Allgemeine Einkaufsbedingungen

GPC

General Purchasing Conditions (GPC) of the METZLER : VATER group GmbH

Preamble
Contract Formation/Scope of Services
Delivery, Delivery Period and Delayed Delivery
Acceptance/Defects/Supplier Recourse
Termination of Contract
Payment Conditions
Non-Disclosure
Rights of Exploitation and Use
Customer Protection Clause
Statute of Limitations
Minimum Wage/Tax/Data Protection
Closing Provisions

1. Preamble

These general purchasing conditions govern the business relationships between the above-named GmbH (Principal) and its business partners and suppliers (Contract Partners).

The GPCs also apply to contracts concerning the acquisition and/or delivery of transportable materials ("Goods"), with no consideration paid to whether the Contract Partner has personally manufactured the Goods or purchases them from suppliers (§§ 433, 651 German Civil Code, BGB).

They apply only when the Contract Partner is an entrepreneur (§ 14 BGB), a legal person under public law, or a special asset under public law.

Any differing regulations in the general terms and conditions of business of the Contract Partner are explicitly rejected. Individual agreements and framework contracts have priority over these GPCs at all events.

2. Contract Formation/Scope of Service

The contract based on the previously negotiated performance specifications (Offer) comes into existence upon ordering by the Principal (Acceptance). The minimal requirement for the Acceptance is the written form. The Contract Partner undertakes to document the contract formation by means of an order confirmation and to execute the order as agreed. Moreover, the Contract Partner undertakes to perform the totality of not explicitly mentioned services which are necessary for the proper fulfilment of the agreed services in line with the due quality standard. These include, in particular: Observance of the generally recognised rules of the art of construction and of construction technology as well as of trade fair, exhibition and stage construction and of event technology, along with all relevant statutory and regulatory provisions. The Contract Partner undertakes to acquire, obtain all approvals and permits required for the performance of its service in a timely manner. Subsequent changes or supplements to the scope of service require the written form. In the event of a change or addition to any service, the Contract Partner undertakes to compile a complete change history for the order. This change history shall contain a list of every project-related change or addition. The basis of this change history is the original contract covering the services that are subject to all changes and additions. The Contract Partner shall personally perform all services transferred to it according to the contract. Any transfer of the services or parts of the services to third parties requires the prior consent (the minimal requirement is the written form) of the Principal.

3. Delivery, Delivery Period and Delayed Delivery

The service shall be performed at the agreed location (place of fulfilment). If no such location is agreed in the contract, the service shall be performed at the place of business of the Principal. The agreed delivery period is generally binding. The Contract Partner undertakes to provide immediate written notice if it looks likely that it cannot comply with the agreed delivery periods. If the Contract Partner fails to perform its service or fails to do so within the agreed delivery period, it shall be in default. If, in the event of a delay, the service is no longer of any use to the Principal (fixed service), the latter may withdraw from the contract. This shall also apply if the Contract Partner notifies its inability to perform the service according to deadline. For services that are not fixed services, the same applies if the Contract Partner misses an appointed delivery time. If the Contract Partner defaults on its service, the Principal – alongside further statutory claims – shall be able to demand liquidated damages arising from the delay amounting to 0.25 % of the net price per full calendar day; however, in total, not more than 5 % of the net price of the service performed late. The Principal reserves the right to provide evidence that greater damage has arisen. The Contract Partner reserves the right to provide evidence that no damage at all, or only significantly lesser damage, has arisen.

4. Acceptance/Defects/Supplier Recourse

The Contract Partner shall be entitled to partial performances only if this has been expressly agreed upon. The Principal shall be able to refuse acceptance of the service only in the event of significant defects. Complaints concerning any defects that are detected upon acceptance must be raised within five working days. The service shall be examined for hidden defects within five working days following acceptance. Complaints shall likewise be raised within five working days of discovery in the context of defects discovered during the examination. Upon the purchase of goods, the Principal – in deviation from § 442 paragraph 1 page 2 German Civil Code, BGB – shall be entitled to raise claims for defects, without restriction, including in the event that the defect remained unknown to it upon formation of contract as a result of gross negligence. If amendment of the service is owed, this shall be performed at the place of fulfilment. This does not apply to location-independent services (software etc.). Amendment also includes removal of the defective goods and re-installation, as far as the goods had been installed in another object or affixed to another object in accordance with their type and intended use. The Principal's statutory claim to reimbursement of corresponding costs remains unaffected. The costs required for the purposes of examination and supplementary performance shall be borne by the Contract Partner even if it emerges that no defect did, in fact, exist. Liability for damages in the event of an unjustified request to eliminate defects remains unaffected; in this respect, however, the Principal shall be held liable only if it recognises, or grossly negligently fails to recognise, that no defect existed. The parties agree upon the written form for notifications of defects. In the context of supplier recourse, the Principal shall be entitled, in particular, to stipulate exactly the type of supplementary performance from the Contract Partner which the Principal owes to its end purchaser in the individual case. The Principal's statutory right to choose (§ 439 paragraph 1 BGB) is not restricted as a result of this. Claims arising from supplier recourse shall not lapse as a result of the fact that the Principal or its customer has processed the goods. Before the Principal acknowledges or fulfils a claim for defects asserted by its customer (including compensation of costs in accordance with §§ 445a paragraph 1, 439 paragraph 2 and 3 BGB), it shall notify the Contract Partner and request a written reaction, under provision of a brief description of the matter. If no substantiated reaction occurs within the set, appropriate deadline and if a consensual solution is also not produced, the claim for defects actually granted by the Principal shall be considered owed. In this event, the burden of proof to the contrary lies on the Contract Partner.

5. Termination of Contract

In the event that the end purchaser of the service cancels the contract on grounds not attributable to the Principal, and the Contract Partner's service no longer applies as a result, the Principal shall reimburse solely the order-related expenditures accrued up until termination of contract, including costs arising from non-cancellable agreements. The Contract Partner shall not be entitled to any claims for damage compensation beyond that.

6. Payment Conditions

The agreed prices are binding. Unless otherwise agreed in the individual case, the price includes all services and supplementary services by the Contract Partner (e.g. assembly, installation) as well as all associated costs (e.g. regulations-compliant packaging, transport costs including any transport and third-party liability insurance). Following full, complaints-free provision of service, the Contract Partner shall bill for the service in one invoice in line with the statutory provisions. The Contract Partner's demand is payable after receipt of the original invoice by the Principal. The parties agree a payment target of 30 days. The Principal shall owe no post-maturity interest. The statutory provisions apply in the event of delayed payment. Default occurs only after receipt of a separate reminder in written form, setting an appropriate deadline. The Principal is entitled to rights to offset and to withhold services, as well as the plea of unfulfilled contract, within the statutory scope. In particular, it is entitled to withhold due payments while there are still outstanding claims arising from incomplete or defective services. The Contract Partner has a right to offset or to withhold services only on account of legally determined or undisputed counter-claims.

7. Non-Disclosure

The Contract Partner undertakes to maintain secrecy concerning all information or processes becoming known due to the business relationship between the parties and the performance of services as well as in relation to all documents received. This also applies with regard to all other internal matters of the contract parties or of other involved third parties. The Contract Partner is entitled to refer to its services on behalf of the Principal in the context of its own publicity only with the express written agreement of the Principal. Any forwarding of documents or data, regardless of what form it takes, is permissible only with the written agreement of the Principal. For every case of culpable contravention of this non-disclosure statement, the Contract Partner promises a contractual penalty, the amount of which is left to the Principal's discretion and will be examined for its commensurability by the responsible court in the event of dispute. The raising of further claims for damages remains unaffected by this. Every breach of the duty of non-disclosure justifies the cancellation without notice of the contractual relationship by the Principal as well as the raising of claims for damages.

8. Rights of Exploitation and Use

As far as the services to be performed by the Contract Partner in the context of the contract justify or, respectively, comprise commercial intellectual property rights (such as brands, patents, licences, utility patterns and design) or copyrights in favour of the Contract Partner or of any of its employees, the Contract Partner herewith transfers to the Principal, concerning these protected service outcomes, the comprehensive, exclusive, temporally and spatially unrestricted rights of use for exploitation in all forms and media as well as the right to pass them on to third parties, particularly to those connected to the client, as far as this is covered by the contractual purpose. The Contract Partner is liable for ensuring that the services it performs can be used without restriction and, in particular, that no commercial intellectual property rights (such as brands, patents, licences, utility patterns and design) or author's / ancillary copyrights, or third-party rights, oppose this or that no corresponding statutory stipulations are breached. The Contract Partner releases the Principal from all claims arising from any breach of such commercial intellectual property rights or author's / ancillary copyrights. The Contract Partner provides assurance that its services are free of third-party intellectual property rights which could interfere with utilisation. Within the scope to which the Principal is granted corresponding rights of use, the latter is also entitled to adapt the service outcomes under consideration of the author's personality right and preservation of the intellectual character of the work or to have it modified or adapted in other ways and to utilise the service outcomes thus modified. If further use of the outcomes occurs beyond the specific contractual purpose and the specific project, the Contract Partner shall have a claim to further appropriate remuneration. Drafts, sketches, drawings, concept descriptions etc. coming to the notice of the Contract Partner shall remain, with all rights, the property of the Principal, and shall do so even if they have been handed over to the Contract Partner. Entitlement to utilisation by the Contract Partner requires express written agreement, and does so regardless of whether or not specially protected rights or copyrights exist. The documents are deemed entrusted to the Contract Partner as understood by § 18 of the German Act against Unfair Competition (UWG). The Contract Partner undertakes to refrain from any other exploitation in all forms, in particular reproduction and dissemination and forwarding to third parties as well as the performance of modifications without the express agreement of the Contract Partner.

9. Customer Protection Clause

The Contract Partner commits to customer protection in respect of the Principal and shall refrain from any direct or indirect competition in relation to the Principal's client, for whom the contractual services are ultimately to be performed, throughout the duration of contractual relations and up to 2 years after the contractual relationship has ended. For every case of culpable contravention of this customer protection requirement, the Contract Partner promises a contractual penalty, the amount of which is left to the Principal's discretion and will be examined for its commensurability by the responsible court in the event of dispute. The raising of further claims for damages remains unaffected by this.

10. Statute of Limitations

The reciprocal claims of the parties shall lapse according to the statutory provisions. Any curtailment of the limitation to the detriment of the Principal requires express prior agreement in written form. In the case of the purchase of goods, the general limitation period – in deviation from § 438 paragraph 1 no. 3 BGB – for claims for defects is 3 years after transfer of risk.

11. Minimum Wage/Tax/Data Protection

The Contract Partner undertakes to comply with the national minimum wage provisions pertaining to the place of fulfilment when performing its services. Further, it undertakes to urge subcontractors or other third-parties commissioned by it to comply with the national minimum wage provisions. The taxes falling due with the remuneration of its service shall be borne by the Contract Partner itself. It undertakes to comply, in particular, with all fiscal obligations pertaining to the place of fulfilment and connected with the performance of its service. It shall provide all requisite evidence to the Principal without being requested to do so. The Principal shall store the data of the Contract Partner, required for contract execution, for the duration needed for the contract execution, and shall provide assurance of compliance with the corresponding stipulations of the GDPR as well as with relevant regulations. The Contract Partner likewise undertakes to comply with the regulations of the GDPR, of the German Federal Data Protection Act BDSG, and with the respective national data protection regulations. Further, it undertakes to urge subcontractors or other third parties commissioned by it to comply with the relevant data protection regulations. As far as the Contract Partner, on behalf of the Principal, collects, processes or uses personal data, it is under obligation to present a declaration on order processing in accordance with the GDPR. For every case of breach of any of these obligations, the contractor undertakes to pay a contract penalty amounting to 5 % of the respective order value. This is to be offset against any claims to compensation on account of breach of confidentiality. For further information on data protection and your further rights please consult our detailed explanations on our website.

12. Closing Provisions

Binding agreements require the written form at the minimum. This also concerns framework contracts and individual agreements. Clarifications and indications by the Contract Partner, relevant in law, in relation to the contract (for example, setting of deadlines, reminder, withdrawal) are to be submitted in written form at the minimum. Statutory formal provisions and further evidence, particularly in the event of doubts concerning the declarer's legitimacy, remain unaffected. The exclusive, also international place of jurisdiction for all disputes is Munich. German law applies, under exclusion of the CISG. This also applies when the place of fulfilment of the service is located abroad.

General Purchasing Conditions

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