General Purchasing Terms (GPT)
General Purchasing Terms (GPT) of
CUTMETALL Recycling Tools Germany GmbH,
Am Eichgraben 8, 98673 Eisfeld, Germany,
as of 1 January 2022
§1 Scope of application
- The following General Purchasing Terms (hereinafter referred to as GPT) apply exclusively to all contracts and legal relationships between the supplier and CUTMETALL Recycling Tools Germany GmbH (hereinafter referred to as CUTMETALL or the customer), which involve the delivery of moveable property. Similarly, these GPT also apply to any framework delivery agreements concluded between CUTMETALL and its suppliers, including the related requests from CUTMETALL for goods or services. The GPT of CUTMETALL shall apply exclusively; CUTMETALL shall not recognise any terms and conditions of the supplier that conflict with or differ from these GPT or statutory provisions. The GPT of CUTMETALL shall also apply if CUTMETALL accepts the supplier's services without reservation or CUTMETALL provides services without reservation, while being aware that the supplier's conditions conflict with or deviate from CUTMETALL's purchasing conditions.
- The General Purchasing Terms of CUTMETALL also apply to all future deliveries of the supplier goods or services to CUTMETALL until new GPT come into force. The version of the General Purchasing Terms valid at the time of contract conclusion is decisive and can be accessed at https://recyclingtoolsgermany.de/en/aeb/ https://recyclingtoolsgermany.de/aeb/ abrufbar sind.
- Rules deviating from these General Purchasing Terms are only effective if CUTMETALL has consented to them expressly in writing or in text form (via email).
- The General Purchasing Terms only apply if the supplier is an entrepreneur within the meaning of Section 14 of the German Civil Code (Buergerliches Gesetzbuch - BGB), a legal entity under public law or a special asset under public law.
- Indications to the validity of statutory provisions are just of clarifying meaning. Even without such a clarification, the statutory provisions are valid, insofar as they are not directly changed or explicitly excluded in these General Purchasing Terms.
§2 Offer, orders and order confirmations
- Orders and requests must be made by signed written instrument to be effective, with transmission by means of telecommunication being sufficient (Section 127 (2) of the German Civil Code (Buergerliches Gesetzbuch - BGB). This also applies to amendments, supplements and side agreements to the delivery agreement.
- The supplier must inform the customer (CUTMETALL) of any errors that are obvious to the supplier (e.g. spelling and calculation errors) and incompleteness of the order, including the order documents, for the purpose of correction or completion prior to acceptance. If the supplier in uncertain about any aspects of the CUTMETALL order, the supplier is obligated to clarify these with CUTMETALL before concluding the contract.
§3 Placement of orders
- If the supplier does not accept an order from CUTMETALL within 5 working days of receipt, CUTMETALL is entitled to cancel the order. Orders placed by CUTMETALL in a current business relationship and requests by CUTMETALL become binding unless the supplier objects to such orders or requests without undue delay and no later than 5 working days from receipt.
- The supplier shall enclose one copy of a delivery slip with each shipment of goods to be delivered to CUTMETALL. The supplier shall issue two copies of each invoice in PDF format. The supplier shall issue two copies of each invoice in PDF format to invoice@CUTMETALLtools.com. invoice@CUTMETALLtools.com.
§4 Prices and terms of payment, rights of retention
- The price specified in the order is binding. All prices include statutory value-added tax, unless this is shown separately.
- Unless otherwise agreed in individual cases, the price includes all services and ancillary services of the supplier (e.g. assembly, installation) and all ancillary expenses (e.g. packaging and transport costs, including any transport and commercial liability insurance).
- The prices and terms of payment agreed in a framework delivery agreement are valid for one year from the day the framework delivery agreement was concluded, unless explicitly stipulated otherwise in the relevant framework delivery agreement.
- Payment of an invoice by CUTMETALL does not constitute acceptance of the goods as proper.
- Unless otherwise agreed, any and all claims of the supplier for remuneration or reimbursement of expenses shall be payable within 30 days of receipt of a proper invoice. If payment is made within 14 days, the supplier shall grant CUTMETALL a discount of 2% on the net amount of the invoice.
- CUTMETALL owes no default interest within the meaning of Section 353 of the German Commercial Code (Handelsgesetzbuch – HGB). In the event of default in payment, the statutory provisions shall apply. CUTMETALL is entitled to setoff and retention to the extent determined by law.
- The supplier is only permitted to assign any rights or obligations under legal transactions made with CUTMETALL with the prior consent of CUTMETALL. In particular, claims against CUTMETALL may not be assigned and checks issued by CUTMETALL may not be transferred by endorsement. Section 354a of the German Commercial Code shall not be affected hereby.
- If, according to the contractual arrangements, the supplier has undertaken the assembly or installation of the goods, the supplier shall bear all necessary ancillary expenses such as travel expenses, costs for providing tools and allowances, unless agreed otherwise.
- Cost estimates and offers are free of charge unless explicitly agreed otherwise.
- A delivery or service is only provided to CUTMETALL once all certificates, invoices, freight documents, certificates of origin, guarantee letters, technical documentation, operating instructions, safety data sheets, installation guidelines and storage regulations or similar, which have been agreed or are usually required and expected, have also been handed over to CUTMETALL in full.
- Delivery dates stated in orders and requests are binding. In the event of default in delivery, CUTMETALL is entitled to the rights provided by law. Moreover, in the event of a culpable default in delivery, CUTMETALL is entitled to demand a penalty of 2% of the delivery value for the first commenced week, 1% for the second commenced week and 0.5% for every commenced week thereafter. The maximum penalty is such cases is limited to 5% of the delivery value. The penalty can be claimed in addition to performance and will not be deducted from any statutory damage entitlement. In the event of acceptance of delayed goods, CUTMETALL can claim such a penalty even without explicit reservation at any time prior to the final payment of the goods delayed. If and to the extent such practice corresponds to the due care of a prudent businessman, especially to ensure uninterrupted production processes at CUTMETALL, CUTMETALL is entitled to make covering purchases and to demand damages from the supplier for this. The supplier shall also bear any additional costs caused by expedited transport which is necessary to meet specific delivery dates.
- If the order is delivered prior to the agreed delivery date, CUTMETALL is entitled to refuse acceptance of the goods and, at the discretion of CUTMETALL, to send them back at the supplier’s risk and expense or to store them at a third party warehouse at the supplier’s expense.
- The supplier is obliged to inform CUTMETALL in writing without undue delay if any circumstances occur or become apparent to the supplier which give rise to the assumption that a delivery date stated in an order or call form cannot be met.
- The place of performance shall in all cases be the place of receipt agreed in the order or stated by CUTMETALL in the request form
- Acceptance by CUTMETALL of a delayed delivery of goods or services without reservation involves no waiver of any rights to which CUTMETALL may be entitled due to such delayed delivery.
§6 Transport, passing of risk
- Delivery within Germany is "carriage free" (i.e. the supplier bears the costs and risk) to the delivery location specified in the order.
- Unless otherwise agreed in the framework delivery agreement or stated in the order, deliveries by the supplier to CUTMETALL shall be made to the CUTMETALL plant stated in the order/request form.
- A delivery note stating the date, content of the delivery and our order ID must be enclosed with the delivery. If the delivery note is missing or incomplete, we are not responsible for any resulting processing and payment delays. A dispatch note with the same content as the delivery note must be sent to CUTMETALL separately from the delivery note.
- Once the goods have been delivered at the place of performance, the risk of accidental destruction and degradation of the goods is transferred to CUTMETALL. Agreement to the acceptance of the goods is decisive for the transfer of risk.
§7 Defective delivery and warranty
- The goods delivered have to comply in all respects with the recognised rules of technology, the national and international safety regulations and the agreements regarding the quality of the goods set out in the order or in the framework delivery agreement and – if their observance is part of the order or agreed in the framework delivery agreement – the drawings and samples approved by CUTMETALL (performance in conformity with the contract). Any intended deviations from drawings or samples which are binding for the order/request have to be announced and explained by the supplier to CUTMETALL in due time by written notice (with transmission by means of telecommunication being sufficient). Such deviations may be carried out only after explicit approval by CUTMETALL.
- Statutory provisions (Sections 377 and 381 of the German Commercial Code) shall apply to the commercial obligation of examination and notification of defects, subject to the following restriction (unless CUTMETALL has concluded a separate quality assurance agreement QAA with the supplier, in which case the provisions of the QAA take precedence): the customer's obligation of examination is limited to defects discovered by external examination during the incoming goods inspection at CUTMETALL, including the delivery documents (e.g. transport damage, deviation from the agreed quality, incorrect and short deliveries). If an acceptance procedure has been agreed, no examination is required prior to acceptance. Conformity with the contract will otherwise be assessed by means of a sampling scheme indexed by AQL values in accordance with DIN ISO 2859-1. Otherwise, it depends on the extent to which an examination is feasible in the ordinary course of business, taking into account the circumstances of the individual case. CUTMETALL's obligation to give notification of subsequently discovered defects remains unaffected. Irrespective of the obligation of examination, CUTMETALL's complaint (notification of defects) is considered immediate and timely if sent within 7 working days of the defects being discovered or, in the case of obvious defects, within 7 working days of delivery.
- If, exercising the due care of a prudent businessman, CUTMETALL is required to inspect 100% of all incoming goods as a result of an above-average occurrence of defects in a quality assessment procedure in accordance with clause 2. CUTMETALL is entitled to demand from the supplier reimbursement of the expenses incurred as a result of such inspection.
- CUTMETALL is entitled to return goods to the supplier if they are defective or in excess of the quantities ordered. Such return will be at the risk and expense of the supplier.
- If defects are discovered only during processing or use of the goods, CUTMETALL is also entitled to demand reimbursement of the processing expenses made in vain.
- The warranty period is 24 months from delivery of, and transfer of title in the goods to CUTMETALL.
- In addition to the rights based on defects, CUTMETALL is also entitled without limitation to the recourse claims within a delivery chain as defined by law (supplier recourse pursuant to Sections 445a, 445b of the German Civil Code). CUTMETALL is in particular entitled to demand from the supplier precisely the type of subsequent performance (subsequent improvement or replacement delivery) which CUTMETALL owes to its customers in an individual case.
- Prior to recognising or fulfilling a claim based on defects asserted by its customer (including reimbursement of expenses in accordance with Sections 445a (1), 439 (2) and (3) of the German Civil Code), CUTMETALL will inform the supplier and, briefly summarising the facts, ask the supplier for its comments in writing or in text form. If no substantiated comments are submitted within a reasonable period of time and no amicable solution is procured, the claim actually granted by CUTMETALL for defects is deemed owed to its customer. The supplier can in this case provide evidence to the contrary.
- The claims of CUTMETALL under supplier recourse also apply if the defective goods were further processed by CUTMETALL or another entrepreneur, e.g. by incorporation into another product.
- The statutory recourse claims under Sections 445a, 445b of the German Civil Code and the provisions in clauses 7., 8. and 9. also apply accordingly if the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) is applicable to the contractual relationship.
- CUTMETALL shall be informed in due time of any major changes in the materials processed by the supplier or in the processing procedure. CUTMETALL is entitled to examine whether the changes have any adverse effects on the goods or other services to be delivered by the supplier. If so requested by CUTMETALL, the supplier will make available the documents required for this and allow the examinations required for this to be carried out on site at the supplier.
§8 Packaging, return
- No packaging costs will be charged to CUTMETALL by the supplier.
- In the event of refusal of acceptance of certain goods or rescission by CUTMETALL, the supplier is entitled to collect the goods without undue delay at the location designated by CUTMETALL at the supplier's expense. Notwithstanding the above obligation of the supplier to collect the goods, CUTMETALL is entitled at any time to return defective goods to the supplier. Such return will be at the risk and expense of the supplier.
- If so requested by CUTMETALL, the supplier is obliged to take back at its own expense the packaging materials used for its deliveries to CUTMETALL.
§9 Product liability, product recalls
- If the supplier is responsible for product damage, he shall indemnify CUTMETALL against any third-party claims insofar as the origin lies within the supplier's sphere of control and organisation. Within this context, the responsibility of the supplier shall also extend to his subcontractors.
- As part of his indemnity obligation, the supplier shall reimburse any expenses resulting from or in conjunction with claims made by third parties, including recall campaigns undertaken by CUTMETALL, in accordance with Sections 683 and 670 of the German Civil Code. However, CUTMETALL shall inform the supplier, as far as possible and reasonable, about the content and scope of any recall measures, and give him the opportunity to comment. Further legal claims shall remain unaffected.
- The supplier must conclude and maintain an extended product liability insurance policy with flat-rate coverage for personal injury and property damage amounting to 2 million EURO and coverage amounting to 1 million EURO for financial losses.
§10 Reservation of title, provision of materials, tools, confidentiality
- Title to the goods shall pass unconditionally on delivery of the goods to CUTMETALL, regardless of the payment of the purchase price. If CUTMETALL in an individual case accepts an offer of the supplier to transfer title subject to payment of the purchase price, the supplier’s reservation of title lapses on payment of the purchase price for the goods delivered, at the latest. Any prolonged or extended reservation of title by the supplier shall be excluded.
- Any models, samples, production facilities, tools, materials, drawings, worksheets, standard sheets, print templates and similar items provided by CUTMETALL remain the property of CUTMETALL and will be kept in custody by the supplier free of charge, with the supplier exercising the due care of a prudent businessman and such property of CUTMETALL being kept separately from any other items in the supplier’s possession, marked as property of CUTMETALL and used by the supplier only to perform the deliveries or services for CUTMETALL.
- The supplier is obliged to carry out any maintenance or repair work required on CUTMETALL tools timely and at its own expense. The supplier agrees to handle CUTMETALL tools properly and professionally and to ensure compliance with the accident prevention regulations applicable to such tools as issued by the employers’ liability insurance association in charge of the supplier. Incidents, if any, shall be immediately reported to CUTMETALL by the supplier; if the supplier culpably fails to do so, damage claims of CUTMETALL shall not be affected thereby.
- If the supplier processes or remodels any materials provided by CUTMETALL or combines or mixes them with other items, such processing, remodelling, combination or mixing is made on behalf of CUTMETALL. CUTMETALL immediately becomes the owner of any items resulting from such processing, remodelling, combination or mixing. If the materials are processed, remodelled or combined together with other items not owned by the supplier, CUTMETALL is entitled to co-ownership in the new item in accordance with the ratio of the value of the CUTMETALL materials provided which were processed, remodelled, combined or mixed to the value of the new item. If this is not possible for legal reasons, CUTMETALL and the supplier agree that on completion of the manufacturing process CUTMETALL will immediately become the owner of the new item.
- Any models, samples, production facilities, tools or drawings which CUTMETALL makes available to the supplier may not be copied or disclosed to any third party without the prior written consent of CUTMETALL. They shall be protected from unauthorised access and use by appropriate confidentiality measures and insured against damage. The supplier shall return them to CUTMETALL at the supplier’s expense and without a separate request if the supplier does not need them anymore for further performance of the delivery or service and CUTMETALL has not explicitly allowed the supplier to keep them.
- Tools, moulds or similar items which are produced entirely at the expense of CUTMETALL become the property of CUTMETALL once produced. For tools which are produced partly at the expense of CUTMETALL, CUTMETALL and the supplier shall agree on a separate, individual arrangement regarding ownership. Products manufactured according to documents designed by CUTMETALL such as drawings, tools and similar documents or other confidential information or by means of tools provided by CUTMETALL may be neither used by the supplier itself nor offered or supplied by the supplier to a third party. This also applies accordingly to print orders placed with CUTMETALL.
- If the supplier violates the prohibition of unauthorised use or breaches the duty of confidentiality, CUTMETALL is entitled to rescind the contract in whole or in part and to demand damages, without prejudice to any other rights.
- CUTMETALL reserves all rights in any items or information provided (including copyright and the right to file industrial property rights such as patents, designs, semi-conductor protection, etc.).
- If the title of CUTMETALL is impaired by third parties, in particular in the event of seizure or attachment, the supplier shall inform CUTMETALL without undue delay, sending all available documents such as attachment minutes, and advise the relevant third party of the title held by CUTMETALL. CUTMETALL will charge the supplier for any costs incurred as a result of the impairment of title.
§11 Industrial property rights
- The supplier is responsible in accordance with clause 2. for ensuring that the goods delivered or other services provided by the supplier do not infringe any third party industrial property rights.
- The supplier is obliged to indemnify CUTMETALL and the customers of CUTMETALL from any and all claims which third parties may assert against CUTMETALL or CUTMETALL customers on account of infringement of industrial property rights as referred to in clause 1, and to reimburse CUTMETALL all the necessary expenses made in connection with such claims. This does not apply to the extent that the supplier proves that the supplier neither is responsible for the industrial property right infringement nor should have been aware of such infringement at the time of delivery if it had exercised the care of a prudent businessman. Any further statutory claims based on legal defects of the goods or services delivered to CUTMETALL shall not be affected thereby.
- CUTMETALL will inform the supplier without undue delay of the claims asserted against CUTMETALL and assist the supplier in the defence of such claims.
- Furthermore, the supplier is obliged to deliver to CUTMETALL such goods in place of the goods concerned which do not interfere with the rights of third parties, observing all specifications agreed, or to procure for CUTMETALL the right to use such rights free of charge to the extent required. If the supplier holds any industrial property rights of its own for specific applications of the goods delivered, the supplier shall grant CUTMETALL a right of joint use of such rights to the extent required and free of charge.
§12 General provisions
- Any amendments, additions, and other ancillary agreements relating to these General Purchasing Terms or concluded contracts require the written form. The same applies to changes to or cancellation of the written form.
- If individual provisions of these General Purchasing Terms (GPT) are invalid, the validity of the remaining provisions shall not be affected thereby. In place of the invalid provision such valid provision shall be deemed to have been agreed with retroactive effect which is as close as possible to the economic meaning of the invalid provision.
- If the supplier’s registered office is within the European Economic Area (EEA), the place of jurisdiction for all disputes arising from or in connection with the contractual relationships governed by these General Purchasing Terms shall be the district court which is competent for the location of the headquarters of CUTMETALL. However, CUTMETALL is also entitled at its discretion to take legal action against the supplier at the place where the supplier’s registered office or branch office is located or at the place of performance.
- If the supplier’s registered office is outside the EEA, all disputes arising from or in connection with this agreement shall be resolved with final effect in accordance with the Rules of Arbitration of the International Chamber of Commerce (ICC) by an arbitrator appointed in accordance with those Rules. The place of arbitration shall be the location of the headquarters of CUTMETALL. The language of the proceedings shall be German in this case. The court having jurisdiction pursuant to Section 1062 of the German Code of Civil Procedure (Zivilprozessordnung – ZPO) shall be the OLG Jena.
- If the supplier’s registered office is outside the EEA, the UNCISG of April 11, 1980 (UN Sales Convention) shall apply. If the supplier’s registered office is within the EEA, German law shall apply, with the exception of the CISG and private international law.
- When providing the service, the supplier shall observe all relevant standards, laws and regulations, in particular the relevant environmental protection, hazardous substances, dangerous goods and accident prevention regulations, insofar as the generally recognised occupational health and safety rules as well as company standards, drawings and other specifications provided are observed.
- CUTMETALL points out that personal data is stored in compliance with legal provisions, in particular the GDPR, and processed in connection with business transactions.
§13 Export regulations
- The supplier assures that the delivery is in compliance with all laws and regulations of the country of export and that all required permits have been obtained.