General Terms and Conditions of Purchase of Cornelius Deutschland
GmbH and its affiliated companies
a) The general terms and conditions of purchase of Cornelius Deutschland GmbH
(hereinafter "Cornelius Deutschland GmbH" or "we"/ "us") shall apply exclusively.
Terms and conditions of the supplier, which are opposed to or supplementary or
otherwise deviate from our terms and conditions of purchase shall not apply, even if
we do not contradict their application in the specific case. The unconditional
acceptance or payment of a delivery shall not constitute an acceptance of opposed,
supplementary or otherwise deviating terms and conditions of the supplier.
b) Contractual agreements between us and the supplier shall be in writing. Legally
relevant, unilateral declarations and notifications of the supplier (e.g. setting of
a deadline, warning notice, revocation of contract) shall also require written form.
The amendment of the requirement of written form shall require written form
c) Our general terms and conditions of purchase shall only apply vis à vis suppliers,
who are entrepreneurs according to section 14 of the German Civil Code.
d) Our general terms and conditions of purchase shall also apply to all subsequent
transactions with the supplier, without us having to refer to them again in each
2. Offers/Orders, Documents
a) As far as our offers/orders do not explicitly contain a different binding period,
we shall be bound to our offers for a period of 14 days from the date of the offer.
The supplier's order acceptance must be received within the aforesaid timeframe.
Delivery calls in the context of an order and call schedule of a framework contract
shall become binding for the supplier if he does not reject the call within three
working days upon its receipt.
b) Offers made by the supplier shall be binding and free of charge unless expressly
agreed otherwise. This shall also apply to cost estimates. If not expressly agreed,
we shall not accept any costs incurred with visits, planning or any other advance
services provided by the supplier.
c) We reserve the ownership and copyright in all figures, drawings, calculations and
other documents which we provide to the supplier. They shall only be made available
to third parties with our prior written consent and shall only be used for the
purpose of processing our request/order. They must be returned immediately upon our
written request. Documents shall be returned to us immediately and provided data
shall be deleted, if the supplier does not accept our order within the timeframe
stipulated in section 2 a).
a) The supplier shall bear liability for the deliveries/services of his suppliers
like for his own deliveries/services as long as they are his vicarious agents. This
shall apply in particular if the supplier is obliged to produce the
b) The assignment of subcontractors by the supplier or the transfer of orders to a
third party is subject to our prior written consent and any breach of that provision
shall entitle us to revoke the contract or to terminate the contract without notice
and - in the event the supplier is responsible for this breach of duty - to claim
4. Delivery, default
a) The delivery dates and periods stated in our offers/orders shall be binding to the
supplier. If the delivery period is neither stated in the order nor otherwise agreed
upon, it shall be 2 weeks from the conclusion of the contract. In order for
deliveries to be in time, they must arrive at the receiving point indicated by us
within the respective delivery period (in case of contracts to produce a work the
work must be delivered within the delivery period at a state ready for acceptance).
Early deliveries shall be impermissibly. In case of an early delivery we reserve the
right to return the delivery at the supplier`s expense. If we do not return the
early delivery, the goods will be stored at the supplier´s expense and risk until
the agreed delivery date.
b) In the event of an expected delay the supplier shall promptly notify us in writing
stating the reasons of the delay and the estimated length of the delay. Our right to
revoke the contract or to claim damages shall remain unaffected.
c) In the event of default a contractual penalty in the amount of 0.5 % of the order
value shall accrue for each started week, but restricted to a maximum of 5 % of the
order value. We may claim the contractual penalty in addition to the fulfillment of
the contract and as a minimum compensation in accordance with the statutory
provisions. The right to claim further damages shall remain unaffected. If we accept
the delayed delivery, we shall claim the contractual penalty by the time of the
final payment at the latest. The contractual penalty shall be offset against our
d) The acceptance of a delayed delivery/service without reservation shall not in any
way constitute a waiver of our contractual and/or statutory claims due to the
delayed delivery/service. With regard to the contractual penalty the preceding
section c) shall apply.
e) We shall only accept partial deliveries provided that
these have been agreed on explicitly. In case of an agreed partial delivery, the
remaining quantity to be delivered must be specified by the supplier. In case of
excess deliveries exceeding a customary amount, we reserve the right to return the
excess goods at the expense of the supplier.
f) The supplier may only claim not having received essential documents from us
provided that he sent a written warning setting a deadline and that we did not send
the documents on time.
g) Subject to the condition that we informed the supplier of the intended use of the
deliveries/services or that the intended use is obvious to the supplier, the
supplier shall be obliged to immediately inform us in case the deliveries/services
are not suitable for such intended use.
h) The supplier is obliged to give us detailed notification in writing of any changes
in the quality of the ordered goods, in particular regarding the processed material
or the constructive design compared to previous deliveries/services of such goods.
Such changes are subject to our prior written consent. Without our prior consent to
the changes in quality the deliveries/services shall be deemed defective due to
these changes and we shall be entitled to claims for defects. We also reserve the
right to claim damages due to the failure to notify us of the changes.
5. Force majeure and other unforeseeable circumstances
a) Circumstances which were unforeseeable when placing the order but which lead to
the acceptance of the delivery/service being impossible to us, shall release us from
our obligation to accept for the period and to the extent of their effects in case
we are unable to prevent such circumstances by reasonable means.
b) Force majeure, being events like natural disasters, labour disputes, riots,
warlike or terroristic conflicts, shall release the affected party from its
performance obligation for the duration of the disturbance and to the extent of its
effect. The parties are to a reasonable extent obliged to immediately provide
necessary information to the other party and to adapt their obligations to the
change in circumstances in good faith.
c) We shall be completely or partially exempted from the obligation to accept the
ordered delivery/service and shall be entitled to revoke the contract to the extent
that, taking commercial aspects into account, the delivery/service is no longer
exploitable by us due to the delay caused by force majeure.
6. Shipping / passing of risk
a) Delivery shall be made to the place of destination as specified in the order. If
the place of destination is not specified in the order and not otherwise agreed,
delivery shall be made to our registered office at Carl-Leverkus-Straße 15, 40764
Langenfeld. The place of destination shall also be the place of performance
b) Direct deliveries to our customers are subject to our prior consent and have to be
effected in our name. We shall be notified of the shipment to a customer on the date
of the shipment.
c) Partial and remaining deliveries must be designated as such in the shipping
papers. Additional costs due to a partial delivery shall be borne by the supplier,
unless partial delivery had been agreed on.
d) Unless agreed otherwise, shipment within Germany is free of charge. Shipping and
packaging costs (including insurance costs), assembly and installation costs,
customs, fees, taxes and other tributes shall be borne by the supplier.
pricing ex works or ex warehouse, shipment shall be done at the lowest possible
cost, insofar as we have not requested a particular shipping method. General cargo
has to be delivered by Deutsche Bahn AG, unless delivered by the supplier`s own
vehicles. We reserve the right to issue routing orders. Additional costs caused by
the non-observance of shipping or packaging instructions or by a necessary express
delivery shall be borne by the supplier.
e) Delivery items have to be packed and shipped appropriately whereas at least the
statutory provisions of the Packaging Ordinance have to be observed. Dispatch notes,
delivery notes and invoices must specify our order and position number as well as
the article code respectively the account assignment.
f) The supplier shall submit all evidence (e.g. certificates of origin) necessary to
obtain customs and/or other reductions (e.g. discounts/bonuses for products labeled
"made in Germany"). If the origin of the goods deviates from the supplier`s
declaration, this must be specifically indicated on the delivery note and on the
invoice stating the country of origin.
g) The costs of insuring the goods, especially of transport insurances, will not be
borne by us. In case the German General Logistic Terms and Conditions (ADSp) apply,
we expressly relinquish liability insurance according to the ADSp. However, the
aforesaid shall not be understood as an instruction to the supplier to refrain from
taking out insurance.
h) The supplier shall be liable for all costs incurred by us due to his
non-compliance with the above provisions or due to improper or incorrect addressing
of the shipment.
i) Concerning deliveries involving installation and assembly or other work
performances, the supplier bears the risk until acceptance of the work; concerning
other deliveries the supplier bears the risk until the delivery arrived at the
receiving point indicated by us.
7. Invoices, prices and payment terms
a) The prices specified in our order are binding. All prices are to be understood
plus VAT if applicable.
b) Invoices are to be submitted in duplicate separately for each order. Invoices must
specify the order and position number as well as the article code respectively the
account assignment. The amount of VAT must be specified separately.
c) Unless agreed otherwise, payment shall be made within 14 days with 3% cash
discount, or within 30 days without deduction. The aforesaid payment period shall
start upon receipt of the complete delivery and an invoice. Insofar as the supplier
is required to provide test reports, quality proof documents, or other
documentation, the receipt of such documents shall be a prerequisite for the
completeness of the delivery. In any case the payment period shall not start before
the agreed delivery date. The payment is on time when our bank receives our payment
order within the payment period.
d) In case the delivery/service is defective and we are entitled to supplementary
performance, we have the right to refuse payment according to section 320 of the
German Civil Code. As long as we have the right to refuse performance, we shall not
be in default of payment.
e) Place of performance of payments shall be the registered office of Cornelius
f) Payments shall not constitute an acceptance of the deliveries/services as being
according to contract.
8. Liability for defects
a) The deliveries/services must have the agreed quality; in particular they must
comply with the requirements document and other requirements such as technical
standards and other provisions specified in the order as well as referenced product
descriptions. The deliveries/services must comply with the codes of practice, with
statutory and official safety regulations and environmental protection regulations
which are in effect in Germany or which already have been passed subject to a
b) The supplier shall be obliged to perform an extensive outgoing goods inspection as
part of his quality management. The supplier shall also be obligated to control the
quality of the products delivered by his supplier.
c) Section 377 of the German Commercial Code shall apply subject to the following:
Our duty to inspect according to section 377 of the German Civil Code shall be
limited to defects which become apparent upon visual check (including the delivery
documents) during our incoming goods inspection or during our sampling inspection to
control the quality of the delivered goods. We are entitled to perform the sampling
inspection according to German Industrial Standard DIN ISO 2859-1 and to refuse the
entire delivery and demand supplementary performance in case the number of defective
samples exceeds the stipulated limit. A notice of obvious defects shall be deemed to
be in time provided that the notice is received by the supplier within a period of
10 calendar days from the date of delivery. A notice given later than that can still
be deemed to be in time if, considering the circumstances, it was given without
undue delay. A notice of hidden defects shall be deemed to be in time provided that
the notice is received by the supplier within a period of 5 working days upon
detection of the defect. A notice given later than that can still be deemed to be in
time if, considering the circumstances, it was given without undue delay.
d) We shall be entitled to the statutory defect claims without restriction. By
approving a sample of the ordered goods we do not waive our warranty claims. In any
case we shall be entitled to claim supplementary performance, at our choice, either
by the rectification of defects or by the delivery of an item free of defects. The
right to claim damages, in particular damages instead of performance, is explicitly
e) If we incur additional costs due to the defective delivery/service, these costs
shall be borne by the supplier in the event the supplier is at fault or negligent
with regard to the defect.
f) After the expiry without result of a reasonable period specified by us for
supplemental performance, we are entitled to remedy the defect ourselves or have it
remedied by a third party and demand reimbursement of the necessary expenses or an
appropriate advance payment, unless the supplier rightly refuses supplemental
9. Limitation periods
a) The limitation period for material defects and defects of title shall be 3 years
from the passing of risk unless the limitation period stipulated by the law or our
contract is longer. In particular claims for supplementary performance and damages
and the reimbursement of futile expenses shall become statute barred after 3 years.
The expiry of the limitation period for defect claims shall be suspended upon
receipt of the notice of defect by the supplier until the supplier rejects our
claims or declares the defect as being remedied or refuses to continue negotiations
concerning our claims.
b) In the event the supplier fulfils his obligation to supplementary performance by
replacement delivery, the limitation period regarding the replacement goods shall
recommence upon their delivery unless the supplier explicitly and rightfully
declares that the replacement delivery solely is a gesture of goodwill or is done to
10. Spare parts supply
The supplier shall be obliged to keep spare parts for a period equivalent to the
anticipated life span of his delivery/service in stock, in any case for at least 5
years from the last delivery of that delivery item, and to sell them on reasonable
conditions. If the supplier ceases deliveries of spare parts following expiry of the
aforementioned period or if he ceases the delivery of the delivery item during this
period, the supplier must give us the opportunity to place a final order, or provide
us with the relevant manufacturing documents at no cost.
11. Product liability
a) The supplier shall be responsible for all claims made by third parties on the
grounds of personal injury or property damage which result from a defective product
delivered by him. The supplier shall be obliged to indemnify us from such claims on
first request. The supplier shall also be obliged to reimburse all costs incurred
with a product recall campaign we have to initiate due to the defective product. As
far as possible and reasonable, we shall inform the supplier of the content and
scope of the product recall campaign and shall give him the opportunity to comment.
b) For the duration of our contractual relationship the supplier shall be obliged to
maintain a product liability insurance covering at least a sum of € 5 Mio. for each
case of personal injury/property damage. In case we can claim greater damages, such
claim shall remain unaffected. At our request, the supplier shall be obliged to
provide a copy of the product liability insurance policy as well as evidence of
payment of the insurance rates.
12. Industrial/intellectual property rights and any other rights of
a) Subject to the following the supplier shall guarantee that the delivered goods do
not infringe on third party rights in the European Union or in any other country, in
which the supplier manufactures these products or has them manufactured, are
violated in connection with the supplier`s delivery.
b) The supplier shall be obliged to indemnify us from any claims asserted by a third
party due to an infringement of industrial property rights or other third party
rights, and to reimburse our expenses in connection with such claims, provided that
the claims result from a breach of duty of the supplier he is responsible for. We
shall notify the supplier immediately in the event of any claims being asserted.
13. Ownership of items provided by us
a) All models, samples, manufacturing facilities, tools, measuring and testing
equipment, supplied material, drawings, works standard sheets, printing templates
and the like provided by us, shall remain our property and shall only be used by the
supplier to fulfill our orders. As far as the supplier produces manufacturing
facilities and tools on our behalf, the supplier shall store such manufacturing
equipment at his own expense with the due care and diligence of a prudent business
person separately from other items in his possession, shall clearly label them as
our property and shall only use them to fulfill our orders. The costs for care,
maintenance and partial renewal of the manufacturing equipment, which have been
provided by us or manufactured on our behalf, shall be borne by the supplier. The
manufacturing equipment shall only be modified with our prior written consent. The
supplier shall be obliged to return the manufacturing equipment to us at any time
upon our request. During the performance of an order for which the manufacturing
equipment is required we shall however not assert our right to recover possession.
Upon our request, the supplier shall insure the manufacturing equipment belonging to
us against damage by fire, water and theft at his own expense, with the insured sum
being adequate to cover the reinstatement value. The supplier herewith assigns his
claim for compensation against the insurance company to us; we hereby accept the
assignment of such rights.
b) In case material provided by us is processed or transformed by the supplier, then
such activity shall be deemed to be performed on our behalf. In this respect we
shall be considered the manufacturer. In any case it is hereby agreed that the
supplier shall transfer ownership to us regarding the goods newly created in that
process. In the event material provided by us is processed with other material not
belonging to us, we acquire a co-ownership share in the newly created goods. Our
co-ownership share reflects the value ratio between our material (purchase price
plus value added tax) and the other material processed. In any case it is hereby
agreed that the supplier shall assign to us a co-ownership share regarding such
goods newly created in that process.
c) In case material provided by us is inseparably intermixed or mingled with other
material not belonging to us we acquire a co-ownership share in the newly created
goods. Our co-ownership share reflects the value ratio between our material
(purchase price plus value added tax) and the other material processed. If
intermixing or mingling takes place in such a manner that the material not provided
by us is deemed to be the main material, it is hereby agreed that the supplier shall
transfer co-ownership to us regarding the newly created goods on a pro rata basis.
The supplier shall keep the goods (co-)owned by us safe on our behalf.
d) Insofar as the value of our security rights exceeds the purchase price of all
unpaid goods to which title is retained by more then 20 percent, we shall be obliged
to release security at our discretion upon request of the supplier.
e) In the event the supplier uses items according to section 13 a) which were
provided by us unauthorized which means for purposes other than to fulfill our
orders, we shall, without prejudice to other rights, be entitled to revoke or
terminate the contract and, in the event the supplier is at fault or negligent, to
14. Non-disclosure/ prohibition of references
a) The supplier shall be obliged to keep all information provided by us, whether they
have been provided in writing or orally or embodied in the items/documents made
available to him, in strict confidence and to not disclose them to any third party
without our written consent. This obligation to maintain confidentiality shall
remain in force even after termination of the contract. The obligation shall cease
if and insofar the manufacturing knowledge included in the information disclosed has
become common knowledge.
b) Referring to our business relationship for advertising purposes is only permitted
with our express consent.
c) The supplier shall impose the obligations according to paragraphs a) and b) above
on his subcontractors as well
15. Assignments of claims/offset
a) The assignment of the supplier's claims to a third party is subject to our written
b) The supplier is only permitted to offset against claims which are undisputed
and/or have been confirmed by a legally binding court decision.
16. Extended possibility to offset
We shall be entitled to offset claims of Cornelius Deutschland GmbH or of affiliated
companies in the meaning of section 15 of the German Stock Corporation Act against
claims of the supplier.
17. Final provisions with respect to jurisdiction and applicable
a) The laws of the Federal Republic of Germany shall exclusively apply. The United
Nations Convention on Contracts for the International Sale of Goods shall not
b) The English translation of our general terms and conditions of purchase only
serves as a courtesy translation. With regard to the content and for the
interpretation of our general terms and conditions of purchase as well as in case of
discrepancies between the German and the English version thereof, the German version
c) The place of jurisdiction shall be at our choice either the registered office of
Cornelius Deutschland GmbH or the competent court at the supplier`s registered
d) We point out that personal data relating to the supplier will be stored by us
within the scope permitted by law.
e) The ineffectiveness of individual provisions of these general terms and conditions
of purchase shall not affect the effectiveness of the remaining provisions. In this
event, the parties undertake to replace the ineffective provision by a valid
provision that most closely approximates the economic intent of the ineffective