General Terms and Conditions for Purchasing Production Materials, Replacement Parts and Other Products of Tailorlux GmbH, Münster

I. Standard conditions

The legal relationship between the supplier and customer shall be governed by these conditions, as well as any other agreements. Amendments and supplements shall require the written form. These General Purchasing Conditions apply to all business relationships with our business partners and suppliers. These Purchasing Conditions shall only apply if the supplier is a company in the sense of Sec. 14 BGB (German Civil Code), a legal entity under public law, or a public law special fund.
The Purchasing Conditions shall apply, in particular, to contracts for the purchase and delivery of movable goods (hereinafter referred to as: goods), regardless of whether the supplier manufactures the goods itself or purchases them from another supplier (Sections 433, 651 BGB). The current version of the Purchasing Conditions shall also apply to future contracts for the sale and delivery of movable goods with the same supplier, even if we do not refer to them subsequently. These Purchasing Conditions shall apply exclusively. Any deviating, contradictory, or supplementary General Terms and Conditions of the seller shall only be considered part of the contract insofar as we have expressly agreed to their application in writing. This approval requirement shall apply in every case, including if we accept the supplier’s deliveries without reservation, in knowledge of the General Terms and Conditions.
Agreements concluded with the seller in individual cases (including ancillary agreements, supplements and amendments) shall always take precedence over these Purchasing Conditions. A written contract or our written confirmation shall be decisive for the content of such agreements. Legally significant declarations and notifications to be submitted to us by the seller after the contract is concluded (such as deadlines, warnings, withdrawal declarations) must be submitted in text form to be valid.

II. Order

1. Delivery contracts (order and acceptance) and delivery call-offs must be in written form, as well as amendments and supplements to such documents. Delivery call-offs can also be submitted via remote data transmission (fax, e-mail).
2. If the supplier does not accept the order within three weeks from the time of receipt, the customer shall be entitled to revoke it. Delivery call-offs shall be binding if the supplier does not reject them within one week of receipt.

III. Payment

1. Payment shall be made according to individual contractual agreements, and 30 days after the delivery in all other cases. If early deliveries are accepted, the due date shall be determined based on the agreed delivery deadline.
2. Payment shall be made by transfer or check.
3. If a delivery is defective, the customer is entitled to withhold payment until the contract is properly fulfilled.
4. The supplier is not entitled to assign its claims to third parties or allow them to be collected by third parties without the prior written approval of the customer, although the customer may not deny such approval unreasonably. If there is an extended retention of ownership, then approval shall be deemed granted. If the supplier assigns its claims against the customer to a third party without its approval in violation of clause 1, then the assignment shall nevertheless be valid. However, the customer can complete performance to either the supplier or the third party, at its discretion and with the effect of fulfilling its contractual obligations.

IV. Notification of defects

The customer must notify the supplier of any defects in the delivery promptly and in writing, once such defects are found during the normal course of business. In this respect, the supplier waives the right to object due to delayed notification of defects.

V. Confidentiality

1. The contractual partners hereby undertake to treat all non-public commercial and technical details that become known to them as part of the business relationship as trade secrets.
2. Drawings, models, templates, samples and similar objects may not be provided or otherwise disclosed to unauthorized third parties. Such objects may only be duplicated if necessary for operational reasons and in accordance with copyright law regulations.
3. Sub-contractors must be subject to the same obligation.
4. The contractual partners may only refer to their business relationship for advertising purposes with prior written approval.

VI. Delivery deadlines and terms

1. The agreed terms and deadlines are binding. Receipt of goods by the customer shall be decisive in determining whether the delivery deadline or term has been met. If free delivery is not agreed, the supplier must provide the goods in good time, taking into account the normal times required for loading and shipment. Default shall occur without reminder.
2. If the supplier predicts that it will have difficulties in production or in obtaining preliminary materials, and if circumstances occur which are beyond its control that are likely to prevent it from completing delivery on time and in the agreed quality, then the supplier must notify the customer of this immediately. This obligation applies to the supplier regardless of any obligations to pay claims for damages.

V. Delivery / transfer of risk / delivery delays

1. The seller is not entitled to have the services it owes performed by third parties (such as subcontractors) without the prior written approval of the customer. The seller shall bear the purchasing risk for its services, unless they are a one-off production.
2. When performing its services, the seller shall observe all relevant laws, standards and legal regulations, in particular relevant environmental protection, hazardous materials, hazardous goods and accident prevention regulations.
3. Deliveries shall be made free of charge to the location indicated in the order. If the destination is not indicated, and if not otherwise agreed, deliveries shall be made to the company headquarters in Münster. The respective destination shall also be the place of fulfillment (debt to be discharged at creditor’s domicile).
4. A delivery slip must be included with the delivery, including the date (availability and shipment), content of the delivery (article number and quantity) and order designation (date and number). If the delivery slip is not included or is incomplete, then the customer shall not be responsible for any resulting delays in processing or payment. A shipping notification with the same content must be sent separately from the delivery slip.
5. The risk of accidental destruction and deterioration in the goods shall be transferred to the customer upon handover at the place of fulfillment. If acceptance has been agreed upon, it must be completed before the transfer of risk. The statutory regulations of law on contracts for work, furthermore, apply accordingly to acceptance. There is no difference between handover and acceptance, if the customer in default of acceptance.
6. The statutory regulations apply to default of acceptance. However, the supplier must expressly offer its services to the customer if a specific or determinable calendar time is agreed for an action or participation by the customer (such as providing materials). If the customer falls into default of acceptance, the supplier may request reimbursement of its additional expenditures in accordance with the law. If the contract relates to a product to be produced by the supplier that cannot be transferred to others (one-off production), then the supplier shall only have further rights if the customer is obligated to participate in some manner and is responsible for its failure to do so.
7. If the supplier does not perform its services, or does not do so within the agreed delivery time, or if it falls into default, then the rights of the customer – in particular the rights to reimbursement of damages or withdrawal – shall be determined by law. The regulations of para. 8 shall remain unaffected.
8. If the supplier is in default, then the customer can demand a flat-rate reimbursement of the default damages of 0.5% of the net price, per complete calendar week, but not more than a total of 5 % of the net price of the goods which are delivered late, in addition to further statutory claims. The customer reserve the right to provide proof that damages incurred were higher. The supplier reserves the right to provide proof that no damages or significantly lower damages were suffered by the customer.
9. In cases of slight negligence, the claims for damages shall be restricted to additional shipping costs, retrofitting costs, and additional costs for covering purchases if a grace period passes unsuccessfully, or if the customer is no longer interested in the delivery.

VI.  Defective deliveries

1. The statutory regulations apply to the rights regarding material and legal defects in the goods (including incorrect, excess or reduced deliveries and improper assembly, defective or missing assembly, operating, or other instructions) or other breaches of duty by the supplier, unless otherwise agreed in the following.
2. In particular, by law the supplier is liable for ensuring that the goods possess the agreed characteristics upon transfer of risk to the customer. The product descriptions upon which the respective contract is based or which are included in the contract in the same manner as these Purchasing Conditions – in particular if they are named or referred to in the order – shall be considered decisive for the agreed characteristics.
3. In deviation from Sec. 442 para. 1 clause 2 BGB, the customer is entitled to claims for damages without restriction even if they were unaware of the defect when the contract was concluded due to gross negligence.
4. The statutory regulations apply (Sections 377, 381 HGB – German Commercial Code) to commercial investigation and complaint obligations, with the following stipulation: The customer’s investigation obligation shall be restricted to defects that are noted during an incoming goods control and external visual inspection, including the delivery documents, and during random quality controlling (such as damage in transit, incorrect or reduced deliveries). If acceptance is agreed, there is no investigation obligation. Furthermore, the extent to which the investigation is feasible in consideration of the circumstances of the individual case and the normal course of business shall be decisive.
   The customer’s obligation to submit complaints for defects discovered later on shall remain unaffected. In all cases, the customer’s complaint (notification of defects) shall be considered prompt if it is received by the seller within 5 business days. Goods not delivered in accordance with the contract can be returned by the customer at the cost and risk of the supplier.
5. If the supplier does not fulfill its obligation to provide supplementary performance – at the customer’s discretion, either through correcting the defect or delivering goods free from defects – within a reasonable period to be set by the customer, then the customer can itself correct the defects and demand reimbursement from the supplier for any resulting expenses, or request an appropriate advance payment. If supplementary performance by the supplier has failed or if it would be unreasonable for the customer (for instance due to particular urgency, risk to operational reliability, or impending, unreasonable damages), then there is no need to set a deadline; the supplier must be informed promptly, and in advance if possible.
6. Furthermore, the customer is entitled to reduce the purchase price or withdraw from the contract in accordance with the law due to material defects or defects of title. In addition, it be entitled to reimbursement of damages and expenditures under the law. This applies in particular to costs for investigations.
7. In case of a defective delivery, the customer’s claims under the Product Liability Act, or resulting from unlawful actions and conducting business without a contract shall remain unaffected by this section X. Guaranteed characteristics and shelf lives must be expressly indicated as such in writing.

VII. Force majeure

Force majeure, labor disputes, unrest, official measures and other unforeseeable, unavoidable and serious events shall release the contractual partners from their performance obligations for the duration of the disruption and to the extent of its effect. This also applies if these events occur when the contractual partner in question is already in default. The contractual partners are obligated to promptly provide the necessary information and to adjust their obligations to the changing circumstances in good faith, insofar as this is reasonable.

VIII. Quality and documentation

1. The supplier shall observe standard technical practice and shall observe the safety regulations and agreed technical data for its deliveries. Changes to the delivery objects shall require prior written approval from the customer. The supplier shall also regularly review the quality of its delivery objects, independent of this. The contractual partners shall inform one another of potential quality improvements.
2. If the supplier and customer have not specifically agreed to the type and scope of inspections or to the testing materials and methods, then upon request by the supplier the customer is prepared to discuss the inspections with it within the framework of its expertise, experience, and capabilities, in order to determine the required inspection technology. Furthermore, upon request the customer shall inform the supplier regarding relevant safety regulations.
3. The supplier has had its quality management system (QM system) certified under the relevant standards (DIN ISO); if it has not already done so, the supplier shall work to have its QM system certified in the near future. The supplier shall inform the customer promptly of changes to its QM system (certification status). Likewise, the supplier shall work to install a certified environmental and/or energy management system covering all areas of its company.
4. Inspection documentation shall be stored for ten years and submitted to the customer upon request. The supplier shall likewise obligate its preliminary suppliers to the same extent as permitted by law.

IX. Liability

Unless other liability regulations are agreed elsewhere in these conditions, the supplier shall only be obligated to reimburse damages incurred directly or indirectly by the customer due to a faulty delivery, due to the violation of official safety regulations, or due to any other legal reasons for which the supplier is responsible as follows.

1. In general, the customer shall only have a claim to damages if the supplier is culpable for the damages which it causes.
2. Unless a claim is made against the customer due to liability regardless of culpability towards third parties under mandatory law, the supplier shall only reimburse the customer if it would also be directly liable. The principles of Sec. 254 BGB shall apply accordingly to compensation for damages between the customer and supplier. This also applies to direct claims by the supplier.
3. The reimbursement obligation does not apply if the customer has effectively limited its own liability towards its purchasers. The customer shall attempt in this respect to agree to limitations of liability to the benefit of its suppliers as permitted by law.
4. Claims by the customer are excluded if the damages were caused by a violation of operating, maintenance and installation specifications for which the customer is responsible, as well as improper or unsuitable use, incorrect or negligent handling, natural wear or improper repairs for which the customer is responsible.
5. The supplier shall be liable for measures by the customer to prevent damages (such as recall campaigns) if it is legally obligated.
6. The customer shall inform and consult the supplier promptly if it wants to make a claim against the supplier under the above regulations. It must provide the supplier an opportunity to investigate the damages. The contractual partners shall coordinate the measures to be taken, in particular in cases of settlement negotiations.
7. The supplier hereby undertakes to conclude and maintain appropriate operating and product liability insurance, and submit the customer proof of insurance upon request.

X. Protected rights

1. The supplier shall be liable for claims resulting from violations of property rights and applications for property rights (protected rights) in the course of contractual use of the delivery objects, if at least one of the rights from the family of protected rights is published either in the supplier’s home country, by the European Patent Office, or in either the Federal Republic of Germany, France, Great Britain, Austria, or the USA.
2. It shall indemnify the customer and its purchasers from all claims resulting from the use of such protected rights.
3. This shall not apply if the supplier has manufactured the delivery objects based on descriptions or information provided by the customer, and does not know or should not be expected to know in this respect that its developed products would violate protected rights.
4. If the supplier is not liable in accordance with clause 3, then the customer shall indemnify it against all third party claims.
5. The contractual partners hereby undertake to promptly inform one another of any violation risks and alleged violations of which they become aware, and to give one another an opportunity to work together to counteract such claims.
6. Upon request by the customer, the supplier shall inform it of the use of published and unpublished protected rights and applications for protected rights, either its own or licensed by others, to the delivery object.

XI. Statute of limitations

1. The mutual claims of the contractual parties shall expire in accordance with the law, unless otherwise agreed in the following.
2. In deviation from Sec. 438 para. 1 no. 3 BGB, the general limitation period for defect claims shall be 3 years from the transfer of risk. If acceptance has been agreed, the limitation period shall begin upon acceptance. The 3-year limitation period also applies accordingly to claims for legal defects, whereby the statutory limitation period for third party in rem claims for return shall remain unaffected; claims for legal defects shall furthermore never expire as long as the third parties can still assert their rights against us, in particular if these do not expire.
3. Limitation periods under commercial law, including the above extensions, shall apply to all contractual defect claims as determined by law. If the customer is entitled to extra-contractual claims for damages due to a defect as well, the regular statutory limitation terms shall apply, unless the application of limitation periods under commercial law in the individual case would result in a longer limitation period.

XII. Confidentiality and retention of ownership

1. The customer shall reserve rights of ownership and copyrights to images, plans, drawings, calculations, implementation guidelines, product descriptions and other documents. Such documents shall be used only for the contractual services and must be returned to it after the contract is complete. These documents must be kept confidential towards third parties, even after the end of the contract. This non-disclosure obligation shall only cease to apply if and insofar as the knowledge disclosed in the provided documents is publicly known.
2. The above provision applies accordingly to substances and materials (such as software, finished and semi-finished goods) and to tools, templates, samples and other objects which the customer provides the supplier for manufacturing. Such objects shall be stored separately at the cost of the supplier as long as they are not processed, and insured appropriately against loss and destruction.
3. If the supplier processes, mixes, or combines the provided objects, then such work will be considered completed on behalf of the customer. If its rights of ownership still apply after the goods are processed, mixed or combined with third-party goods, then the customer shall receive co-ownership to the new goods in relation to the value of the goods provided by it to the other goods.
4. Goods shall be transferred to the customer unconditionally and regardless of whether the purchase price has been paid. Any expanded or extended retention of ownership shall be excluded, so that any effectively declared retention of ownership by the supplier shall only apply until payment is received for goods delivered to the customer, and only to the customer.

The supplier may only refer to its business relationship with the customer in its advertisements if the customer expressly agrees to this.

XIII. Billing and payment

1. Two copies of invoices must be submitted. Payment shall be made after the deliveries and services are completed in full, and after a proper invoice is submitted, and must include the order number, supplier number, item number(s), quantity and individual price.
2. If payment is made within 14 days of the due date, the parties agree to a 3% discount, unless otherwise agreed in the individual contract. Furthermore, payment shall be made for the net amount within 30 days from the date the invoice is issued and the delivery completed.

XIV. General Provisions

1. If a contractual partner halts payments or if a motion is made for bankruptcy proceedings against its assets, or extra-judicial settlement proceedings, the the other party is entitled to withdraw from the agreement with respect to the portion of the agreement that has not yet been fulfilled.
2. If a provision of these conditions and the other agreements made is or becomes invalid, this shall not affect the validity of the remaining content of the agreement. The contractual partners are obligated to replace the invalid provision with a regulation coming as close as possible to it in economic terms.
3. The law of the Federal Republic of Germany shall apply exclusively, unless otherwise agreed. The United Nations Convention on Contracts for the International Sale of Goods of 4/11/1980 shall not apply.
4. If the seller is a merchant in the sense of the Commercial Code, or a legal entity under public law or a public law special fund, then the exclusive place of jurisdiction for all disputes arising from the contractual relationship, including international disputes, shall be our company headquarters in Münster. However, we are also entitled to file suit where the delivery obligation is fulfilled.