Hako GmbH
(as of: September 2022)
1. General
1.1 All purchase orders placed shall be subject to these Terms and Conditions of Procurement. Terms and conditions of sale or delivery referred to in the Supplier’s offers, order confirmations or other declarations shall not become part of the contract even if we do not expressly reject them. The acceptance of goods and services without reservation or qualification shall not be construed as constituting any acceptance of the Supplier’s terms and conditions of delivery. 1.2 Acceptance and execution of our purchase order shall be deemed to constitute acceptance of our terms and conditions. It the Supplier wishes to reject any individual terms or conditions below, this shall be done expressly in writing.
2. Conclusion of contract
2.1 Our purchase orders shall only be binding when placed by us in writing or when confirmed by us in writing, indicating the purchase order number, after placement of an order by telephone.
2.2 If the Supplier does not accept our purchase order in writing without delay – not later than 10 working days after receipt – we shall be entitled to cancel our order.
2.3 The Supplier shall be obliged to indicate our purchase order number on all correspondence, on invoices and on the shipping documents.
2.4 We may request changes to the goods or services to be delivered even after conclusion of the contract, provided that such changes are reasonable for the Supplier. Reasonable consideration shall be given to the effects of the contract change for both parties, in particular with regard to any additional or reduced costs and to the delivery dates.
2.5 The parties to the contract shall be obliged to treat the conclusion of the contract as confidential and to treat all commercial and technical details which are not in the public domain as business secrets. Sub-suppliers shall be obliged accordingly. Reference to the joint business relationship in advertising materials may only be made with our consent. For each culpable breach of the confidentiality obligation described above, we shall be entitled to demand an appropriate contractual penalty determined by us at our reasonable discretion, which shall be subject to review by the competent court in the event of dispute. 2.6 The following definitions of terms shall apply:
a) Quantity contract: Scope of supply based on an agreed quantity that shall be called off/fulfilled under individual purchase orders (purchase order no. 46...).
b) Value contract: Scope of supply based on an agreed order value that shall be called off under individual purchase orders (purchase order no. 46...).
c) Delivery schedule: Quantity contract or value contract that shall be called off/fulfilled by means of delivery schedule notices (purchase order no. 55...). d) Purchase order: Individual purchase order not covered by cases a), b) or c).
3. Prices, payment terms, invoices
3.1 The agreed prices shall be in Euro, exclusive of VAT, and are fixed prices which exclude subsequent claims of any kind. Costs for packaging, freight and transport shall be included in the prices, unless separate payment has been expressly agreed in writing.
3.2 Delivery shall be made on the basis of previously agreed prices. If these are unknown or not finally fixed when the order is placed, they shall be stated in the order confirmation. We reserve the right of final agreement.
3.3 Invoices shall be submitted in one copy. All details of the purchase order must be included in the invoice and delivery note; we shall not be responsible for any delays resulting from non-compliance with this obligation.
3.4 Payment shall be made either on the 15th of the month following delivery with a 3 % discount, at the end of the month following delivery with a 2 % discount or net three months after the end of the month of delivery. Terms of payment deviating from this shall require written agreement.
Our obligation shall be limited to payment of the agreed amount. Subsequent claims due to changes in cost factors between the date of the purchase order and the date of delivery shall be excluded.
3.5 Insofar as certificates of material tests have been agreed, they shall form an integral part of the delivery and shall be sent to us together with the invoice. The period for payment of invoices shall commence upon receipt of the agreed certificate.
3.6 Payment shall not be deemed to be an acknowledgement of defect-free delivery. We shall be entitled to withhold payment, in whole or in part, until defects in the delivery have been remedied.
In the case of advance payments, the Supplier shall, on request, provide appropriate securities (e.g. bank guarantee) and appropriate interest.
4.0 Delivery, delivery dates
4.1 The agreed delivery dates and periods are binding. Receipt of the goods at the place of receipt or use specified by us shall be decisive for compliance with the delivery date or delivery period. The delivery period shall commence upon receipt of our purchase order or at the time of the agreed acceptance.
4.2 Early deliveries and partial deliveries shall require our consent. If delivery is made early without our consent, we reserve the right to return the goods at the Supplier’s expense. If the goods are not returned, they shall be stored by us at the Supplier’s expense and risk until the delivery date. We reserve the right to make payment only on the agreed due date.
4.3 Each delivery must be accompanied by a delivery note which must contain: Number and date of our purchase order, exact description of the delivered goods including drawing number and our reference. Partial or residual deliveries must be separately marked.
4.4 The consequences of incorrect, incomplete or delayed shipping documents shall be borne by the Supplier.
4.5 Shipment shall be at the risk of the Supplier.
4.6 The Supplier’s obligation to take back packaging shall be governed by the statutory provisions. The costs for returned packaging shall be credited at the full invoiced value. Postal parcel packaging shall be included in the price.
5.0 Delay in delivery
5.1 If the Supplier recognises that an agreed date cannot be met, he shall be obliged to inform us immediately in writing, indicating the reasons and the expected duration of the delay.
5.2 If the Supplier fails to perform the due service, we shall be entitled to withdraw from the contract and/or claim damages, to claim damages in lieu of performance or to claim reimbursement of futile expenses. These claims cannot be asserted if the reason for the non-performance of the service is beyond the control of the Supplier. We may only claim damages in lieu of performance if we have first set a reasonable deadline for performance which is not met by the Supplier. It shall not be necessary to set a deadline if the Supplier seriously and finally refuses performance or if there are special circumstances which, after weighing up the interests of both parties, justify the immediate assertion of these claims.
5.3 Force majeure and lawful industrial disputes shall release the contracting parties from their performance obligations for the duration of the disruption and to the extent of its effect. If the delivery is no longer of interest to us due to the delay caused by the force majeure or the industrial dispute, taking into account economic aspects, we shall be entitled to withdraw from the contract and to assert claims for damages, damages in lieu of performance, reimbursement of expenses or reimbursement of futile expenses. This entitlement shall not apply if the Supplier can prove that the circumstances of the delay leading to the loss of economic interest on our part are beyond the Supplier’s control.
6.0 Claims for defects, limitation period
6.1The Supplier warrants that all supplies/services comply with the latest state of the art and the relevant legal provisions, in particular the regulations of the employers’ liability insurance association, the trade supervisory authority, the VDE and EC Directive 89/655 EEC, and that they have the agreed quality. The existence of these quality requirements shall also be expressly guaranteed by the Supplier.
6.2 The Supplier shall be obliged to enclose all technical instructions required for the safe and accident-free operation and maintenance of the delivery items with the delivery items. The Supplier warrants and guarantees that all the technical instructions supplied are complete and factually correct and correspond not only to the series but also to the current technical status of the delivery items. Furthermore, the Supplier warrants that the technical instructions supplied comply with the regulations and recommendations of the EC Machinery Directive with regard to their didactic quality and comprehensibility.
6.3 If the delivery items do not meet with these requirements, we shall be entitled to the statutory claims for defects in full. At our discretion, we shall be entitled to demand rectification or subsequent delivery from the Supplier at the Supplier’s expense. If the Supplier is in default with the subsequent performance, we shall be entitled to remedy the defect ourselves or have it remedied by third parties at the Supplier’s expense. This shall not prejudice our further claims for defects.
It shall not be necessary to set a deadline for the subsequent performance by the Supplier prior to self-performance by us or a third party designated by us if the Supplier seriously and finally refuses subsequent performance, a deadline set for subsequent performance has expired or special circumstances exist which, after weighing up the interests of both parties, justify immediate self-performance. This is to be assumed in particular in the case of exceptional urgency. In the latter case, the Supplier shall be informed immediately of the intended rectification. A record of the rectification work shall be drawn up by us. The Supplier shall be obliged to bear all expenses necessary for the rectification or replacement delivery, for example, costs of the replacement part, costs for removal and installation and working time including travel costs.
In addition, we may assert claims for withdrawal from the contract or reduction of the purchase price and/or claims for damages, damages in lieu of performance, reimbursement of expenses and reimbursement of futile expenses after subsequent performance has failed. Subsequent performance shall be deemed to have failed if the deadline for subsequent performance has expired, the Supplier seriously and finally refuses subsequent performance or an attempt at subsequent performance by the Supplier has failed.
6.4 Return shipments of rejected delivery items shall be made for the account and at the risk of the Supplier.
6.5 Claims for defects including any claims for damages, claims for damages in lieu of performance, claims for reimbursement of expenses and claims for reimbursement of futile expenses against the Supplier shall become statute- barred after 24 months. In the case of a purchase, the limitation period shall begin when the delivery item is handed over to us or to the third party designated by us, unless expressly agreed otherwise. In the case of a work performance, the decisive point in time for the commencement of the period shall be the point in time of acceptance.
If a material defect becomes apparent within 6 months of the beginning of the period, it shall be assumed that this material defect was already present at the beginning of the period.
6.6 The limitation period of the claim for defects shall be suspended for the duration of the inspection of the defect and subsequent performance. After completion of the respective subsequent performance, the limitation period of 2 years for the newly delivered or repaired parts shall begin again in each case, insofar as the Supplier has expressly or implicitly acknowledged the obligation of subsequent performance with the subsequent performance.
6.7 Limitations of the scope of liability in favour of the Supplier shall not become a subject matter of the contract. The statutory provisions shall apply; claims for damages due to tort, injury to life, limb or health and/or due to a breach of the Product Liability Act shall become statute-barred in accordance with the statutory provisions.
7. Quality and documentation
7.1 Changes to the delivery item shall require the prior written consent of the Purchaser. The Supplier shall carry out an initial sample inspection. Irrespective of this, the Supplier shall constantly monitor the quality of the delivery items. The contracting parties shall inform one another about quality improvement possibilities.
7.2 If the type and scope of the tests as well as the test equipment and methods have not been firmly agreed between Supplier and Purchaser, the Purchaser shall be prepared, at the Supplier’s request, to discuss the tests with the Supplier within the scope of its know-how, experience and possibilities in order to determine the respective required state of testing technology. In addition, we shall inform the Supplier about the relevant safety regulations upon request.
7.3 In the case of drawing parts specially marked in the technical documents or by separate agreement, the Supplier shall also record in special records when, in what manner and by whom the delivery items have been tested with regard to the features requiring documentation and what the results of the required quality tests were. The test documents shall be kept for 10 years and submitted to the Purchaser on request. The Supplier shall oblige sub-suppliers to the same extent within the framework of the legal possibilities.
7.4 Insofar as public authorities responsible for motor vehicle safety, exhaust gas regulations, etc. demand insight into the production process and the test documents from us for the purpose of verifying certain requirements, the Supplier agrees, at our request, to grant them the same rights in his company and to provide all reasonable support in this regard.
8. Product liability, third-party liability insurance cover
8.1 If the delivered item leads to a defect in a product manufactured or supplied by us, the Supplier shall be obliged to indemnify us immediately against any claims for damages by third parties. Within the scope of this liability, the Supplier shall also be obliged to reimburse any expenses pursuant to §§ 683, 679 German Civil Code (BGB) as well as pursuant to §§ 830, 840, 426 BGB resulting from or in connection with a recall campaign or other measures carried out by us to avoid a risk of danger. We shall inform the Supplier of the content and scope of the measures to be taken – insofar as this is possible and reasonable – and give him the opportunity to comment. This shall not infringe other statutory claims.
8.2 The Supplier shall be obliged to mark the delivery items in such a way that they are permanently recognisable as his products. The Supplier shall employ a quality management system suitable in terms of type and scope which corresponds to the state of the art. Insofar as we consider this necessary, the Supplier shall conclude a corresponding quality assurance agreement with us. 8.3 The Supplier shall be obliged to maintain product liability insurance with an appropriate insured sum and to submit the insurance policy to us for inspection upon request. This shall not infringe any further claims for damages to which we may be entitled. The product liability insurance to be taken out by the Supplier must cover third-party expenses for the removal, dismantling, acceptance and/or uncovering of defective products and for the installation, fitting and/or relocation of defect-free products as well as the costs of the recall. It must also cover the costs of appropriate alternative measures taken instead of removal and installation, up to the amount that would have been necessary if removal and installation had been carried out.
9. Documents and production means
9.1 Models, samples, drawings, standard sheets, etc. made available to the Supplier by us for the purpose of executing the purchase order shall remain our property. Any processing, transformation or combination with other items not belonging to us shall be carried out for our account. A new item produced with materials provided by us shall be stored by the Supplier for our account. In the event of processing, transformation or combination with items not belonging to the Supplier, we shall be entitled to co-ownership of the newly formed item in the amount of the ratio of the value of the processed, transformed or combined material provided by us to the value of the new item. The Supplier shall not be authorised to dispose of the material provided by us in a legal transaction.
9.2 The Supplier shall be obliged to keep all models, samples, drawings and other documents and information received strictly confidential and to use them only for the execution of our purchase orders. Duplication of our documents is not permitted. Similarly, the means of production provided by us may not be sold, pledged or otherwise passed on to third parties without our written consent. The same shall apply to items manufactured using such means of production.
For each culpable breach of the confidentiality obligation described above, we shall be entitled to demand an appropriate contractual penalty determined by us
at our reasonable discretion, which shall be subject to review by the competent court in the event of dispute.
9.3 After completion of our purchase order, the means of production provided by us or manufactured for our account shall be returned by us upon written request. The Supplier shall be liable for the proper storage of models and tools.
10. Property rights
10.1 The Supplier shall be liable, depending on fault, for ensuring that all deliveries are free of third-party property rights and, in particular, that patents, licences and other third-party property rights are not infringed by the delivery and use of the delivery items.
10.2 In the event of fault, the Supplier shall be obliged to immediately indemnify us and our customers against all claims of third parties arising from any infringements of property rights. We shall not be obliged to defend the Supplier’s rights against the third party on behalf of the Supplier.
The obligation under clauses 10.1 and 10.2 shall not apply if the delivery item is based on models, samples, drawings, standard sheets, etc. provided by us.
11. Data protection
In the context of agreed activities/services at our business premises or on our premises, the Supplier may gain access to confidential data of our company in the course of performance. For this reason, it shall be deemed to be have been agreed with the placement of the order that the Supplier will maintain secrecy with regard to all company-related and personal information. The Supplier shall be prohibited from collecting, processing or using company-related and personal data without authorisation. The Supplier’s employees working on our premises shall be instructed by the Supplier in accordance with the applicable data protection regulations and shall be obliged to maintain confidentiality. This obligation shall continue beyond the end of the contractual relationship. All information that has become known until then shall continue to be subject to the obligation of confidentiality.
12. Spare parts availability
The Supplier shall warrant a sufficient supply of spare parts for at least 10 years after the last series delivery to us at fair market prices for original equipment manufacturers.
13. Limitation of liability
13.1Claims for damages and reimbursement of expenses by the Supplier against us as well as against our organs, legal representatives and/or vicarious agents (hereinafter referred to as “Claims for Damages”), irrespective of the legal grounds, in particular due to breaches of the contractual obligation and/or tort, shall be ruled out.
This shall not apply if we or our organs, legal representatives and/or vicarious agents are guilty of intent or gross negligence and/or in the event of a breach of cardinal contractual obligations.
In the event of liability for breach of contractual obligations, the extent of liability shall be limited to compensation for the typical foreseeable damage if our organs, legal representatives and/or vicarious agents are guilty of only minor negligence, whereby in the case of simple vicarious agents, this limitation of liability shall apply in the case of any negligence.
13.2 The limitations of liability under clause 13.1 shall not apply to the extent that we are compulsorily liable, for example under the Product Liability Act and/or in the event of injury to life, limb and/or health.
13.3 The statutory limitation periods shall apply to all claims for damages against us and our employees.
14. Final provisions
14.1Should individual provisions of these Terms and Conditions of Procurement be or become invalid, this shall not affect the validity of the remaining provisions. 14.2 The Supplier shall not be entitled to subcontract the order to third parties without our prior written consent.
14.3 Unless expressly agreed otherwise, place of performance for the delivery obligation shall be the shipping address or place of use requested by us; for all other obligations of both parties, place of performance shall be Bad Oldesloe. 14.4 Place of jurisdiction shall be Bad Oldesloe (local court) or Lübeck (regional court).
14.5 Unless otherwise provided for above, the law of the Federal Republic of Germany shall apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Terms and Conditions of Procurement
for Tools, Models and Jigs (TMJ)
1. The following provisions shall apply to orders for tools, models and jigs (TMJ). Insofar as these contain special provisions, they shall take precedence over the above Terms and Conditions of Procurement which shall otherwise apply in addition.
2./2.1 Upon first use of the TMJ within the scope of the supply contract, ownership of the TMJ shall pass to Hako. From this time onwards, the Supplier shall keep the TMJ in safe custody for Hako and shall mark them as belonging to Hako.
2.2 Even in the event of payment of pro rata TMJ costs, we shall inherit the full right of disposal of the tools, models and jigs. The Supplier shall be obliged to inform Hako without delay of all circumstances which could affect Hako’s rights, in particular enforcement measures by third parties or an application to open insolvency proceedings against the Supplier’s assets. In such cases, the Supplier shall be obliged to immediately surrender all TMJ subject to Hako’s right of disposal to Hako.
2.3 Residual costs can only be claimed if the total costs were indicated to us in the order confirmation. We shall also be entitled to exert the full right of disposal for the tools, models and jigs if, during the processing of the first or subsequent orders,
- unreasonable prices are demanded which are not based on the quotation
price,
- the delivery time taken is not in line with market requirements,
- Quality and workmanshp in accordance with the drawings are not achieved by
the contract partner,
- the Supplier receives no further follow-up orders from Hako after the last
delivery contract has been completely fulfilled.
The TMJ must be surrendered immediately on written demand by Hako.
The tools may not be used for third-party orders. Scrapping of TMJ shall require our express written approval. The provisions under point 2 shall apply also in the event of partial or full tool cost amortisation.
3./3.1 We expect only the return of our enclosed copy as order confirmation. 3.2 The TMJ specifications shall be stated with individual prices in the order confirmation, as well as the total costs in the case of pro rata tool costs.
4./4.1 The TMJ shall guarantee production of the part in accordance with the drawing to the level of the guaranteed output.
4.2 The costs for TMJ modifications and additions due to technical changes to the part to be manufactured shall be submitted to us immediately in writing. The costs shall be approved only with our supplementary purchase order, otherwise no remuneration shall be paid.
4.3 Repair and maintenance costs up to the guaranteed output shall be borne by the Supplier. Once the guaranteed output has been exceeded, agreement on Hako’s share of the costs shall be reached between the Supplier and Hako.
4.4 Modifications or repairs to the TMJ shall be carried out in such a way that timely delivery remains guaranteed. If necessary, a delivery date shall be agreed upon with us.
5. The Supplier shall ensure proper storage of the TMJ and take out adequate insurance against the usual risks at his expense.
6. A separate invoice in duplicate shall be submitted for TMJ costs. After completion of the tools and approval of the reference samples, the invoice shall be due for payment net within 14 days. Production approval shall be given to the Supplier in writing with our reference sample approval.
As of: September 2022