General conditions of purchase
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 on TIS, even if TIS does not expressly object to them. The terms and conditions of TIS shall also apply if TIS accepts the delivery without reservation in the knowledge of terms and conditions that are contrary to or deviate from its terms and conditions.
(2) All agreements made between TIS and the supplier in connection with the purchase contracts shall be 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 by dispatch and receipt of the goods without reservation.
(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 the offer of TIS within the time limit according to paragraph 1, these documents shall be returned to TIS without delay. After completion of the purchase contract, the documents shall be returned without being requested to do so.
(3) The supplier shall not be entitled to have the service performed 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 to destination (i.e. free of shipping costs) and include all packaging costs, unless otherwise agreed in writing. 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 commence when both the invoice and the goods have been received in full in accordance with the contract. Payment shall be made subject to invoice verification. TIS reserves the right to choose the means of payment. In case of defective delivery, TIS shall be entitled to withhold payment proportionally to the value until proper performance.
(4) If it has been agreed that TIS shall bear the shipping costs, the supplier shall choose the most cost-effective shipping route. TIS shall not bear additional costs for expedited transport which are necessary to meet the delivery date.
(5) In the event of default in payment, TIS shall owe default interest in the amount of five percentage points above the base interest rate. However, TIS shall not owe interest on the due date.
4. Delivery period and delay in delivery
(1) The delivery periods and dates stated in the order are binding. The receipt of the goods at the place of destination shall be decisive. The supplier shall be obliged to notify TIS immediately in writing of any possible failure to meet the delivery time.
(2) TIS may refuse to accept goods delivered before the delivery date specified in the order or partial or excess deliveries and may return the goods or store them with third parties at the supplier's expense and risk.
(3) If TIS is 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 claim a contractual penalty in the amount of 1% of the delivery value for each week commenced, but not more than 5%. TIS shall be entitled to claim the contractual penalty in addition to performance. Further claims 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 destination is not specified and nothing else has been agreed, the 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 center and requester. Furthermore, a dispatch note with the same content must be sent to TIS separately from the delivery. If the aforementioned information is missing, TIS shall not be responsible for delays in processing or payment.
(3) The transfer of risk shall take place upon delivery to the receiving point at the place of destination, unless otherwise agreed. 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 and properly collect and dispose of packaging material free of charge. Unless otherwise agreed, the packaging material used by the supplier must be of such a nature and marked that it can be disposed of without additional expense in accordance with the applicable statutory provisions.
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 be unconditional and without regard to the payment of the purchase price. In any case, all forms of extended or prolonged retention of title shall be excluded, so that any retention of title validly declared by the supplier shall only apply until and for payment of the goods delivered to us.
7. Inspection of defects and liability for defects
(1) Immediately upon receipt of the delivery, TIS shall inspect the goods with regard to obvious defects, identity, shortages and recognizable transport damage.
(2) Any defect discovered upon delivery or later shall be notified by TIS. In all cases, our notice of defects shall be deemed to be immediate and timely if it is received by the supplier within one month from delivery or performance or from discovery. TIS shall have no further obligations to inspect and notify.
(3) The statutory provisions shall apply to the rights of TIS in case of material defects and defects of title of the goods, unless otherwise stipulated 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 state of the art. The product descriptions shall be deemed to be an agreement on the quality.
(4) If a defect becomes apparent within 6 months after delivery, it shall be assumed that the defect was already present at the time of delivery.
(5) TIS shall be entitled to demand from the supplier, at the discretion of TIS, either the removal of the defect or the delivery of a new item. This shall also apply to deliveries from abroad. The right to claim damages is expressly reserved.
(6) If the supplier fails to meet its obligation to remedy the defect within the period set by TIS, TIS shall be entitled to remedy the defect itself or to have it remedied by a third party. The supplier shall bear the costs of such rectification of defects.
(7) The supplier warrants that the rights of third parties, in particular industrial property rights, patents, trademarks, utility models, design patents, selective distribution agreements, etc., both in Germany and in our respective countries of distribution, are not infringed or impaired by the distribution or marketing of the delivered goods. The supplier shall immediately indemnify us against all claims by third parties alleging infringements of rights of the aforementioned kind and shall reimburse us for expenses. If legal disputes arise 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 based on material defects and 60 months for claims based on 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 based on liability for defects.
(9) All costs incurred by TIS as a result of a defective delivery, in particular transport, installation and removal, travel, labor 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 an unjustified request to remedy a defect shall remain unaffected. However, TIS shall only be liable if TIS recognized or failed to recognize due to gross negligence that there was no defect.
8. Supplier recourse
(1) TIS shall be entitled without restriction to the legally determined rights of recourse within the supplier chain in addition to the claims for defects. In particular, TIS shall be entitled to demand exactly the type of subsequent performance from the supplier that TIS owes its customer in the individual case.
(2) Before TIS acknowledges or fulfills a claim for defects asserted by its customer, TIS shall notify the supplier and request a written statement, briefly stating the facts of the case. If the statement is not made within a reasonable period of time and/or no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to the customer of TIS; in this case, the supplier shall be responsible for proving the contrary.
(3) The claims of TIS arising from supplier recourse shall also apply if the goods have been further processed by TIS or a customer of TIS, e.g. by incorporation into another product, prior to their sale to a consumer.
(4) Claims arising from supplier's recourse shall become statute-barred at the earliest 2 months after TIS has fulfilled the customer's claims; 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 product damage, he shall indemnify TIS against claims of third parties to the extent that the cause lies within his sphere of control and organization and he himself is liable in relation to third parties.
(2) Within the scope of its indemnification obligation, the supplier shall reimburse all expenses arising from or in connection with a third party claim including recall actions carried out by TIS. TIS shall inform the supplier about the content and scope of recall measures - as far as possible and reasonable - and give him the opportunity to comment. Further legal 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) Material 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 the goods are combined or mixed 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 transfers co-ownership to TIS on a pro rata basis. The supplier shall keep the co-ownership for TIS. The supplier shall immediately inspect the goods provided to ensure that they are free of defects.
(2) Production tools such as models, samples, devices, etc., which TIS provides to the supplier or which are manufactured by the supplier for TIS, shall remain our property or shall become the property of TIS; this shall also apply in case of separate invoicing by the supplier. The aforementioned tools shall be identified by the supplier as the property of TIS and shall be carefully stored. The contracting parties shall each bear half of the costs of maintenance and repair. However, insofar as these costs are attributable to defects in such items manufactured by the supplier or to improper use on the part of the supplier, they shall be borne solely by the supplier.
(3) The supplier shall be obliged to insure the aforementioned tools against damage of any kind at its own expense. The supplier hereby assigns all claims for compensation from the insurance to TIS and TIS hereby accepts the assignment.
(4) Insofar as industrial property rights, in particular copyrights, exist in respect of material provided and tools, TIS shall be entitled to such rights. TIS shall be entitled to all work results (including copyright) arising in connection with the production of tools. These work results are already now fully assigned to TIS by the supplier without separate remuneration. TIS hereby accepts the assignment.
(5) Material 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 prior written consent of TIS.
(1) The supplier shall be obliged to keep the terms of the order as well as all information and documents made available 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 obligation to maintain secrecy shall expire only if and to the extent that the knowledge contained in the documents provided has become generally known.
12. Spare parts
(1) The supplier warrants that all individual parts required for the continuous use of the delivery item shall be kept available to TIS for a period of at least 5 years after delivery.
(2) If the supplier intends to discontinue the production of spare parts, he shall notify TIS thereof without undue delay after the decision to discontinue has been made. Subject to Clause 1, this decision must be made at least 12 months prior to the discontinuation of production.
13. Import-Export-Customs Clause
(1) The supplier shall comply with all requirements of 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 no later than two weeks after placing the order and without delay in the case of changes.
(2) If the supplier breaches its obligation under Clause 1, it shall bear all expenses and damages incurred by TIS as a result, unless the supplier is not responsible for the breach of obligation.
14. Product-related environmental protection and declaration obligations
(1) Deliveries must comply with the applicable European legal provisions, in particular the safety and environmental protection provisions 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 reference numbers of which are published in the Official Journal of the European Union.
(2) In particular, no substances may be contained which are subject to legal restrictions/prohibitions or have been identified as SVHC substances. Furthermore, the supplier assures to comply with the current limit values of the RoHS Directive (2011/65/EU) for his deliveries. This also applies to products that do not fall within the scope of the directive. The only exceptions to this are products that clearly cannot be components of electronic products from the TIS product range, for example packaging, office supplies, office furniture, etc.
(3) If a product is subject to a substance information obligation or makes use of exceptions to substance restrictions, in particular falls under an exception of Annex III or IV of the EU Directive 2011/65/EU (RoHS) or contains substances that are on the current candidate list pursuant to 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 email address: email@example.com.
(4) When procuring electrical equipment, decisions are not made solely on the basis of monetary factors. In particular, energy efficiency is a co-decisive criterion. If the supplier can offer a comparable device with higher energy efficiency, this will be given preference in the procurement.
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 shall be Freiburg im Breisgau. TIS shall further be entitled to sue the supplier at the court of its registered office or branch office or at the place of performance, at the discretion of TIS.
(2) The laws of the Federal Republic of Germany shall apply exclusively to the exclusion of 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 the registered office of TIS in Kirchzarten, unless otherwise specified.
Status: July 2018