The MAGURA Purchasing Terms and Conditions are located on our Purchasing platform.
Clauses on the contractual formulation of partnership-based supply relationships
The contractual partners are free to enter into agreements in variance from these clauses
- Clauses for all contract types (section 1)
- Clauses and guidelines for series supply contracts, long-term contracts and call-off contracts (section 2)
- Clauses and guidelines for development contracts with and without series participation (section 3)
- Clauses for contracts with the trade (section 4)
- Clauses for contracts for the execution of Internet auctions (section 5).
TABLE OF CONTENTS
1. Clauses for all contracts and agreements
- General provisions (item 1.1 foll.)
- Prices, price changes and payment terms (item 1.5 foll.)
- Confidentiality (item 1.14.1 foll.)
- Drawings and descriptions (item 1.15)
- Samples and manufacturing equipment (item 1.16.1 foll.)
- Assignment of receivables (item 1.17)
- Group settlement of accounts (item 1.18)
- Force majeure (item 1.19)
- Industrial property rights (item 1.21.1 foll.)
- Material defects (item 1.22.1 foll.)
- Other claims, liability (item 1.23.1 foll.)
- Product damage and recalls (item 1.24.1 foll.)
- Partnership clause (item 1.25)
2. Clauses and guidelines for series supply contracts, long-term contracts and call-off contracts
- Pricing (item 2.1 foll.)
- Contract amendments (item 2.6 foll.)
- Information (item 2.11 foll.)
- Payment delays (item 2.13)
- Manufacturing equipment (item 2.14 foll.)
- Material defects (item 2.16 foll.)
3. Clauses and principles for development contracts (with and without series participation)
- Concept competition (item 3.1 foll.)
- Remuneration (item 3.3 foll.)
- Development results, inventions and industrial property rights (item 3.6.1 foll.)
- Liability for defects, other liability (item 3.13 foll.)
- Termination (item 3.18 foll.)
4. Clauses for contracts with the trade
- Fixed-date transactions (item 4.1)
- Illegal behaviour (item 4.2 foll.)
5. Clauses for contracts for the execution of Internet auctions
- Preparation of the purchasing auction (item 5.1 foll.)
- Execution and results of the purchasing auction (item 5.4 foll.)
- Sales auction (item 5.14)
6. Reservation of title
7. Place of performance and legal venue
1. Clauses for all contracts and agreements
1.1 Unless they are expressly described by the supplier as binding, the information and illustrations contained in leaflets and catalogues only provide approximations in accordance with industry custom and practice.
1.2 The contractual relationship is governed exclusively by German law. If both contractual partners are based in Germany, German is the contract language.
1.3 Changes in the agreed terms and conditions of business require prior approval by the other contractual partner and must take account of any shifts in the risks and costs.
1.4 If rights are granted in favour of third parties or third parties are otherwise involved in the contractual relationship, this must be approved by the other contractual partner in each individual case even if intercompany links between one of the contractual partners and the privileged third party are created, already exist or are changed. Approval may not be unreasonably withheld.
Prices, price changes and payment terms
1.5 If the supplier has undertaken to change or adjust the object of delivery or the manufacturing process in qualitative or quantitative terms or in terms of price, amortisation of these services through the delivery transaction or other reasonable remuneration of these services of the supplier is stipulated.
1.6 Provided that the products and processes remain the same, supply prices or payment terms agreed for the duration of the contract are not during the period of the contract placed in question for example by subsequent cost analyses by a contractual partner or offers from third parties.
1.7.1 Cost savings achieved by the supplier through the joint effort of the contractual partners only need to be passed on if this is expressly agreed. In this case, the cost savings are fully offset against any price reductions agreed in advance until this is fully covering by such offsetting. Cost savings above and beyond this are offset against the list prices to the extent that the customer has contributed to the costs saving.
1.7.2 The customer is entitled to inspect the supplier’s documents and data only to the extent that these documents and data relate directly to cost savings in the products affected by the savings.
1.8 Remuneration for significant services or services typical of the contract, against which there is no corresponding obligation on the contractual partner, may be refused or demanded back.
1.9 The contractual partners undertake that, unless appropriate remuneration arrangements are stipulated for the advance services carried out by the supplier, the remuneration or acceptance of the supplier’s service will not be made dependent on reservations by the customer or on factors outside the supplier’s control.
1.10 If the contract is terminated prematurely, the contractual partner who had reason to trust in continuance of the contract will be compensated for any advance services in this regard.
1.11 If the supplier has delivered partly defective goods, the customer is nevertheless obliged to make payment for the part which is indisputably free of defects unless part delivery is of no interest to the customer.
The customer may offset only legally enforceable or undisputed counterclaims.
1.12 In the case of payment default, the supplier is entitled to charge default interest at the rate charged by the banks for current-account credit but at least 8% above the base rate of the European Central Bank at the relevant time.
1.13 The contractual partners are agreed that, in the absence of trading practice to the contrary, component supplies from German production will be invoiced euros if both contractual partners are based in Germany.
1.14.1 If the other party describes them as confidential or has an evident interest in keeping them secret, all documents (including samples, models and data) and knowledge received by each contractual partner as a result of the business contractual partner will be used by it only for the jointly pursued purposes and kept secret from third parties with the same care as equivalent documents of its own.
This obligation starts on first receipt of the documents of the business relationship onward.
1.14.2 The obligation does not apply to documents and knowledge which are generally known or, when received, were already known to the contractual partner without an obligation of secrecy, or which thereafter are passed on by a third party which is entitled to divulge them or which are developed by the recipient contractual partner without using documents or knowledge which are subject to secrecy.
Drawings and descriptions
1.15 If one contractual partner makes available to the other contractual partner drawings or technical documents about the goods to be supplied and their manufacture, these remain the property of the contractual partner which makes them available.
Samples and manufacturing equipment
1.16.1 In the absence of an agreement to the contrary, the production costs for samples and manufacturing equipment (tools, models, moulds, patterns, etc.) are invoiced separately from the goods to be supplied. This also applies to manufacturing equipment which needs to be replaced as a result of wear and tear attributable to the order.
1.16.2 The costs for maintenance and proper safekeeping and the risk of damage to or destruction of the manufacturing equipment are borne by the supplier. The samples and manufacturing equipment must be handled and kept by the supplier with the same care as it customarily applies in its own affairs.
1.16.3 If the customer suspends or terminates collaboration during the period of preparation of samples or manufacturing material, the production costs necessarily incurred to date are borne by the customer. Further claims by the supplier are unaffected.
1.16.4 Even if the customer has paid for it, manufacturing equipment remains in the possession of the supplier at least until the supply contract has been carried out. The customer is thereafter entitled to demand surrender of the manufacturing equipment if transfer of title to the manufacturing equipment has been agreed and the customer has met its contractual obligations.
1.16.5 The manufacturing equipment is kept by the supplier without charge for three years after the last delivery to the customer. The supplier thereafter requests the customer in writing to give instructions with regard to its further use within six weeks. The supplier’s duty to keep the manufacturing equipment ends if no reply is received and no new order is placed within this six-week period.
1.16.6 Customer-related manufacturing equipment may be used by the supplier for component supplies to third parties only with the prior written consent of the customer.
1.16 The customer is aware that the samples and manufacturing equipment (tools, moulds, patterns, etc.) commissioned by it embody substantial development know-how of the supplier and that the supplier has a particular interest in keeping them secret. For this reason it is agreed that the customer has no right at any time to demand surrender of the samples and manufacturing equipment for any legal reason, even in the case of complete payment of the tool costs by the customer and/or through termination of the supply relationship. This does not affect the customer’s right to demand monetary compensation if the legal requirements are fulfilled.
Assignment of receivables
1.17 Without the prior written consent of the customer, which may not be unreasonably withheld, the supplier is not entitled to assign its receivables from the customer or arrange for them to be collected by third parties. This does not apply if extended retention of title exists.
If, contrary to clause 1, the supplier without the consent of the customer assigns its receivables from the customer to a third party, the assignment is nevertheless effective. The customer may however at its discretion then tender performance to the supplier or third parties with discharging effect.
Group settlement of accounts
1.18 In the absence of an agreement to the contrary, the contractual partners may settle payment claims by offsetting against claims due to an affiliated group company provided that the contractual partner is given a clear listing of such companies showing the current status at the relevant time.
1.19 Acts of God, labour disputes, unrest, official measures and other unforeseeable, unavoidable and serious events release the contractual partners from their performance duties for the duration of the disturbance and to the extent of its effect. This applies even if such events occur when the affected contractual partner is already in default unless the default is caused by it through wilful intent or gross negligence. As far as can reasonably be expected, the contractual partners are obliged to provide the necessary information to each other without delay and in good faith to adjust their obligations to reflect the changed circumstances. If the hindrance lasts longer than three months, each contractual partner is entitled to withdraw from the still uncompleted part of the contract.
Industrial property rights
1.21.1 The supplier is liable to ensure that, if its delivery is used in accordance with the contract, no rights of third parties are infringed in the country of the delivery location.
1.21.2 If a third party pursues claims against the customer in this regard, the supplier is in the case of fault on its side obliged to indemnify the customer against such claims; the customer is not entitled without the consent of the supplier to enter into any agreements with the third party or in particular to enter into a settlement.
1.21.3 The supplier has a corresponding indemnity claim against the customer to the extent that the goods supplied were produced by the supplier in accordance with the drawings, models or other specifications given by the customer and the supplier does not know or cannot be expected to know that this infringes industrial property rights of third parties.
1.21.4 The indemnity duty relates to all expenses which may possibly be incurred by the contractual partner as a result of or in connection with the claim by a third party.
1.22.1 The requisite qualities of the goods supplied are based exclusively on the agreed technical supply specifications.
If the supplier has to deliver in accordance with drawings, specifications, samples, etc. of the customer, the customer bears the risk of suitability for the intended purpose of use.
For the purpose of deciding whether the condition of the goods is in accordance with the contract, the time when the risk passes is decisive.
1.22.2 The supplier is not liable for material defects arising as the result of unsuitable or improper use, faulty installation or commissioning by the customer or third parties, for normal wear and tear or faulty or negligent treatment or for the consequences of improper modifications or repair work carried out by the customer or third parties without the consent of the supplier. This also applies to material defects which do not substantially reduce the value or usefulness of the goods.
1.22.3 In the absence of an agreement to the contrary, the time limit for claims relating to material defects is in accordance with the provisions of the law.
1.22.3 Claims for material defects are time-barred after twelve months unless a longer period is stipulated by mandatory force of law, particularly for recourse claims (§ 479 (1) BGB) with regard to defects in a building or in goods which are used for a building in accordance with their customary purpose and which cause its defectiveness. The statutory time limits also apply for the claims described under items 1.23.1 to 1.23.5.
1.22.4 Evident material defects must be reported by the customer in writing promptly after receipt of the goods at the stipulated destination, hidden material defects promptly after discovery of the material defect.
1.22.5 If final goods acceptance or examination of initial samples is agreed, complaints about material defects which the customer could have found in the course of careful acceptance procedures or examination of initial samples are excluded.
1.22.6 The supplier must be given an opportunity to check the material defect complained of. Goods subject to a complaint must be promptly returned on demand; the supplier pays the transportation costs if the complaint is justified. If the customer fails to meet these obligations or, without the consent of the supplier, carries out modifications to goods about which a complaint has already been made, it loses its rights to pursue claims for any material defects.
1.22.7 In the case of justified and orderly complaint about a defect within the time limit, the supplier will at its discretion repair the defective goods or supply a defect-free replacement.
1.22.8 If within a reasonable period the supplier fails to fulfil these obligations or to fulfil them in accordance with contract, the customer may stipulate in writing a final reasonable deadline by which the supplier must fulfil its obligations. On expiry of this period to no effect, the customer is entitled at its own discretion – without prejudice to any compensation claims in accordance with items 1.23.1 to 1.23.5 - to demand a reduction in the price, to withdraw from the contract or, at the expense of the supplier, to carry out the necessary repair itself or to arrange for it to be carried out by a third party.
Reimbursement of costs is excluded to the extent that expenses increase because the goods are taken to a different location after delivery unless this is in accordance with the stipulated use of the goods.
1.22.9 Legal recourse claims by the customer against the supplier exist at best to the extent that the supplier does not enter into any agreements with its clients beyond the statutory right to claim for defects. With regard to the extent of recourse claims, the final paragraph of item 1.22.8 applies accordingly.
Other claims, liability
1.23.1 In the absence of an agreement to the contrary below, other and more extensive claims of the customer against the supplier are excluded. This applies particularly to claims for compensation for damage or loss as the result of breach of contractual duties or tort. The supplier is therefore not liable for damage which does not arise in the delivered goods themselves. Above all it is not liable for loss of profit or other financial damage incurred by the customer.
1.23.2 The above restrictions of liability do not apply in the case of wilful intent or gross negligence by the legal representatives or executive employees or in the case of culpable infringement of material contractual duties. In the case of culpable infringement of material contractual duties, the supplier is - except in cases of wilful intent or gross negligence by the legal representatives or executive employees - liable only for damage typical of the contract and foreseeable by a reasonable person.
1.23.3 In addition, the restriction of liability does not apply in cases where liability exists in accordance with the Product Liability Law for personal injury or material damage to privately used objects in the case of defects in the goods delivered. Nor does it apply in the case of culpable damage to life, body or health and absence of a guaranteed quality.
1.23.4 To the extent that the liability of the supplier is excluded or restricted, this also applies to the personal liability of its salaried staff, hourly-paid workers, employees, legal representatives and assistants in performance.
1.23.5 The legal regulations on burden of proof are unaffected by the above.
Product damage and recalls
1.24.1 To the extent that the supplier is liable for product damage, it is obliged to indemnify the customer against third-party claims for compensation to the extent that the cause is within its area of control and organisation and it is itself liable in external relationships.
1.24.2 The contractual partners will - as far as possible and reasonably to be expected - inform each other in advance about the content and scope of recall measures and give each other an opportunity to comment.
1.25 In all compensation payments, particularly with regard to the amount of damages, reasonable account must be taken in particular of the economic circumstances of the contractual partners, the nature, extent and duration of the business association and the value of the goods.
2. Clauses and guidelines for series supply contracts, long-term contracts and call-off contracts
2.1 Different prices generally apply for series and replacement requirements. After series run-out and/or in the case of order quantities lower than originally agreed, prices are adjusted accordingly.
2.2 If the parties explicitly or implicitly agree special advance services which the supplier carries out in expectation of a delivery transaction, these services are amortised through the delivery transaction or other reasonable remuneration of these services of the supplier.
2.3 A price negotiated and agreed for a specific period can be changed only by means of an agreed price adjustment or within the parameters of a renegotiation clause.
2.4 A long-term contract which stipulates fixed prices should leave open the possibility of negotiations about a price adjustment in the case of unforeseen significant cost changes.
2.5 Both contractual partners will strive to achieve continuous quality improvements and cost reductions. In the case of price negotiations, cost reductions achieved in the meantime may be taken into account.
2.6 Open-ended contracts may be terminated with six months’ notice up to the end of a month.
2.7 To the extent that specification changes or additional requirements affect costs, the contractual partners will work towards appropriate price changes.
2.8 If in the case of long-term contracts (contracts with a period of more than twelve months and open-ended contracts) a substantial change in labour, material or energy costs arises, each contractual partner is entitled to demand an appropriate adjustment of the price in view of these factors.
2.9 If no binding order quantity is agreed, the supplier bases its price calculation on the non-binding order quantity (target quantity) expected by the customer for a specific period.
If the customer takes lees than the target quantity, the supplier is entitled to increase the price per unit accordingly. If the customer takes more than the target quantity, it is entitled to reduce the price per unit accordingly provided that it has announced the additional requirements at least two months before delivery.
2.10 In the case of supply contracts for call-off, binding quantities must in the absence of an agreement to the contrary be notified at least three months before the delivery date by means of a call-off. Additional costs incurred as the result of late call-off or subsequent call-off changes with regard to time or quantity by the customer are borne by the customer; the supplier’s cost calculation is decisive for this purpose.
2.11 The contractual partners will keep each other informed as comprehensively as possible, in particular about planning and decision processes in the concept phase and during series development.
2.12 Unexpected changes in the timing plan must be promptly notified to the contractual partner, if possible using electronic data exchange.
2.13 The contractual partners are in agreement that payment delays whose cause lies in the customer’s area of responsibility (eg complicated procedures, late release of parts) will be financially compensated for by the customer.
2.14 In the absence of an agreement to the contrary, the cost of customer-related manufacturing equipment (tools, models, moulds, patterns, etc.) procured by the supplier are payable as follows: one third on order placement, one third on presentation of the sample and one third on series release (at the latest however on series commencement).
2.15 Manufacturing equipment used to manufacture products for the customer may also be used by the supplier for its own production for the replacement market.
2.16 Items 1.22.1 to 1.22.9 apply.
2.17 With regard to the assessment and cost distribution of the customer’s expenses as the result of material defects, agreements are entered into which are oriented towards the actual costs incurred by the customer, which allow the supplier to carry out an appropriate examination of the reimbursements claimed by the customer, and which do not make it impossible or difficult for the supplier to fulfil its product observation duties. Cost items which by force of law are to be borne by the customer (eg costs of precautionary measures, sorting, testing and complaint notification) are not reimbursed.
2.18 The yardsticks described in item 2.17 and the other legal requirements must be observed even in the case of arrangements about flat-rate damages payable in the event of breach of contractual duties.
The contractual party must be given an opportunity to comment before deduction of flat-rate damages or a contractual penalty.
3. Clauses and principles for development contracts (with and without series participation)
3.1 In accordance with item 1.14, the supplier receives full protection of its know-how even during the course of the concept competition. The customer will itself use the supplier’s concept or divulge it to third parties only with the consent of the supplier.
3.2 Commissioning of subcontractors is the responsibility of the supplier.
3.3 The development costs are borne by the customer even if series participation by the supplier is agreed. This also applies to the costs of producing test tools, prototypes and samples.
3.4 In the absence of an agreement to the contrary, the parts price in the case of series participation by the supplier contains only the basic CAD services.
3.5 In the absence of an agreement to the contrary, remuneration for the costs described in item 3.3 must be paid at the latest when the supplier hands over the work results to the customer and the customer then issues the first sample release. The remuneration must take account of the extent to which inventions and/or industrial property rights and copyright pass to the other contractual partner.
Development results, inventions and industrial property rights
3.6.1 In the case of inventions by one contractual partner only, the rights to information and development results are attributable in each case to the contractual partner by whom they were developed.
3.6.2 Industrial property rights based on the above are attributable to the relevant contractual partner; it alone has a right of disposal.
3.6.3 Each contractual partner is entitled to use the information and development results of the other contractual partner for the development work.
3.6.4 The contractual partners must ensure that granting of industrial property rights is not jeopardised or hindered by procedures detrimental to innovation. The Industrial property rights which are important for the object of the contract will - as far as legally possible and reasonably to be expected - be established and maintained by the contractual partners.
3.7.1 In the case of joint inventions which cannot be registered separately for patent and/or industrial-design protection, the contractual partners will reach agreement about registration, processing and maintenance of industrial property rights from case to case.
3.7.2 Joint inventions and industrial property rights granted on them belong to both contractual partners. Each contractual partner is entitled to use them without paying remuneration to the other contractual partner.
3.7.3 Licences with regard to joint inventions or joint industrial property rights which have been granted on them are issued by the contractual partners only on a joint basis.
3.8 Documents and know-how of the other contractual partner and the development results according to item 1.14 will be treated confidentially by each contractual partner.
3.9 The contractual partners should inform each other about any infringement of order-related industrial property rights. The contractual partner which finds out about the infringement can instigate legal steps against the infringing party. Support in a judicial proceeding may take place only by mutual agreement.
3.10 For the duration of this agreement, no contractual partner can attack industrial property rights which are important to the other contractual partner for execution of this agreement.
3.11 If, for economic or technical reasons, the supplier is unable to fulfil its obligation of series supply, it will grant an unrestricted, non-exclusive, transferable licence to use the information and development results to the extent required for exploitation of the development results.
3.12 For purposes other than execution of this agreement, the knowledge acquired in the course of development work (know-how including any industrial property rights) may be used only by the contractual party to which they are due.
Liability for defects, other liability
3.13 The supplier undertakes liability for defects under performance owed in accordance with each individual contract. In the case of joint developments, this regulation also applies to the customer.
3.14 The customer is able to pursue defect claims with regard to the development results within twelve months from the date of release by its client where relevant, but at the latest within eighteen months from the first sample release by the customer.
The customer’s defect claims with regard to the products become time-barred twenty-four months after delivery to the customer. This does not apply if a longer period is stipulated by mandatory force of law, particularly in the case of defects in a building or products which are used for a building in accordance with their customary purpose and which cause its defectiveness.
3.15 Each contractual partner corrects at its own expense any defects in the development and/or test work carried out by it.
3.16 If a contractual partner refuses to carry out necessary correction work, the other contractual partner is, at the end of four weeks after receipt of the written demand for correction work, entitled to take substitute action through its own employees or third parties at the expense of the contractual partner.
3.17 With regard to the other liability of both contractual partners, items 1.23.1 to 1.23.5 apply accordingly.
3.18 If the development contract ends or is terminated prematurely, the justified interests of both contractual partners must also be taken into account in deciding when the contract is to end.
3.19 The contract may be terminated by the customer without prior notice and without stating reasons at any time up to the first sample release. In this event, it must pay the full development costs in accordance with item 3.3 and item 3.4; the supplier must however accept offsetting of the amount which it saves in costs through rescission of the contract or which it acquires – or wilfully fails to acquire - through other use of its working resources.
3.20 If the contract is prematurely terminated after first sample release, the customer must at all events pay the supplier at the end of the contract the remaining part of the development costs which has not yet been paid through the purchase price for deliveries (see item 3.4). Further claims of the contractual partners are unaffected.
3.21 The contractual partners’ right to terminate the contract without prior notice if there is good case is unaffected.
4. Clauses for contracts with the trade
4.1 Even if a delivery date in a specific calendar month is agreed, a fixed-date transaction within the meaning of § 376 (1) of the German Commercial Code/HGB is not constituted. This additionally requires agreement between the contractual partners that, for example in the case of seasonal goods or advertising campaigns, the contract automatically ends through rescission if the delivery date is not met and, if the supplier is at fault, compensation for damages as the result of non-performance can be demanded.
4.2 If any of the following forms of illegal behaviour exists, the contractual partners are entitled to this extent to refuse performance or claim restitution:
4.2.1 Offering, demanding or granting cash sums or other special payments such as entrance money, listing fees, participation in the cost of automation, investment or equipment grants on the occasion of new openings, grants towards administration costs, loans on terms other than market terms for the purpose of placement of first orders or the commencement or maintenance of business relationships if and to the extent that such special payments do not exclusively serve the purpose of covering special additional expenses incurred by the customer through the introduction or purchase of the relevant products. It is at all events illegal to link such special payments with the requirement that business relationships with other suppliers of or customers for comparable products are not established or are broken off.
4.2.2 Offering, demanding or granting a payment to the customer for shelf, window-display or other space rental. This does not apply to cases where in the marketing system the customer acts only as a representative or commission agent of the supplier (eg rack jobber system).
4.2.3 Offering, demanding or granting advertising cost contributions and/or other advertising payments for individual customers (eg joint advertising) without appropriate specific counter performance. Specific counter performance is constituted by special promotion of one supplier’s goods, eg through prominent placement on shelves, catalogues, order forms, newspaper advertisements, advertising spaces, window displays and other advertising media.
4.2.4 Demanding or providing employees of the supplier or its commercial agents without charge for participation in the business operations of the customer, particularly in sales or stock-taking. This does not include so-called propagandists of the supplier working in the customer’s business establishment, who are clearly identified as such and who offer or sell this supplier’s goods exclusively.
4.2.5 Unilateral subsequent stipulation or enforcement of contributions for non-achievement of specific sales figures. Negotiated contract amendments are not affected.
4.2.6 Unilateral subsequent stipulation or enforcement of more favourable contractual terms such as for example an increase in agreed sales-related refunds, granting of so-called “loyalty discounts” which are not contractually agreed, and granting of extra time for payment while maintaining the same cash discount rates. Negotiated contract amendments are not affected.
4.2.7 Unilateral subsequent stipulation or enforcement of price mark-ups, particularly so-called crisis and inflation mark-ups, and subsequent change-over to invoicing at daily prices. This also applies to price mark-downs. Negotiated contract amendments are unaffected.
4.2.8 Enticement to breach a commercial agency contract or deliberate exploitation of such a breach of contract in order wholly or partially to demand, offer or grant as a special payment the commission of the supplier’s commercial agent which is contained in the price.
4.2.9 Influence on commercial employees or their fellow employees as a result of the supplier organising competitions or trips or prize draws for them, providing display articles with a second use, or giving bonuses or other valuable benefits in order to obtain orders or preferential treatment of its products or to prevent or hinder the sale of other supplier’s products.
4.2.10 Demands by suppliers in terms of product-range selection, maintenance of stocks or presentation of goods as a condition for supply if this means that the customers’ freedom of action is unfairly restricted.
4.2.11 Misrepresentation with regard to the decisiveness of price or discount lists.
4.2.12 Increasing the spread of discounts in a manner which bears no relationship to order placement.
4.2.13 Restricting specific discount types exclusively to customers with a strong market position despite the fact that the performance or risks for which remuneration is paid are also undertaken by smaller customers.
4.2.14 Offering, demanding or granting discounts or payments which do not serve the purpose of remuneration of services actually performed but serve only to disguise price advantages.
4.2.15 Offering, demanding or granting a cash discount (remuneration for early payment) despite the fact that payment is not made within the agreed time before the due date.
4.2.16 Offering, demanding or granting payments for assumption of del credere functions if the actual benefit of an additional liability base is not necessary or if no special security of value exists through the assumption of del credere functions.
4.2.17 Demanding flat-rate cash sums in connection with unilateral organisational measures by one contractual partner (eg construction of a central warehouse, conversion to EDIFACT).
4.2.18 Creaming off cost savings achieved by the contractual partner if the savings were not achieved by the contractual partner making the demand.
4.2.19 Demanding disclosure of internal costs or cost structures if this is not in connection with agreed joint development of products.
5. Clauses for contracts for the execution of Internet auctions
Preparation of the purchasing auction
5.1 Before the start of an Internet auction (reverse auction which has an auction object in accordance with item 5.1.1) the customer must completely clarify the organisational, technical, commercial and legal conditions of participation and notify these to the supplier with adequate advance notice.
This applies even if the customer uses a service provider to carry out the auction.
5.1.1 Within the framework of the provisions of cartel law, the customer determines the suppliers which are to be invited to take part in the auction. They must in particular appear suitable to it in terms of capacity, quality, logistics and service so that goods to be purchased and/or the desired service including all ancillary services can be supplied by them as a contractual partner (object of the auction).
If weighting of the suppliers or the bids (eg through a plus or minus points system) takes place, this must also be notified to the suppliers.
5.1.2 In the invitation to participate in the auction, the customer must identify itself to the suppliers and inform them of any other companies for which it is purchasing the object of the auction.
5.1.3 The object of the auction must be clearly and completely described by the customer in advance, eg by means of drawings, so that the price and/or other named criteria can be decisive for acceptance of a bid in the auction.
5.1.4 The place and time and the quantity of the object of the auction must also be clearly specified.
This also applies for the other contractual terms, such as the customer’s payment terms and appropriate reasonable regulations about delivery default, payment default and liability for defects. German law should apply if both the customer and the supplier are based in Germany.
5.1.5 The technical and organisational conditions for participation in the auction and for the auction itself must be published in a clear and comprehensible manner. This regularly includes:
a) Registration of the supplier as a bidder with the customer and/or the service provider used
b) Registration of a decision-maker who is authorised to make binding bids on behalf of the supplier during the auction
c) Start and end of the auction
d) Possible circumstances under which the auction may be extended (eg bids made at the last minute) or discontinued (eg technical defect on the side of a bidder or the customer)
e) A clear indication if the auction is only a non-binding test auction
f) Hardware and software required by the supplier, including clarification of which party bears the costs
g) Possible costs and fees payable by the supplier to the customer and/or service provider for registration, participation, etc.
5.1.6 The customer must clearly state the results which it desires from the auction. In particular, it must be made clear whether the contract for the object of the auction is to be entered into with the best in the auction (automatically at the end of the auction or subsequently) or with a bidder who belongs to the “group of best bidders” which is to be defined, or can also be entered into with a supplier which has not taken parting the auction.
5.1.7 If the obligations described under items 5.1.2 to 5.1.6 are fulfilled by the customer through electronic business communication, it must give the supplier the opportunity of permanent storage.
5.1.8 The suppliers must be given sufficient opportunity to demonstrate their competitiveness and to clarify any questions with the customer and/or service provider, particularly about the object of the auction and about technical connection.
5.2 In the event of participation in the Internet auction, suppliers are not obliged in the future to take part in further auctions of the customer or handle their other business with the customer exclusively through an Internet platform.
5.3 The customer must ensure that confidential information and know-how of the supplier according to item 1.14 is protected in accordance with the latest status of technology even beyond the period of the auction. In particular, they may not be divulged by the customer to other bidders or third parties who do not take part in the auction.
Execution and results of the purchasing auction
5.4 The customer must ensure that only registered suppliers can make bids and not the customer itself or third parties interposed by it or affiliated to it.
Only suppliers which are ready and able to enter into the contract for the object of the auction may register as bidders for a particular auction.
5.5 During the auction the suppliers may make bids only through the agreed Internet address (link).
5.6 The customer or the service provider used must ensure that each bidder is promptly informed about the bid made by the highest bidder in each case, but not the name of any supplier who is bidding alongside.
5.7 The customer must provide technical means which enable the bidder to detect and correct input errors quickly.
5.8 For technical problems arising before or during the auction the customer must provide a hotline for suppliers.
5.9 The customer can exclude a bidder from the auction or refuse to accept its bid if the bidder does not adhere to the rules agreed for conduct of the auction.
5.10 At the end of the auction the customer must promptly inform all bidders that no further bids are permitted.
5.11 The customer must promptly inform the best bidder or – if agreed – the bidders belonging to the “group of best bidders” and instruct them about the further steps which will lead in the foreseeable future to exchange of a contract for the object of the auction.
5.12 In the absence of an agreement to the contrary, the bidder which has made the most favourably priced bid is entitled to exchange of the contract.
5.13 No subsequent negotiation because of a modification of the object of the auction or the auction terms and conditions will take place.
5.14 Items 5.1 to 5.13 apply in spirit if the object of the auction is being sold rather than purchased.
The seller is then in the position of the customer and the purchaser in the position of the supplier.
6. Reservation of title
We make deliveries solely on the basis of reservation of title as described in detail in the following. This also applies to all future deliveries, including in those cases in which this is not explicitly declared by us.
6.1. We retain title to all items which are delivered until all the claims arising from supply contract have been settled in full. We shall be entitled to repossess the purchased item if the purchaser acts in breach of contract.
6.2. The purchaser shall treat the purchased item with care until title to the item has passed to the purchaser. The purchaser shall, in particular, obtain value-as-new insurance cover for the item against theft, fire and water damage (note: only permissible for the sale of high-value goods). Any maintenance and inspection work which is required shall be performed in good time by the purchaser at its own cost. Until such time as title has passed to the purchaser, the purchaser shall notify us in writing without delay if the item which has been delivered is seized or interfered with in any other way by third parties. If the third party is not able to reimburse to us the court or out-of-court costs of an action brought under section 771 of the German Code of Civil Procedure (ZPO), the purchaser shall be liable for any losses we may incur.
6.3. The purchaser shall be authorised to re-sell the items subject to reservation of title as part of its ordinary business activities. The receivables due from the re-sale of the items subject to reservation of title shall be hereby assigned by the purchaser in an amount equal to the final invoice amount agreed with us (including value-added tax). This assignment shall apply regardless of whether the purchased item has or has not been processed prior to being re-sold. The purchaser shall be entitled to collect the receivables even after they have been assigned. Our power to collect the receivables ourselves shall remain unaffected. We do, however, undertake not to collect the receivables ourselves as long as the purchaser continues to meet its payment obligations from the proceeds, does not default on payment and, in particular, no application is made for the institution of insolvency proceedings or suspension of payments.
6.4. The working, processing or transformation of the purchased item by the purchaser shall in all cases be undertaken in the name and on behalf of the purchaser. In this case, the purchaser shall continue to be entitled to the remainder of the transformed item. If the purchased item is processed with items which do not belong to us, we shall acquire co-title to the new item based on the ratio of the objective value of the purchased goods to the other processed items at the time of such processing. This shall also apply if items are joined. If items are joined in such a way that the supplier’s items are regarded as the principle good, it shall be agreed that the supplier transfers proportionate co-title to us; the supplier shall store the exclusive property or jointly-held property on our behalf. In order to secure our claims against the purchaser, the purchaser shall also assign those receivables to us which have accrued to the purchaser from a third party as a result of the joining of item subject to reservation of title with real estate; we hereby accept this assignment.
7. Place of performance and legal venue
7.1 Unless otherwise agreed the place of performance and legal venue for deliveries and payments shall be Bad Urach.