1. general - scope of application
(1) The following terms and conditions of Testo Industrial Services GmbH (TIS) shall apply to all contracts concluded between TIS and the supplier for the delivery of goods. They shall also apply to all future business relations, even if they are not expressly agreed upon again. Any deviating terms and conditions of the supplier not expressly accepted by TIS in writing shall not be binding for TIS, even if TIS does not expressly object to them. TIS' terms and conditions shall also apply if TIS accepts the delivery without reservation in the knowledge of conflicting or deviating terms and conditions of the supplier.
(2) All agreements made between TIS and the supplier in connection with the purchase contracts shall be recorded in writing.
2. offer and conclusion of contract, contract documents, performance
(1) TIS shall be bound by a written offer for the conclusion of a purchase contract (order) for 14 calendar days. The Supplier may only accept the offer within these 14 calendar days by written declaration (order confirmation) to TIS or execute the offer without reservation by dispatching and receiving the goods.
(2) Drawings, plans and other documents belonging to the order shall remain the property of TIS. TIS reserves all copyrights to these documents. If the supplier does not accept TIS's offer within the period of time according to paragraph 1, these documents shall be returned to TIS without delay. After completion of the purchase contract, the documents shall be returned to TIS without request.
(3) The supplier shall not be entitled to have the service rendered by third parties (e.g. subcontractors) without our prior written consent.
3. prices and terms of payment
(1) Agreed prices are fixed prices, are free destination (i.e. free of shipping costs) and include all packaging costs, unless otherwise agreed in writing. The prices are exclusive of value added tax.
(2) Payment shall be made subject to proper delivery within 14 days with a 2% discount or after 30 days without discount. The receipt of the transfer order from TIS at the bank used by TIS shall be sufficient for the timeliness of the payment owed.
(3) The payment period shall begin when both the invoice and the goods have been received in full and in accordance with the contract. Payment shall be made subject to invoice verification. TIS reserves the right to choose the means of payment. In the event of defective delivery, TIS shall be entitled to withhold payment proportionately to the value of the goods until proper performance.
(4) If it has been agreed that TIS shall bear the shipping costs, the supplier shall select the most cost-effective shipping route. TIS shall not bear any additional costs for accelerated transport which are necessary to meet the delivery date.
(5) In the event of late payment, TIS shall owe interest on arrears at a rate of five percentage points above the prime rate. However, TIS shall not owe any interest on maturity.
4. delivery period and default in delivery
(1) The delivery periods and dates stated in the order are binding. The receipt of the goods at the place of destination is decisive. The supplier shall be obliged to inform TIS immediately in writing of any failure to comply with the delivery period.
(2) TIS shall be entitled to refuse acceptance of goods delivered before the delivery date specified in the order or for partial or excess deliveries and to return the goods at the supplier's expense and risk or to store them with third parties.
(3) Should TIS be prevented from accepting the delivery due to unavoidable circumstances, in particular in cases of force majeure, operational disruptions etc., the acceptance date shall be postponed by the duration of the hindrance. If acceptance is not possible for more than 6 months due to the aforementioned circumstances, TIS shall be entitled to withdraw from the contract without any claims on the part of the supplier.
(4) In the event of a delay in delivery, TIS shall be entitled to demand a contractual penalty in the amount of 1% of the delivery value for each commenced week, but not more than 5%. TIS shall be entitled to claim the contractual penalty in addition to performance. Further claims shall remain unaffected. If the delayed goods are accepted, TIS shall claim the contractual penalty at the latest upon payment of the final invoice.
5. delivery, transfer of risk, packaging
(1) Delivery shall be made within Germany to the place specified in the order. If the place of destination is not specified and nothing else has been agreed upon, delivery shall be made to our central goods receiving department in Kirchzarten, Gewerbestraße 3.
(2) Each delivery must be accompanied by a delivery bill with order number, cost centre and requester. Furthermore, TIS shall be sent a dispatch note with the same content separately from the delivery. In the absence of the aforementioned information, TIS shall not be responsible for delays in processing or payment.
(3) Unless otherwise agreed, the risk shall pass upon delivery at the place of receipt at the destination. If the supplier is obliged to install or assemble the goods, the risk shall not pass to TIS until the goods are put into operation.
(4) The supplier shall be obliged to take back free of charge and to collect and dispose of packaging material in a professional manner. Unless otherwise agreed, the packaging material used by the supplier must be procured and labelled in such a way that it can be disposed of in accordance with the applicable statutory provisions without additional expense.
6. transfer of ownership
(1) Ownership shall pass to TIS upon delivery of the goods to TIS (or to the recipient designated by TIS).
(2) The transfer of ownership of the goods to TIS shall take place unconditionally and without regard to the payment of the purchase price. All forms of extended or prolonged retention of title are excluded in any case, so that any retention of title declared valid by the supplier shall only apply until payment of the goods delivered to us and for these goods.
7. examination of defects and liability for defects
(1) TIS shall inspect the goods immediately after receipt of the delivery with regard to obvious defects, identity, missing quantities and recognizable transport damage.
(2) TIS shall be notified of any defect discovered upon delivery or later. In all cases, our notification of defects shall be deemed to be immediate and timely if it is received by the supplier within one month of delivery or performance or of discovery. TIS shall have no further obligations to inspect and report defects.
(3) The statutory provisions shall apply to TIS's rights in the event of defects of quality and title of the goods, unless otherwise provided for below. In particular, the supplier shall be liable for ensuring that the goods have the agreed quality, are free of material defects and defects of title and correspond to the latest state of the art. The product descriptions shall be deemed to be the agreement on the quality.
(4) If a defect becomes apparent within 6 months of delivery, it shall be assumed that the defect was already present at the time of delivery.
(5) TIS shall be entitled to demand that the supplier remedy the defect or deliver a new item, at TIS's discretion. This also applies to deliveries from abroad. The right to claim damages is expressly reserved.
(6) If the supplier does not fulfil his obligation to subsequent performance within the period set by TIS, TIS shall be entitled to remedy the defect itself or have it remedied by a third party. The supplier shall bear the costs of this rectification of defects.
(7) The supplier warrants that the distribution or marketing of the delivered goods does not violate or impair the rights of third parties, in particular industrial property rights, patents, trademarks, utility models, design patents, selective distribution ties etc. both in Germany and in our respective countries of distribution. The supplier shall immediately indemnify us against all claims of third parties who complain about infringements of rights of the aforementioned kind and shall reimburse us for expenses. In the event of legal disputes between the third parties and us, the supplier shall bear all costs associated with the legal clarification plus the costs incurred in advance (expert opinions, lawyers etc.).
(8) The warranty period shall be 36 months for claims for material defects and 60 months for claims for defects of title, unless longer limitation periods are stipulated by law. The warranty period of 36 months shall also apply to deliveries within the scope of subsequent performance due to liability for defects.
(9) All costs incurred by TIS as a result of a defective delivery, in particular transport, installation and removal, travel, labour and material costs, shall be borne by the supplier; this shall also apply if it turns out that there was actually no defect. Our liability for damages in the event of unjustified requests for rectification of defects shall remain unaffected. However, TIS shall only be liable if TIS has recognized or, due to gross negligence, has not recognized that there was no defect.
8. supplier recourse
(1) TIS shall be entitled without limitation to the legally determined rights of recourse within the chain of suppliers in addition to claims for defects. In particular, TIS shall be entitled to demand from the supplier exactly the type of subsequent performance that TIS owes to its customer in the individual case.
(2) Before TIS acknowledges or fulfils a claim for defects asserted by its customer, TIS shall notify the supplier and request a written statement of the facts of the case, giving a brief description of the facts. If the statement is not made within a reasonable period of time and/or if no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to TIS' customer; in this case, the supplier shall be responsible for providing proof to the contrary.
(3) TIS's claims arising from supplier recourse shall also apply if the goods have been further processed by TIS or a customer of TIS prior to their sale to a consumer, e.g. by installation in another product.
(4) Claims from supplier recourse shall become statute-barred at the earliest 2 months after the point in time at which TIS has fulfilled the claims of the customer; at the latest, however, 5 years after delivery of the goods to TIS.
9. product liability and liability insurance
(1) If the supplier is responsible for a product damage, he shall indemnify TIS from claims of third parties to the extent that the cause lies within his sphere of control and organisation and he himself is liable in the external relationship.
(2) Within the scope of his obligation to indemnify, the supplier shall reimburse all expenses resulting from or in connection with a claim by third parties including recall actions carried out by TIS. TIS shall inform the supplier of the content and scope of recall measures - to the extent possible and reasonable - and give the supplier the opportunity to comment. Further statutory claims shall remain unaffected.
(3) The supplier shall take out and maintain product liability insurance with a lump sum coverage of at least EUR 10 million per personal injury/property damage.
(4) In all other respects the statutory provisions shall apply.
10. provision of materials and tools
(1) Materials provided shall remain the property of TIS. The processing and transformation of materials provided shall be carried out for TIS. In the event of processing with other items not belonging to TIS, TIS shall acquire co-ownership of the new item in the ratio of the value of the TIS item to the other processed items at the time of processing. If a combination or mixture is made in such a way that the supplier's goods are to be regarded as the main item, it shall be deemed agreed that the supplier shall transfer co-ownership to TIS on a pro rata basis. The supplier shall hold the co-ownership in safekeeping for TIS. The supplier shall immediately inspect the materials provided for freedom from defects.
(2) Production resources such as models, samples, devices, etc., which TIS makes available to the supplier or which are manufactured by the supplier for TIS, shall remain our property or become the property of TIS; this shall also apply in the event of separate invoicing by the supplier. The supplier shall mark the aforementioned tools as the property of TIS and store them carefully. The costs of maintenance and repair shall be borne equally by the contracting parties. However, if these costs are due to defects in such items manufactured by the supplier or to improper use by the supplier, they shall be borne solely by the supplier.
(3) The Supplier shall be obliged to insure the aforementioned tools at his own expense against damage of any kind. The supplier hereby assigns to TIS all claims for compensation under the insurance policy and TIS hereby accepts the assignment.
(4) TIS shall be entitled to industrial property rights, in particular copyrights, to the extent that industrial property rights, in particular copyrights, exist for material provided and tools. TIS shall be entitled (including copyright) to all work results arising in connection with the manufacture of tools. These work results shall already now be assigned in full to TIS by the supplier without separate remuneration. TIS hereby accepts the assignment.
(5) Materials provided and tools may only be used for the purposes of the contract with TIS and may not be passed on to third parties without the prior written consent of TIS.
(1) The supplier shall be obliged to keep the terms and conditions of the order and all information and documents provided for this purpose (with the exception of publicly accessible information) secret. They may only be disclosed to third parties with prior written consent.
(2) The confidentiality obligation shall not expire until and to the extent that the knowledge contained in the documents provided has become generally known.
12. spare parts
(1) The supplier guarantees that for a period of at least 5 years after delivery, all individual parts required for the continuous use of the delivery item will be kept available for TIS.
(2) If the supplier intends to discontinue the production of spare parts, it shall notify TIS thereof immediately after the decision to discontinue has been made. Such decision must - subject to clause 1 - be made at least 12 months before production is discontinued.
13. import-export-duty clause
(1) The Supplier shall comply with all requirements of the applicable national and international customs and foreign trade law. The supplier shall notify TIS in writing of all information and data required for compliance with customs and foreign trade law in the case of export, import and re-export at the latest two weeks after the order and immediately in the case of changes.
(2) If the supplier breaches his obligation under clause 1, he shall bear all expenses and damages incurred by TIS as a result thereof unless the supplier is not responsible for the breach of duty.
14. product-related environmental protection and declaration obligations
(1) The deliveries must comply with the applicable European legal regulations, in particular the safety and environmental protection regulations such as Directive 2001/95/EC (product safety), EU Regulation No. 1907/2006 (REACH), Directive 2011/65/EU (RoHS) and the harmonized standards or parts of these standards, the references of which are published in the Official Journal of the European Union.
(2) In particular, no substances may be contained that are subject to legal restrictions/prohibitions or that have been identified as SVHC substances. Furthermore, the supplier assures that his deliveries comply with the current limit values of the RoHS Directive (2011/65/EU). This also applies to products that do not fall within the scope of the directive. The only exception to this are products that clearly cannot be part of electronic products from the TIS product range, such as packaging, office materials, office furniture, etc.
(3) If a product is subject to a material information obligation or makes use of exemptions for material restrictions, in particular falls under an exemption of Annex III or IV of the EU Directive 2011/65/EU (RoHS) or contains substances that are on the current candidate list in accordance with Article 59 (1) of Regulation (EC) No. 1907/2006 ("REACH"), the Supplier shall notify TIS of this at the time of the first delivery of the goods by means of a declaration via the following e-mail address: email@example.com
(4) In the procurement of electrical equipment, decisions shall not be made solely on the basis of monetary factors. In particular, energy efficiency is a co-deciding criterion. If the supplier can offer a comparable device with higher energy efficiency, this will be given preferential treatment in the procurement process.
15 Place of jurisdiction, applicable law, place of performance
(1) The place of jurisdiction for all legal disputes arising directly or indirectly from contractual relationships based on these Terms and Conditions of Purchase is Freiburg im Breisgau. TIS shall further be entitled to sue the supplier at the court of its registered office or branch or the place of performance at TIS's discretion.
(2) The law of the Federal Republic of Germany shall apply exclusively, excluding the conflict of laws and the UN Convention on Contracts for the International Sale of Goods (CISG).
(3) The place of performance for all obligations arising from the contractual relationship shall be TIS's registered office in Kirchzarten, unless otherwise specified.
Status: July 2018