seca gmbh & co. kg
GENERAL TERMS AND CONDITIONS OF PURCHASE
Goods or services are exclusively ordered on the basis of these general terms and conditions. For transactions with companies, these conditions are also deemed to be the content of contracts in subsequent orders – in particular if these are placed by telephone or via email – without any express renewed reference to them being required. Deviating conditions of a supplier which have not been expressly acknowledged by seca in writing shall not be binding on seca, including in cases where seca has not expressly objected to such deviating condition. The acceptance of goods or services does not constitute any acceptance of the supplier's conditions. All agreements are to be recorded in the written form. This also applies to ancillary agreements and assurances as well as to subsequent amendments to this agreement. An amendment of this clause as well as to all further requirements in respect to the written form shall likewise be made in writing.
1. Placing Orders
Orders, amendments and additions thereto or the release of orders shall only be binding if confirmed or placed by seca in writing. Requests to release orders may also be placed by long-distance data transmission.
If the contents of an order confirmation deviate from the contents of the order, the supplier shall expressly and separately refer to a deviating acceptance. In this case, a contract will only be concluded upon the written consent of seca.
The agreed prices are fixed prices. Unless otherwise agreed, they shall cover delivery "free" to the place of receipt as nominated by seca and shall further include standard / customary charges for packaging, carriage and warehousing. Regardless of the shipping method determined by seca, the supplier shall in each case bear incurring freight charges. The supplier shall be liable for any consequences arising due to the incorrectly issued bills of lading or (supplier’s) declarations. Any packaging shall become the property of seca.
3. Description of Materials
Reference or article numbers shall be allocated to seca's descriptions of materials. These are the basis of the orders and shall be notated / referenced on any and all batches delivered and any correspondence. Unclear descriptions of materials shall be discussed and agreed upon. In case of non fulfilment of seca’s requested description of materials, any and all costs incurred (return freight charges, processing etc.) shall be borne by the supplier.
a) The place of performance shall be the place of receipt as nominated by seca. Delivery will be at risk of the supplier.
Agreed delivery dates and periods are binding. Delivery periods shall commence on the date of the order.
The receipt of the goods at the nominated place of receipt shall be essential for compliance with the delivery period. In exceptional cases where the delivery is not “free” to the designated point of receipt, the supplier shall make the goods available in good time taking into account the usual times required for loading and shipping. The fixed delivery dates in the case of deliveries at call (release orders), shall be binding in the same manner as described, provided the supplier does not object within one week of the receipt of the delivery at call (release order) and provided seca fails to inform the supplier of the significance of the failure to object when a release order is placed.
In the case of a labour dispute conflict, in particular legal strikes, lock-outs and the occurrence of unforeseen events caused by international or domestic events or measures by the public authorities, events of force majeure such as fire, flooding, epidemics etc., seca shall be exempted from the timely and complete acceptance requirement for the duration of the disturbances, if such disturbances have been proven to exert a considerable influence on acceptance.
Excess deliveries not previously agreed to, shall entitle seca to reduce the invoice amount accordingly as well as to store or return the goods at the supplier's expense. As a minimum, the notice of dispatch of the goods, the shipping orders containing a precise list of the contents and the invoices shall be submitted in duplicate. Shipping orders shall be attached to the shipment.
b) Where goods are shipped “free” to the place of receipt nominated by seca, the supplier shall cover the cost of transport insurance.
c) If the supplier fails to make the delivery within the agreed period, the supplier shall be liable according to statutory provisions, unless otherwise provided below. After the fruitless expiration of an appropriate deadline, seca shall also be entitled to demand compensation instead of performance. If seca demands compensation, the supplier shall be entitled to prove that the supplier cannot be held responsible for the breach of duty. In case of the delay in delivery without fault and after the fruitless expiration of an appropriate deadline for performance, seca shall be entitled to withdraw from the contract.
seca shall be entitled to demand 0.5% of the total value of the order per week commenced as a contractual penalty, but no more than 10% of the total value of the order in the event the supplier is in default of delivery; this claim shall be set off against further claims for damages. The supplier shall be required to immediately notify seca of any expected delay in delivery or possible non-delivery in whole or in part, stating reasons and informing of the probable duration of the delay.
The supplier shall send a detailed shipping statement for every single shipment on the day of shipment; this shipping statement must be separate from the goods and the invoice. The shipping address shall completely correspond with the details specified in the order.
d) The supplier will have no reservation of title -in particular no reservation of title in relation to the delivered goods, until complete payment of all claims arising from all business relationships has been effected.
5. Customs Documentation, Certificates of Origin
a) The supplier will be required to give seca a written declaration concerning the customs-certified origin of the goods no later than two weeks before delivery. In accordance with the regulation (EC) No. 1207/2001, suppliers based in Germany or other EU member states are required to provide seca with a supplier's declaration for all goods that fulfil the Rules of Origin in the EU's preferential trade. A long-term suppliers' declaration (for an entire calendar year if possible) may be submitted for goods of preferential origin delivered regularly and over an extended period. The supplier shall immediately and without request notify seca of any change of origin. If requested, the supplier must provide seca with proof of its information on the origin of the goods by means of a customs-certified information sheet.
b) The supplier will be liable for all disadvantages and costs incurred by seca due to an improperly submitted or late suppliers' declaration unless it can prove that it is not responsible therefor.
c) On request, the supplier will be required to immediately obtain or make available to seca certificates of origin required for trade in the delivered goods.
6. Inspection Certificates
If required in the order, inspection certificates must be attached to the invoices in duplicate and a single copy must be attached to the goods. The certificates are to be signed by the manager of the inspection service authorised to supervise and accept production.
The payment period shall commence after receipt of the goods and receipt of the invoice as specified by the contract. Unless there is a special agreement, payment will be made within 14 days less 3% discount or within 30 days net.
The supplier may only assign its claim or have it collected by third parties with the prior written consent of seca. seca may refuse consent in the event of well-founded interest; for example, well-founded interest may be a currentaccount agreement with the supplier.
Payment does not constitute recognition of prices and conditions. The payment date will have no influence on the supplier's warranty or the right to lodge a complaint. In case of defective delivery, seca will be entitled to retain payment in the amount of the value of the defect until full and proper performance is provided.
8. Quality Assurance
The goods delivered must correspond to the applicable German and foreign statutory provisions, the relevant regulations and directives as well as the documents on which the order is based such as drawings, descriptions, samples, specifications etc. The supplier shall carry out a quality control suitable for the type and quantity of the goods delivered.
9. Inspection of Defects, Warranty
a) seca shall inspect the goods or services provided by the supplier for deviations from quality and quantity within a reasonable period and give notice of any defects immediately. Notice will be deemed to have been given in good time if it is given within one week. In the case of obvious deviations from quality and/or quantity, this period will begin when the goods/services are handed over at the point of receipt. In the case of hidden deviations from quality and/or quantity, this period will begin when they are discovered.
b) If defective goods are delivered, seca may choose to give the supplier the opportunity to remedy the defect or to supply a non-defective item (subsequent performance). If the supplier fails to carry out subsequent performance within the deadline period set by seca, seca may cancel the contract to this extent and return the goods at the risk of the supplier and obtain goods from elsewhere. Claims for a reduction in price, compensation or reimbursement of wasted expenses will remain unaffected.
In urgent cases, seca may, by agreement with the supplier and at the supplier's expense, carry out the subsequent improvements itself or have them carried out by a third party. In carrying out such work by seca, the hourly rate applicable at seca will be decisive.
If the same goods are repeatedly delivered in a defective condition, seca will, after sending the supplier a warning, also be entitled to withdraw from the contract with regard to the delivery owed, but not performed upon in the case of a further delivery of such defective goods.
If the supplier so requests, the supplier is to be immediately provided with the parts it is to replace at its expense.
The warranty shall end upon the expiry of the 24-month period following delivery to seca. With regard to the enforcement of the warranty claims, the supplier will waive the defence of expiry of the period for asserting warranty claims for 12 months after the warranty period.
In accordance with Section 478 of the German Civil Code (BGB), the supplier shall be liable to seca for warranty obligations to the extent to which third parties assert claims against seca for malperformance, provided the cases of malperformance fall within the sphere of responsibility of the supplier. Furthermore, on first demand, the supplier will also indemnify and hold harmless seca from warranty claims by third parties for manufacturer's liability, if the cause lies in the supplier's management or organisation. Upon seca’s first request, seca will also be indemnified and held harmless, from claims by third parties by the supplier in the case of damage claims, providing the supplier is responsible for malperformance or for the defect in the product. Upon seca’s first request, seca will also be indemnified and held harmless by the supplier in cases of liability, regardless of liability or fault as stated in the German Product Liability Act (ProdHaftG), if the cause lies in the fault of the supplier's management or organisation. The supplier will be required to maintain a suitable insurance policy for this indemnity.
Unless another provision on liability is agreed elsewhere in these terms and conditions, the supplier will be obliged as follows to reimburse seca for any damage incurred directly or indirectly by seca as a result of a faulty delivery, due to a breach of official safety regulations or arising from any other legal reasons attributable to the supplier.
a) Essentially, liability for damages will only be recognised if the supplier is responsible for damages it has caused.
b) If claims are asserted against seca due to liability regardless of fault on the basis of foreign law that allows no deviation from statutory provisions vis-à-vis third parties, the supplier will be responsible to seca as if it (the supplier) were directly liable.
The principles of Section 254 of the German Civil Code (BGB) will apply mutatis mutandis to compensation between seca and the supplier. This will also apply if a claim is asserted against the supplier directly.
c) Should seca intend to claim against the supplier in accordance with the aforementioned provision, seca will immediately and comprehensively inform and consult with the supplier. seca must give the supplier the opportunity to investigate the damage.
The parties to the contract shall consult on the measures to be taken, in particular in the case of settlement negotiations. seca will be entitled to conclude settlements with third parties which have suffered damages. The supplier's obligation to pay compensation will remain unaffected as long as such settlements are offered on a commercial basis.
d) Liability is excluded in so far as seca has effectively limited its liability to its customers.
e) The supplier will be liable for measures taken by seca to avert losses, e.g. product recalls, if these measures were caused by defects in the goods supplied.
11. Drawings, Samples, Tools
Drawings, samples, models, tools etc. will remain the property of seca and may only be used to carry out seca's orders.
Drawings, samples or tools etc. owned by seca shall be duplicated or used for deliveries to third parties by the supplier only with seca's written permission.
Following the completion of the order, copies made to carry out the order are to be returned to seca or destroyed, without any claims for compensation arising. Tools or moulds made wholly or partially at seca's expense will become seca's property as soon as they have been manufactured. The supplier is to mark them so that they are recognisable as seca's property. They are to be carefully stored, maintained and renewed at no cost to seca so that they can be used at any time. All seca's tools and equipment are to be stored safely and securely away from unauthorised third parties. In cases of imminent danger, the supplier is obliged to secure the tools and to inform seca immediately.
In cases of manufacturing problems on the part of the supplier, in particular in cases of long-term delivery delays, seca will be entitled to demand the handover, either wholly or in part, of moulds and similar that it (seca) has paid for, from the supplier free of charge.
If the supplier finds that the tools required to carry out the order are defective, with the result that proper production of the parts ordered by seca is not possible using this equipment, the supplier must inform seca of this immediately and consult with seca on the further course of action to be taken.
The supplier must, at its own expense, insure the tools and moulds etc. provided by seca against the usual risks, in particular against destruction or damage, in seca's favour on the basis of the replacement value of the loss incurred.
The tools and moulds etc. may only be scrapped with the consent of seca. If the supplier is an entrepreneur, it has, except in cases of undisputed or legally established counter-claims, no right of retention to the drawings, samples, models or tools etc.
12. Industrial Property Rights
a) The supplier will be liable in accordance with statutory provisions for ensuring that the product supplied and the contractual use of the product, do not infringe industrial property rights (in particular patent rights, registered design rights, industrial designs, trademarks or copyright) and corresponding applications for industrial property rights in the European Union or a member state of the European Union, Switzerland, Japan, China, USA, Russia, Mexico, Brazil and the United Arab Emirates.
b) The supplier shall indemnify and hold harmless seca and seca's customers from all claims by third parties, and will indemnify and hold harmless seca from claims by its customers in connection with the infringement of industrial property rights, unless the supplier is not responsible for the infringement of the industrial property rights.
c) The indemnity in
b) above will not apply if the supplier has manufactured the goods ordered according to drawings, models or other equivalent descriptions or information produced by seca, and if the infringement of the industrial property rights is based on these guidelines and the supplier does not know of this or if, in conjunction with the products developed by it, the supplier could not have known that industrial property rights would be infringed as a result.
d) The partners to the contract mutually undertake to inform each other immediately of any infringements of industrial property rights of which they have become aware in connection with the goods ordered, and to give the other respective party the opportunity to counter the claims of third parties.
e) Upon request by seca, the supplier will notify seca of the use of its own published and unpublished and licensed industrial property rights and applications for industrial property rights in relation to the goods ordered.
13. Use of Means of Production and Confidential Information of the Customer
All information, including models, sample tools etc. connected with the order made by seca and resulting from the course of business, may only be used to supply goods to third parties with the prior written consent of seca. They are to be treated with absolute confidentiality, including after the order has been carried out.
14. Ban on Corruption, Child Labour, Discrimination
a) The supplier undertakes to take all necessary and reasonable measures to avoid corruption.
The supplier therefore undertakes that it shall not, acting through employees, management body members or other third parties, offer, promise or grant to employees or managing directors of seca, including their family members, or offer, promise or grant through third parties in any other way, benefits or other advantages (such as e.g. money, monetary gifts or invitations which have no predominant operational need such as sports events, concerts, cultural events).
b) The supplier will observe working hours legislation and regulations applying at its production site. In no event should working hours be excessive according to the standards applying at the production site and sufficient breaks and leisure time should be provided.
c) The supplier will not permit the use of forced labour, debt bondage and other forms of compulsory labour.
d) The supplier will not permit the use of exploitative child labour. Within its area of control, it will endeavour by means of awareness programmes, training courses and regular performance evaluation, to prohibit exploitative child labour, including in the future. Programmes for the abolition of child labour and which promote the interests of children, are to be supported.
e) The supplier will undertake to avoid disadvantages for reasons of personal characteristics such as race, skin colour, gender, religion, political opinion, national or social origin or due to other characteristics protected by local legislation. It will protect all employees from harassment in the workplace, including sexual harassment.
f) The supplier is responsible for complying with all applicable legislation, regulations and rules.
g) In cases of a breach of the above obligations, seca is entitled to the extraordinary cancellation of the contract without notice.
15. Bans on the Use of Certain Chemical and Certain Other Hazardous Materials
a) The contractual partner is forbidden from using chemical substances for the goods to be supplied to seca which are unregistered or prohibited within the meaning of Regulation (EC) No. 1907/2006 of the European Parliament and the Council dated 18th December 2006 on the Registration, Evaluation, Authorisation and Restriction of Chemical
Substances (REACH). In particular, this applies both to the use of these substances as an integral part of the goods and to the use of substances unregistered or prohibited by the Regulation, which are used during the manufacturing process without actually becoming an integral part of the manufactured goods.
b) The contractual partner is also forbidden from using unregistered or prohibited hazardous substances for the goods to be supplied to seca within the meaning of Directive 2011/65/EC of the European Parliament and the Council dated 8th June 2011 on the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (RoHS). In particular, this applies both to their use as an integral part of the goods and to the use of substances unregistered or prohibited by the Directive during the manufacturing process without actually becoming an integral part of the manufactured goods.
c) The partner to the contract is further prohibited from using materials or chemical substances or compounds in the goods to be supplied to seca which are listed under www.seca.com/supplier-info. In particular, this applies to both their use as integral parts of the goods and to the use of the listed materials, chemical substances or compounds used during the manufacturing process without actually becoming an integral part of the manufactured goods.
16. General Provisions
a) If a partner to the contract ceases its payments or if insolvency proceedings are opened in respect of its assets or if composition proceedings are opened in court or out-ofcourt, the other party will be entitled to cancel its part of the contract relating to the unfulfilled part of the contract, if the other partner to the contract is not prepared to carry out its part of the contract concurrently in spite of being called on to do so or to provide collateral security.
b) Should any provision in these terms and conditions be or become invalid, this will not affect the validity of the remainder of these terms and conditions. A provision that comes closest to the commercial intention of the invalid provision will be deemed to have been agreed.
c) German law shall apply. The application of the UN Convention on the International Sale of Goods shall be excluded.
d) If the supplier is an entrepreneur, legal entity under German public law or a special fund under German public law, the place of jurisdiction for all disputes resulting from orders placed by seca will be Hamburg, Germany. If seca is a claimant, the supplier may also be sued at the location of its registered office.
Hamburg, September 2013
seca gmbh & co. kg