The following General Purchasing Conditions in its original version in German, and will be provided to the Supplier with the first order inquiry they receive from Bahmüller. If the supplier is based in a country other than Germany, the supplier is required to sign these terms and conditions and return them to us within the scope of the first transaction. The supplier can also view, store, and print out the current version of the terms and conditions on the website of Wilhelm Bahmüller Maschinenbau Präzisionswerkzeuge GmbH (hereinafter “Bahmüller” or “we/us”) at any time.
The purpose of these Purchasing Conditions is to establish the overall conditions that apply to a business relationship between the Parties. They apply in their current version to future contracts for the sale and/or delivery of movable goods and/or services, if the supplier is an entrepreneur as defined in Sec. 14 of the German Civil Code (BGB), a legal entity under public law, or a public-law special fund.
Sec. 1 – Scope of application; general provisions
(1) Terms and conditions of the Supplier that deviate from, conflict with, or supplement these terms and conditions are not binding for Bahmüller unless Bahmüller has expressly consented to their application in writing. This applies even if Bahmüller does not expressly reject the application of terms and conditions of the supplier or if Bahmüller accepts the supplier’s delivery without reservations. All individual written agreements concluded with the supplier in an individual case shall take precedence over these Purchasing Conditions.
(2) Legal declarations and notifications that the supplier provides to Bahmüller after the contract is concluded shall require the written form to be valid.
(3) Any references to statutory provisions are made for purposes of clarification only. Except where statutory provisions are directly amended or expressly ruled out in these Purchasing Conditions, the latter apply even without such clarification.
Sec. 2 – Entry into contract; language of the contract
(1) The Supplier is obligated to confirm the order in writing within a term of five (5) business days, or to carry out the order promptly and without reservation. Deliveries for which there is no written order
from Bahmüller shall not be accepted. If Bahmüller does not respond to an offer, request or other declaration from the supplier, this may not be considered approval, except for processes for which a deviation has been expressly agreed in writing and where Sec. 362 HGB (German Commercial Code) does not apply.
(2) Amended or delayed acceptance by the Supplier shall be considered a new offer, and shall always require acceptance by Bahmüller. The same applies for conditional acceptance of the Supplier, referring to additions, restrictions, or other changes to the content of the contract.
(3) The Supplier must promptly inform Bahmüller of obvious errors, such as typos and calculation errors, as well as of incomplete orders or missing order documents, so that Bahmüller can correct the order. If the Supplier does not fulfill this notification obligation, then the contract shall not be considered concluded.
(4) The language of the contract is German. The only language available to the Supplier for conclusion of the contract is the German language.
Sec. 3 – Delivery; allocation of risk; formal acceptance; delay or default in acceptance
(1) Unless otherwise agreed in the individual case, deliveries shall be made “free domicile” (DDP to the destination in accordance with INCOTERMS 2020) to the location indicated in the order. If the destination is not indicated and if not otherwise agreed, the delivery must be made to the headquarters of Bahmüller in Germany, 73655 Plüderhausen, Wilhelm-Bahmüller-Straße 34. The destination is also considered the place of performance. Unless otherwise stipulated, the supplier is entitled to determine the nature of the shipping, particularly with regard to the shipping company or companies, shipping route and manner of shipping, and packaging, as long as the Supplier uses appropriate due diligence.
(2) Partial deliveries by the Supplier are only allowed after written approval from Bahmüller.
(3) Statutory regulations apply to a default of acceptance by Bahmüller. However, the Supplier must offer its services to Bahmüller expressly if a specific or determinable calendar date has been agreed for an action or cooperation. If Bahmüller is in default of acceptance, the supplier may request reimbursement for its additional expenses in accordance with the law.
(4) The carrier must be notified with sufficient clarity upon delivery in accordance with Sec. 438 of the German Commercial Code (HGB) if there has been any loss of goods or outwardly noticeable damage to the goods or if the delivery time limit has been exceeded. Bahmüller will provide the Supplier with a copy of the notification.
(5) The Supplier is obligated to inform Bahmüller regarding any approval requirements affecting its goods in accordance with applicable German, European (EU), USA export, customs and foreign trade law, as well as in accordance with the export, customs and foreign trade law of the countries in which its goods originate as soon as possible in writing before the delivery date. The Supplier must provide the following information and data for this purpose:The export list number in accordance with Annex AL to the German Foreign Trade and Payments Ordinance or comparable list items from relevant export lists;
(6) The Supplier is obligated to inform Bahmüller promptly regarding any changes to the above information and data in written form. If the Supplier violates its obligations as outlined above, it shall bear all expenses and damages as well as other disadvantages (such as subsequent claims for foreign import duties, fees) incurred by Bahmüller in this respect. This does not apply if the Supplier is not responsible for the breach.
Sec. 4 – Delivery time; delay in delivery
(1) the delivery term indicated by Bahmüller in the order is binding for the Supplier.
(2) The Supplier is obligated to inform Bahmüller promptly and in writing if it becomes apparent that it will not be able to comply with the agreed delivery deadline, providing the reasons for this and the likely length of the delay. Partial deliveries are only allowed with prior written approval from Bahmüller.
(3) If the Supplier does not perform its services, or does not do so within the agreed delivery term, or if it is default, then the statutory regulations apply - in particular those regarding rescission and compensation for damages.
(4) The risk of accidental loss and deterioration of goods shall be transferred to Bahmüller upon handover at the place of performance. If acceptance has been agreed upon, it is decisive for the transfer of risk.
(5) The above ((1)-(4)) shall also apply in the following cases
supply shortages for which the supplier is not at fault,
This also applies to the extent that such circumstances occur for suppliers of the Supplier. Bahmüller shall be notified of any such obstacles without delay. In return, Bahmüller is obligated to supply all information and documents that are needed for the export or for the performance of the delivery and service.
(6) Furthermore, Bahmüller is entitled to terminate the contract with immediate effect to the extent that termination is required in order to comply with national and international legal provisions. In the event of such a termination on Bahmüller’s part, assertion of claims for damages or of other rights by the Supplier that are founded on the termination as such are excluded.
(7) Nothing herein shall affect the Supplier's statutory rights, particularly those that apply where the obligation to perform is excluded, for example, where it is impossible or unreasonable to perform and/or effect a cure.
(8) Bahmüller's claim to the delivery is only excluded if the Supplier provides upon request by Bahmüller full compensation for damages instead of the delivery. Accepting a late delivery shall not indicate a waiver of any claims for damages or contractual penalties.
Sec. 5 – Prices; payment terms
(1) The prices indicated in the order are decisive; these include packaging, but do not include the applicable VAT.
(2) Unless otherwise agreed in an individual case, the price indicated in the order includes all services and ancillary work, such as customs, import duties, transportation costs, and transportation and liability insurance.
(3) A single copy of the invoice must be sent to Bahmüller, and the invoice must include an invoice number, order number, quantity, price, and other information that can be used to classify the order. Invoices must be submitted separately from the deliveries of the goods. If deliveries are sent from areas outside of the EU customs territory, then a copy of the invoice or a pro forma invoice must be included with the delivery of goods.
(4) Payments shall be made in accordance with individually agreed payment conditions. In the case of bank transfers, payment is considered on time if Bahmüller's bank receives the transfer order before the end of the payment term; Bahmüller is not responsible for delays due to participating banks’ payment procedures. Payments shall always be conditional upon a review of the invoice.
(5) Bahmüller shall not owe any interest on maturity. The default interest shall be five (5) percentage points above the basic interest rate (of the European Central Bank). Statutory regulations apply to a delay by Bahmüller. In any case, however, the Supplier is obligated to send a written warning.
(6) Bahmüller is entitled to rights of offsetting and retention, and defense due to failure to fulfill contract as permitted by law. Bahmüller is, in particular, entitled to retain any payments which are due if Bahmüller is still entitled to claims against the supplier due to incomplete or defective deliveries.
(7) The Supplier shall only be entitled to rights of offsetting and retention on the basis of counter-claims which have been recognized by us or finally judged in a court of law and that are undisputed.
Sec. 6 – Retention of title
(1) The title must be passed at the latest upon handover of goods to Bahmüller, and must be unconditional and may not be dependent on payment of the price. However, if Bahmüller accepts an offer of transfer of title by the Supplier in an individual case which is conditional on payment of the purchase price, then the Supplier's retention of ownership shall cease to exist when the purchase price is paid for the delivered goods. Any request or extension of the retention of ownership by the Supplier is excluded.
(2) If goods provided by Bahmüller are processed, mixed with other goods, or combined with other goods by the Supplier, then this is done on behalf of Bahmüller. The parties agree that Bahmüller shall become the co-owner of products produced using objects provided by Bahmüller based on the ratio of the value of goods provided to the value of the overall product; such ownership shall be held on behalf of Bahmüller until the time of handover by the Supplier.
(3) Bahmüller is entitled to sell the goods to others in the course of its normal business activities, even if it has obtained only conditional ownership and if Bahmüller has not fulfilled all of its payment obligations. However, Bahmüller is not permitted to pledge the goods subject to retention of title or to transfer title thereto by way of security.
Sec. 7 – Defects
(1) Statutory regulations apply to the rights of Bahmüller for material and legal defects in the goods and to other breaches of duty by the Supplier, unless otherwise specified in the following.
(2) The Supplier must ensure that goods have the agreed characteristics when the risk is transferred to Bahmüller. Product descriptions that are the object of the respective agreement or are included in the agreement in the same manner as these Purchasing Conditions are considered agreements on characteristics – and are included in particular, but not exclusively through descriptions or references in Bahmüller's orders. It makes no difference whether the product description was added by Bahmüller or the supplier.
(3) In deviation from Sec. 442 para. 1 clause 2 BGB (German Civil Code), Bahmüller is entitled to claims for damages without restriction even if Bähmuller was unaware of the defect when the contract was concluded due to gross negligence.
(4) The statutory provisions of Sections 377, 381 HGB apply to commercial inspection and notification of defect obligations, with the following conditions: Bahmüller's inspection obligations are restricted to defects that are obvious and apparent during an incoming goods control and external inspection, including the delivery documents, and during random quality controlling, such as transportation damage, incorrect deliveries, or failure to deliver the agreed quantity. If an acceptance is agreed, there is no inspection obligation. Furthermore, the inspection must be feasible in the normal course of business, in consideration of the circumstances in the individual case. The duty to give notice of defects discovered later on shall remain unaffected. In all cases, a notice of defects from Bahmüller shall be considered prompt and timely if it is received by the supplier within 15 business days.
(5) Costs incurred by the supplier for inspections and corrections (including any costs for removal or installation) shall be borne by the Supplier, even if it becomes clear that there were no actual defects. Bahmüller's liability for damage compensation in case of unjustified requests to correct defects remains unaffected; in this respect, Bahmüller is only liable if we were aware, or were grossly negligent in not being aware, that there were no defects.
(6) If the Supplier does not fulfill its obligation to provide supplementary performance – either by correcting the defect or by delivering goods free from defects, at Bahmüller's discretion – within an appropriate time period set by Bahmüller, then Bahmüller may correct the defect itself and may request reimbursement from the Supplier for any expenses required, or may request an advance payment for this purpose. If the Supplier fails to provide supplementary performance, or if this would be unreasonable for Bahmüller (for instance due to the urgency of the case, if operational readiness is endangered, or if there are impending, unreasonable damages), then no time period needs to be set; Bahmüller will inform the Supplier of such circumstances promptly, and in advance if possible.
(7) If the Supplier fulfills its supplementary performance obligation by making a replacement delivery, then the limitation period for the goods delivered as a replacement shall begin anew upon delivery, unless the Supplier has expressly reserved the right to make the replacement delivery only on goodwill as part of supplementary performance, in order to avoid disputes or in the interest of continuing its delivery relationship.
(8) If Bahmüller legitimately returns goods marked with the Bahmüller trademark, or does not accept them, then the Supplier must destroy these products and may not sell them to third parties. A contractual penalty of double the value of the goods is agreed and applies for each infringement – excluding the defense of the continuation of an offense – at least 15,000 EUR.
(9) Bahmüller shall be entitled to statutory recourse claims within the supply chain, in addition to claims for damages. Bahmüller in particular is entitled to demand exactly the type of supplementary performance (reworking or replacement delivery) from suppliers as Bahmüller owes our purchasers in the individual instance.
(10) Before Bahmüller admit or fulfills a claim for defects asserted by its purchaser, Bahmüller shall inform the Supplier and request a written statement with a brief description of the matter in question. If the statement is not provided within a reasonable period of five (5) business days, and if the parties are not able to come to a mutually agreed solution, then the defect claim actually granted by Bahmüller shall be considered owed by the purchaser; the supplier is required to prove otherwise in this case.
(11) Claims of Bahmüller described above shall also apply if the goods are or have been processed further by Bahmüller or a customer of Bahmüller before their sale to a consumer, for instance by installation.
Sec. 8 – Liability
(1) If a product liability claim is made against Bahmüller, the Supplier is obligated to release Bahmüller from such claims if the damages were caused by a fault in the goods delivered by the supplier. However, this shall only apply to cases of liability that are dependent on culpability if the supplier was liable. If the cause of the damages was within the supplier's scope of responsibility, then it must prove that it was not culpable.
(2) As part of its release obligation, the supplier shall be responsible for all costs and expenses resulting from or in conjunction with third party claims, including recalls carried out by Bahmüller. Before carrying out a recall, Bahmüller shall inform the Supplier, give the Supplier sufficient opportunity to participate in the recall, and discuss how to handle the recall efficiently with the Supplier; this is not required if informing the supplier or participation by the supplier would not be possible because of the urgency of the case in question.
(3) Furthermore, the Supplier shall also be liable for damages Bahmüller incurs by taking appropriate precautions to protect against claims due to non-contractual liability, if these were primarily caused by the Supplier.
(4) Further statutory claims shall remain unaffected.
(5) The Supplier must always maintain sufficient product liability insurance during its contractual relationship with Bahmüller at its own cost. The Supplier must provide proof of product liability insurance to Bahmüller upon request.
Sec. 9 – Limitation of claims
(1) Unless otherwise regulated in the following provisions of this clause, claims shall be time barred in accordance with the law.
(2) In deviation from Sec. 438 para. 1 no. 3 BGB, the general limitation period for defect claims shall be three (3) years from the transfer of risk. The 3-year limitation period also applies accordingly to claims for legal defects, whereby the statutory limitation period for third party claims for return in rem (Sec. 438 para. 1 no. 1 BGB) shall remain unaffected; claims for legal defects shall furthermore never expire as long as the third parties can still assert their rights against Bahmüller, in particular if these are not time barred.
(3) Limitation periods under commercial law, including the above extensions, shall apply to all contractual defect claims as determined by law. If Bahmüller is entitled to extra-contractual claims for damages due to a defect as well, the regular statutory limitation terms shall apply (Sections 195, 199 BGB), unless the application of limitation periods under commercial law in the individual case would result in a longer limitation period.
Sec. 10 – Ensuring property rights and conformity with legal regulations
(1) The Supplier shall initially retain ownership and all intellectual property rights and copyrights to designs, samples, images, photographs, technical documents, cost estimates or offers. Bahmüller is not permitted to use the designs, etc., except in the manner agreed with the Supplier.
(2) The Supplier is obligated to comply with accepted engineering standards (in particular DIN standards, VDE provisions, VDE directives, DVGW regulations) and statutory regulations on product safety (in particular the Product safety act), applicable international minimum labor law standards, in particular all conventions of the International Labor Organization (“ILO”) regarding employee rights, work hours and occupational protection, as well as all applicable statutory and official regulations.
(3) The Supplier shall neither actively nor passively, neither directly nor indirectly, take part in any form of fraud or corruption, any violation of human rights, any discrimination against its employees, or any forced labor or child labor. The supplier hereby undertakes not to hire any employees that cannot prove they are at least the minimum age of 15 years in this respect. The minimum age may be reduced to 14 in countries where ILO convention 138 applies under the exception for developing countries.
(4) The Supplier must ensure that all agents engaged by it in any manner in manufacturing products it delivers to Bahmüller comply with the obligations listed in the above paragraphs.
(5) If hazardous materials falling under the German Hazardous Materials Act, or products that can release such materials during use, may be included in the deliveries, then the Supplier must provide all data required to prepare a safety data sheet to Bahmüller or to the service provider commissioned by Bahmüller, without requiring a request to do so.
(6) If the Supplier violates one of the above obligations, the supplier must release Bahmüller and companies affiliated with Bahmüller, as well as their customers, from all costs, third party claims (in particular direct or indirect claims for damages) and all other disadvantages (such as fees) resulting from breach of the above provision. This does not apply if the Supplier is not responsible for this infringement. Furthermore, Bahmüller is entitled to cancel relevant orders immediately at any time, and to deny acceptance of such deliveries without incurring any costs for doing so. Any claims for damages shall remain unaffected. A cancellation or denial of acceptance shall not be considered a waiver of claims for damages.
Sec. 11 – Data protection
Bahmüller warrants that the applicable provisions of data protection and privacy law will be observed with regard to the personal data of the supplier and/or its vicarious agents that is collected, processed, and/or used within the scope of the contractual relationship. For further information, please see the Bahmüller data protection declaration. The same applies to the Supplier. The
Supplier must keep all non-public information received from Bahmüller during the course of the business relationship secret from third parties.
Sec. 12 – Final provisions
(1) The parties agree with regard to all legal relationships arising out of and in connection with this contractual relationship that German law applies, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and international uniform law.
(2) The place of performance is the location of Bahmüller, in Plüderhausen, postal code 73655 in Germany.
(3) Requirements and effects of the retention of ownership shall be subject to the law of the location of the goods, unless the choice of German law is not permitted or is invalid under the regulations of national law.
(3) If the supplier is a as defined in the German Commercial Code (HGB), a legal entity under public law, or a public-law special fund, the exclusive place of jurisdiction for all disputes arising directly or indirectly out of the contractual relationship is the location of Bahmüller in Plüderhausen, postal code 73655. However, Bahmüller is also entitled to file a legal action at the place of performance for the delivery obligation.
Version number: Ä00 08/20 Last updated: Plüderhausen, August 1st 2020