin of three months, unless the data records/documents are needed beyond that time period for the execution of the contractual relationship.

(3) Your rights

    a) Your have the following rights vis-à-vis us regarding personal data concerning you:

– Right to access (Art. 15 GDPR, s. 34 Federal Data Protection Act (BDSG)),

– Right to rectification and erasure (Art. 16 and Art. 17 GDPR, s. 35 Federal Data Protection Act (BDSG)),

– Right to restriction of the processing (Art. 18 GDPR),

– Right to object to the processing (Art. 21 GDPR, s. 36 Federal Data Protection Act (BDSG)),

– Right to data portability.

    b) In addition, you have the right to complain to a data protection supervisory authority regarding the processing of your personal data in our company.

(4) You are obliged under statute and/or contract to make available your personal data that is processed by us for the purposes of the execution/fulfilment of the contractual relationship. A possible consequence of not providing the data would be that the contract relationship is not established.