§ 1 Validity
(1) The General Terms and Conditions of Purchase (GTCP) shall apply to all procurement transactions of MT Energy Service GmbH; hereinafter referred to as "MTES". The GPC shall only apply if the Supplier is an entrepreneur (§ 14 BGB [German Civil Code]), a legal entity under public law or a special fund under public law. They shall also apply to all future deliveries, services or offers to MTES, even if they are not separately agreed again.
(2) The GPC of MTES shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Supplier shall not become part of the contract, unless MTES has expressly agreed to their validity. Even if MTES refers to a letter that contains or refers to the terms and conditions of the Supplier or a third party, this does not constitute agreement with the validity of those terms and conditions. Individual agreements made with the Supplier in individual cases shall in any case take precedence over these GPC.
(3) The General Terms and Conditions (GTC) shall apply to deliveries and services of MTES.
§ 2 Orders and contracts
(1) Offers from the Supplier shall include the product designation, the requested quantities, prices and delivery deadlines or deviating delivery dates, as well as the place of delivery.
(2) An order placed by MTES shall only be deemed binding upon written submission (including fax). Verbal, telephone or e-mail orders require written confirmation from MTES (this is also possible by sending an official order PDF by e-mail). Notwithstanding the above, orders with a value of goods of up to € 1,000.00 that are transmitted electronically via the "Business Central" or "BC" merchandise management system are binding.
The supplier must point out obvious errors (e.g. spelling or calculation errors) and incompleteness of the order, including the order documents, for the purpose of correction or completion before acceptance; otherwise the contract shall be deemed not to have been concluded.
(3) The supplier is obliged to confirm the order in writing within a period of 4 working days. Deviating delivery dates shall be specifically indicated in the confirmation. Confirmations that deviate from the order or are delayed are deemed to be a new offer, which is also subject to these provisions and generally requires written acceptance by MTES. An exception to this is a change to the delivery date of up to 14 calendar days after the original delivery date, which is deemed to have been accepted if MTES does not object to the change in writing within a period of 2 working days after receipt. A change to other content shall be deemed to have been rejected if MTES does not confirm the change in writing within a period of 2 working days after receipt.
(4) MTES is entitled to change the time and place of delivery as well as the type of packaging at any time by written notification with a notice period of at least 14 calendar days before the agreed delivery date. The same applies to changes to product specifications, insofar as these can be implemented within the framework of the Supplier's normal production process without significant additional expense, whereby in these cases the notification period in accordance with the previous sentence is at least 14 calendar days. MTES shall reimburse the Supplier for any proven and reasonable additional costs incurred as a result of the change. If such changes result in delivery delays that cannot be avoided in the Supplier's normal production and business operations with reasonable efforts, the originally agreed delivery date shall be postponed accordingly.
The Supplier shall notify MTES in writing of the additional costs or delivery delays to be expected on the basis of a careful assessment in good time before the delivery date, but at least within 3 working days of receipt of the notification in accordance with sentence 1.
(5) MTES is entitled to terminate the contract at any time by written declaration stating the reason if MTES can no longer use the ordered products in its business operations due to circumstances occurring after conclusion of the contract. In this case, MTES shall reimburse the Supplier for the partial performance it has rendered.
§ 3 Special delivery items
(1) The Supplier shall enclose with the delivery the documentation which - insofar as contractually agreed - must comply with the directives on explosion protection (94/9/EC, ATEX), the Machinery Directive 2006/42/EC and the Ordinance on Industrial Safety and Health. In accordance with the contractual agreements, the documentation must be handed over in digital form as well as in paper form and, if necessary, in several languages.
(2) Insofar as a copyright to the documentation or parts thereof exists in favour of the Supplier, the Supplier hereby grants MTES an unlimited and perpetual right of use to the documentation or parts thereof without separate remuneration. This includes the authorisation to transfer the right of use to third parties in the event of a resale of the delivery items.
(3) In the case of the delivery of hardware or software, the Supplier is obliged to grant or procure an irrevocable, transferable and unrestricted right of use to MTES.
§ 4 Prices, terms of payment, invoice details
(1) The price stated in the order is binding.
(2) Unless otherwise agreed in writing, the price shall include delivery and transport to the dispatch address stated in the contract or the order, including packaging and the costs of transport insurance.
(3) If, according to the agreement made, the price does not include the packaging and the remuneration for the packaging - not only provided on loan - is not expressly determined, this is to be charged at the verifiable cost price. At the request of MTES, the Supplier must take back the packaging at its own expense.
(4) Unless otherwise agreed, MTES shall pay the purchase price within 14 days of delivery of the goods and receipt of the invoice with a 3% discount or within 30 days net. The receipt of the transfer order by the bank is sufficient for the timeliness of the payments owed by MTES.
(5) All order confirmations, delivery documents and invoices must state the MTES order number, the article number, delivery quantity and delivery address. If one or more of these details are missing and processing is delayed as a result in the normal course of business of MTES, the payment deadlines specified in paragraph 4 shall be extended by the period of the delay.
(6) In the event of default of payment, MTES shall owe default interest in the amount of five percentage points above the base interest rate in accordance with § 247 BGB.
(7) The Supplier shall only have a right of set-off or retention on the basis of legally established or undisputed counterclaims.
§ 5 Delivery time and delivery, transfer of risk, place of fulfilment
(1) The delivery time (delivery date or period) stated in the order is binding. Early deliveries are not permitted without the prior written consent of MTES.
(2) The Supplier must announce its delivery in good time in advance to the respective contact person on site specified on the order, ensure unloading and acceptance of the goods and inform itself about the conditions on site. Agreements deviating from the order require the written consent of the MTES Purchasing Department.
(3) The Supplier is obliged to inform MTES immediately in writing if circumstances occur or become recognisable that mean that the delivery time cannot be met. The Supplier shall take acceleration measures. This includes, among other things, the commissioning of third parties and the use of further or additional material, personnel or further production capacities. The supplier shall bear the additional costs incurred as a result.
(4) If the day on which the delivery is to be made at the latest can be determined on the basis of the contract, the Supplier shall be in default at the end of this day without the need for a reminder from MTES. (5) In the event of a delay in delivery, MTES shall be entitled to the statutory claims without restriction, including the right of cancellation and the claim for damages in lieu of performance after the fruitless expiry of a reasonable grace period.
(6) In the event of delays in delivery, MTES is entitled to demand a contractual penalty from the Supplier of 0.5% for each commenced week of delay in delivery, up to a maximum of 5% of the respective order value. The contractual penalty is to be offset against the damage caused by delay to be compensated by the Supplier.
(7) The Supplier is not authorised to make partial deliveries without the prior written consent of MTES.
(8) Even if despatch has been agreed, the risk shall only pass to MTES when the goods are handed over to MTES at the agreed destination. As soon as acceptance has been agreed or a contract for work has been concluded, acceptance shall be decisive for the transfer of risk.
§ 6 Securing ownership
(1) MTES reserves the right of ownership or copyright to orders placed by MTES, orders as well as drawings, illustrations, calculations, descriptions and other documents made available to the Supplier. The Supplier may not make them accessible to third parties, disclose them, use them itself or have them used or reproduced by third parties without the express consent of MTES. Upon request, the Supplier shall return these documents to MTES in full or destroy them if they are no longer required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Any copies made by the Supplier shall be destroyed in this case; the only exceptions to this are storage within the scope of statutory retention obligations and the storage of data for backup purposes within the scope of normal data backup.
(2) Tools, devices and models that MTES makes available to the Supplier shall remain the property of MTES; if they are manufactured for contractual purposes and charged separately to MTES by the Supplier, they shall become the property of MTES. The tools, devices and models are to be labelled by the Supplier as the property of MTES, stored carefully, protected against damage of any kind and only used for the purposes of the contract. Repair costs which are attributable to defects in such items manufactured by the Supplier or to improper use by the Supplier, its employees or other vicarious agents shall be borne solely by the Supplier. The supplier shall notify MTES immediately of any damage to these items that is not merely insignificant. Upon request, he is obliged to return these items to MTES in proper condition if they are no longer required by him for the fulfilment of the contracts concluded with MTES.
(3) Retentions of title of the Supplier shall only apply insofar as they relate to the payment obligation of MTES for the respective products to which the Supplier retains title. In particular, extended or prolonged reservations of title are not permitted.
(4) Any processing, mixing or combining of items provided by the Supplier shall be carried out on behalf of MTES. If, in the event of processing, mixing or combining with items of third parties, their right of ownership remains, MTES shall acquire co-ownership of the new item in the ratio of the value of the item provided to the other items.
§ 7 Warranty claims
(1) In the event of defects, MTES shall be entitled to the statutory claims without restriction. Notwithstanding § 438 Para. 1 No. 3 BGB, the general limitation period for claims for defects arising from a purchase contract is 36 months from the transfer of risk.
(2) The statutory provisions shall apply to the commercial inspection and complaint obligations with the following proviso: MTES's inspection obligation shall be limited to defects which become apparent during the incoming goods inspection under external examination including the delivery documents as well as during the quality control in the random sampling procedure (e.g. transport damage, incorrect and short delivery). If acceptance has been agreed, there is no obligation to inspect. Otherwise, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. MTES's obligation to give notice of defects discovered at a later date remains unaffected. In all cases, the complaint (notification of defects) by MTES shall be deemed to be immediate and timely if it is received by the Supplier within 14 days.
(3) If the Supplier does not fulfil its obligation to subsequent performance - at the discretion of MTES by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery) - within a reasonable period set by MTES, MTES may remedy the defect itself and demand reimbursement of the necessary expenses or a corresponding advance payment from the Supplier. If the subsequent fulfilment by the Supplier has failed or is unreasonable for MTES (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline need be set; the Supplier shall be informed immediately, if possible in advance.
(4) Notwithstanding § 442 para. 1 sentence 2 BGB, MTES shall also be entitled to warranty claims without restriction if MTES remained unaware of a defect upon conclusion of the contract as a result of gross negligence.
(5) MTES shall not waive warranty claims by accepting or approving submitted samples or specimens. The same applies if MTES makes payment despite defective delivery.
(6) Upon receipt of the written notification of defects (in writing or by e-mail) from MTES by the Supplier, the limitation period for warranty claims shall be suspended. In the event of replacement delivery and rectification of defects, the warranty period for replaced and repaired parts shall begin anew.
(7) The costs incurred by the Supplier for the purpose of inspection and rectification shall be borne by the Supplier even if it turns out that there was actually no defect. MTES's liability for damages in the event of unjustified requests to remedy defects shall remain unaffected; however, MTES shall only be liable in this respect if MTES has recognised or grossly negligently failed to recognise that there was no defect.
(8) If the Supplier's deliveries are defective, the Supplier shall maintain sufficient redundancies (the multiple availability of functionally identical technical resources) until MTES's claims for defects can no longer be asserted due to the statute of limitations.
§ 8 Supplier recourse
(1) MTES shall be entitled to the statutory rights of recourse within a supply chain without restriction in addition to the claims for defects. In particular, MTES shall be entitled to demand the type of subsequent fulfilment from the Supplier that MTES owes to its customer in the individual case.
(2) Before recognising or fulfilling a claim for defects asserted by its customer, MTES shall be obliged to notify the Supplier thereof and to request a written statement, briefly explaining the facts of the case. If the statement is not made within a reasonable period of time and if no amicable solution is reached, the claim for defects actually granted by MTES shall be deemed to be owed to the customer; in this case, the supplier shall be responsible for providing evidence to the contrary.
(3) The claims of MTES arising from supplier recourse shall also apply if the delivery item has been further processed by MTES or by a customer of MTES, e.g. by installation in another product, prior to its sale to a consumer.
§ 9 Product liability
(1) The Supplier shall be responsible for all claims asserted by third parties for personal injury or damage to property which are attributable to a defective product supplied by him and shall be obliged to indemnify MTES against any liability resulting therefrom. If MTES is obliged to carry out a recall action against third parties due to a defect in a product delivered by the Supplier, the Supplier shall bear all costs associated with the recall action.
(2) The Supplier is obliged to maintain product liability insurance at its own expense with an appropriate amount of cover - with regard to the foreseeable, typically occurring damage - which, unless otherwise agreed in individual cases, need not cover the recall risk or punitive or similar damages. The Supplier shall send MTES a copy of the liability policy at any time upon request.
§ 10 Industrial property rights
(1) The Supplier warrants that no third party industrial property rights are infringed in connection with its delivery in countries of the European Union, North America or other countries in which it manufactures the products or has them manufactured. The same applies to those countries to which MTES sells or delivers the delivery items according to the contract concluded with the Supplier.
(2) The Supplier shall be obliged to indemnify MTES against all claims asserted by third parties against MTES due to the infringement of industrial property rights referred to in paragraph 1 and to reimburse MTES for all necessary expenses in connection with such claims. This claim shall exist irrespective of any fault on the part of the Supplier.
§ 11 Confidentiality
(1) The Supplier is obliged to keep the conditions of the order and all information and documents provided for this purpose (with the exception of publicly accessible information) secret for a period of 5 years after conclusion of the contract and to use them only for the fulfilment of the order. Upon request, he shall return them to MTES or destroy them immediately after the completion of enquiries or the processing of orders.
(2) Without the prior written consent of MTES, the Supplier may not refer to the business relationship in advertising materials, brochures, the Internet etc., use protected trademarks of MTES and exhibit delivery items manufactured for MTES or advertise with the business relationship. (3) The Supplier shall obligate its subcontractors in accordance with this § 11.
§ 12 Assignment
(1) The Supplier is not authorised to assign its claims arising from the contractual relationship to third parties. This shall not apply insofar as monetary claims are concerned.
§ 13 Place of jurisdiction, applicable law, severability clause
(1) All legal relationships between MTES and the Supplier shall be governed by the law of the Federal Republic of Germany to the exclusion of all international and supranational (contractual) legal systems, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) The exclusive place of jurisdiction for all disputes arising from the legal relationship between MTES and the Supplier shall be Zeven. However, MTES is also entitled to bring an action at the Supplier's general place of jurisdiction.
(3) Should individual provisions of the contract with the Supplier, including these GTC, be or become invalid or contain a loophole, the remaining provisions shall remain unaffected. The parties undertake to replace the invalid provision with a legally permissible provision that comes closest to the economic purpose of the invalid provision or fills the gap.
MT Energy Service GmbH (MTES)
Ludwig-Elsbett-Str. 1
D-27404 Zeven