TOS purchase

Terms and conditions of purchase and contract work of HURST+SCHRÖDER GmbH

Status: 01.08.2022

I. Scope of application:

The following Terms and Conditions of Purchase and Contract Work apply to all purchase, work and work supply contracts (including contracts for contract work) of HURST+SCHRÖDER GMBH as "Purchaser" or "Buyer". They shall also apply to all our future contracts without further express reference.
Deviations, amendments and additions require our express written confirmation. General terms and conditions of the seller/contractor are hereby rejected. Paragraph 2 shall apply accordingly.
Acceptance of deliveries or services and payment of the purchase price/remuneration shall not be deemed to constitute consent to the seller's/contractor's terms and conditions of sale and delivery, even without express objection.

II Content of the contract:

Purchase orders, orders and delivery call-offs as well as their amendments and supplements must be made in writing. Orders and delivery call-offs transmitted by remote data transmission and EDP printout are also valid without a signature.
Verbal declarations require confirmation in the aforementioned form in all cases.
Our order is decisive for the content and scope (quality and quantity) of deliveries and services.
Insofar as we base our order on additional technical documents, drawings, etc., these shall also be deemed part of the contract. The values and standards specified by us determine the content of the service and must therefore be complied with.
Drawings/plans specified by us in individual cases, including tolerance specifications, shall become binding upon acceptance of the order/commission.
In the event of obvious errors, spelling mistakes and miscalculations, no liability shall exist.
In this case, as well as in the case of missing or incomplete documents, the seller/contractor must inform us immediately.

III Property rights and copyrights:

All drawings, models or samples which we make available to the seller/contractor for the execution of the order shall remain our property and shall be returned to us upon request.
The seller/contractor is obliged to keep secret all drawings, models, samples, instructions or other documents which are made available to him in connection with the execution of the contract. Without our prior written consent, the seller/contractor is prohibited from allowing third parties to inspect the aforementioned documents etc. or to make them available in any other form. The seller/contractor is prohibited from granting third parties access to the aforementioned documents etc. or making them available to third parties in any other way without our prior written consent.
Furthermore, the seller/contractor is prohibited from supplying tools or devices manufactured according to our drawings, models or samples as well as the goods manufactured with them - regardless of their production status - to third parties or manufacturing them for them without our prior written consent. This shall apply accordingly to all objects which have been developed according to specifications, ideas, plans or with our other cooperation (tests, trials, etc.). We are entitled to the intellectual property rights and - insofar as legally permissible - the copyright to all the aforementioned objects.
In the event of culpable breaches of the obligations under paragraphs 1 to 3, the seller/contractor shall be obliged to compensate us for all resulting damages.
As a rule, the tools and aids necessary for the fulfillment of the agreed work services or for the production of the agreed object shall be provided by the seller/contractor at his own expense.
If we make down payments or advance payments for tools or goods, ownership of the tools or goods shall pass to us (pro rata) in the ratio of the value of our payment to the total value at the time of receipt of payment by the seller/contractor. The handover shall be replaced by safekeeping of the tools/goods by the seller/contractor. The Seller/contractor shall ensure that our ownership of the tools and goods is identified. Tools are to be marked as the property of HURST + SCHRÖDER GMBH. Goods must be marked as far as possible and stored separately until delivery to us so that they can be separated at any time.
The seller/contractor is also obliged to observe the EC Machinery Directive, the relevant accident prevention, occupational health and safety and legal regulations, as well as the generally recognized safety and occupational technology and occupational health rules when executing the respective order.

IV. Terms of delivery:

Partial deliveries or services as well as excess or short deliveries/services require express agreement.
Transportation of the goods shall be at the risk and expense of the seller/contractor.
The risk of accidental destruction and/or loss shall pass to us when the goods are handed over at the place of receipt specified by us.
The seller is obliged to use packaging provided by us in individual cases. Otherwise we shall be entitled to reject the goods. If the goods are nevertheless accepted, the costs of the outer packaging shall be deducted from the purchase price/remuneration.

V. REACH clause and ROHS clause:

The supplier shall comply with the requirements of the Chemicals Regulation EC No. 1907/2006 (REACH Regulation) as amended. In particular, the supplier warrants that the substances have been registered. There is no obligation on our part to obtain authorization under the REACH Regulation for goods delivered by the supplier.
The supplier shall inform us immediately in writing if the contractual products contain substances that are listed in the SVHC candidate list, in Annex XIV or in Annex XVII of the REACH Regulation (as amended). Prior to the delivery of such substances, a separate release by us is required. The supplier shall indemnify us against any liability in connection with the violation of the REACH Regulation or compensate us for any damage arising from or in connection with the supplier's non-compliance with the Regulation.
The supplier shall ensure that the goods to be supplied by him fully comply with the requirements of Directive 2011/65/EU ("RoHS") as amended from time to time.

VI Delivery and performance deadlines/delay:

The delivery and performance deadlines stated in the written orders are binding.
The date of receipt at the place of receipt specified by us shall be decisive for the timeliness of deliveries or subsequent performance; the date of acceptance shall be decisive for the timeliness of deliveries including assembly and other work services.
The seller/contractor must inform us immediately of any delays recognizable in advance and obtain our decision.
The unconditional acceptance of a delayed delivery/service shall not constitute a waiver of any claims for compensation to which we may be entitled.
If the seller/contractor culpably fails to perform within the reasonable grace period set by us, we shall be entitled to withdraw from the contract and/or to assert the statutory claims for damages.
In the case of a fixed-date transaction within the meaning of § 376 of the German Commercial Code (HGB), no grace period is required to exercise the right of withdrawal or to assert a claim for damages.
In cases of force majeure (e.g. natural disasters, mobilization, war, riots, etc.) or in cases of other similar events (e.g. accidents, strikes, lockouts, significant operational disruptions, official measures or omissions, etc.), we are temporarily released from our obligation to accept and perform until they have been remedied or ended. The seller/contractor shall be informed as soon as possible.
If the seller/contractor for his part invokes "circumstances exempting him from performance", in particular force majeure events, he shall be obliged to notify us of these immediately in writing. If he violates his obligation to notify us, he shall lose the right to invoke such circumstances.

VII Prices and terms of payment:

All quotations and cost estimates are always free of charge and binding.
The agreed prices are net prices free domicile including packaging. The applicable value added tax shall be shown separately.
The agreed prices are fixed prices. In the event of an increase in raw material and/or production costs, the seller/contractor shall bear the price risk. He is not entitled to unilateral price increases. Withdrawal from the contract is only permissible under the conditions of § 313 BGB.
Payment periods set by the seller/contractor shall only commence upon receipt of both the goods and the invoice.
Otherwise, payment shall be made on the 20th of the month following delivery with a 3% discount.
We reserve the right to retain the purchase price or a part thereof or to offset it against the purchase price under the statutory conditions.
The assignment of claims of the seller/contractor arising from the business relationship with HURST+SCHRÖDER GMBH is only permitted with our prior written consent.

VIII. Warranty:

We shall fulfill our commercial duty of inspection by randomly inspecting the goods sent to us within the scope customary in the industry. Further quality inspections are the responsibility of the seller.
Notification of defects shall be deemed timely if we send it to the seller/contractor within 14 days of discovering the defect. In the case of obvious defects, the 14-day period shall apply from receipt/acceptance of the goods.
If a material defect becomes apparent within six months of the transfer of risk, it shall be assumed that the item was already defective at the time of the transfer of risk, unless this assumption is incompatible with the nature of the item or the defect.
In the event of a justified notice of defect, we shall be entitled, at our discretion, to demand rectification (removal of defects) or subsequent delivery (replacement delivery).
Subsequent performance of the entire delivery can also be demanded if only part of the delivery is defective.
The expenses incurred in the course of subsequent performance shall be borne by the seller/contractor.
If the seller/contractor is unable to carry out the desired subsequent performance, if he does not comply with the request within the deadline set, if the subsequent performance fails or if setting a deadline is dispensable (e.g. in the event of particular urgency, imminent danger, etc.), we shall be entitled to reduce the purchase price/remuneration, to withdraw from the contract and/or to demand compensation. This shall also include the costs of any replacement procurement or the costs of rectification by a third party. § Section 637 BGB remains unaffected.
Compensation shall cover all damage adequately caused by the defective item.
If a defect is not recognizable in advance through appropriate material tests and if the defectiveness of the delivered item can therefore only be determined during production, the seller/contractor shall be liable, insofar as he is responsible for the defectiveness of the item, in addition to his obligation to subsequent performance for all damages caused by the discontinuation and delay of production as well as for the futile expenses already incurred.
Compensation shall also include damages resulting from the fact that the defective item has led to a defective product through installation or mixing. In individual cases, compensation shall therefore also include compensation for damages and expenses which we are obliged to pay within the scope of the statutory warranty obligation and/or recourse liability (Sections 478 et seq. BGB).
In principle, the warranty period is three years. If the statutory regulations including the regulations on recourse liability (§§ 438, 479 BGB) and suspension of expiry according to § 479 (2) BGB lead to a longer warranty period, these shall apply.
In the event of subsequent delivery, a new warranty period shall commence upon delivery of the new goods in place of the defective goods.
The warranty periods in paragraph 11 shall apply accordingly to the work performed by the seller/contractor.

IX. Product liability:

For defects in the goods which are attributable to a fault of the seller/contractor, the seller/contractor shall indemnify us and - if necessary - our customers from the resulting product liability upon first request to the extent that he himself would also be directly liable.
The seller/contractor is obliged to carry out all necessary measures within the scope of product monitoring at our instruction, including warning and recall campaigns in individual cases. The seller/contractor shall reimburse us for any costs we incur as a result of product recalls.
The seller/contractor must take out adequate insurance against the risks arising from product liability. Proof of insurance must be provided upon request.

X. Infringement of industrial property rights:

The seller/contractor guarantees that the goods are free from industrial property rights of third parties.
The seller/contractor shall indemnify us against all claims of third parties due to the infringement of industrial property rights with regard to the use, further processing, resale, etc. of the delivered goods. The seller/contractor shall be obliged to compensate us for all damages incurred by us as a result of an infringement of third-party industrial property rights. This also includes the costs of legal advice and representation.

XI Compensation for damages due to breach of other secondary obligations:

In the event of culpable breach of any other ancillary contractual obligations, the seller/contractor shall be liable to us for compensation for the damage adequately resulting therefrom.

XII Claim for damages by the seller/contractor:

Claims for damages by the seller/contractor against us, irrespective of the legal grounds, in particular for breach of duties arising from the contractual obligation and from tort, are excluded. This shall not apply in cases of liability for intentional or grossly negligent conduct, for injury to life, limb or health, or for breach of material contractual obligations.
However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless a limitation is excluded by law for another reason.

XIII Miscellaneous:

The legal relationship in connection with this contract shall be governed by German substantive law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
The place of performance for all deliveries and services, including payments, is Werdohl.
The sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the court with local jurisdiction for our registered office in Werdohl.
Should a provision in these terms and conditions or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.