Terms and Conditions of Purchase

A. General information

1. The following Terms and Conditions of Purchase apply to all orders placed by us, Zeller + Gmelin GmbH & Co. KG, Schlossstrasse 20, 73054 Eislingen/Fils, Germany, even if no reference is made to them in subsequently concluded contracts.
2. Contradictory, supplementary or supplier terms and conditions which deviate from these Terms and Conditions of Purchase, do not form part of any contract unless we expressly agree to their applicability in writing.
3. Upon acceptance of the order and, at the latest, upon commencement of its execution, the supplier recognises the exclusive validity of these Terms and Conditions of Purchase.
4. Agreements supplementary to or deviating from these Terms and Conditions of Purchase entered into between us and the supplier for the purpose of the execution of a contract must be set out in writing in the contract. This also applies to the cancellation of the written form requirement.
5. These Terms and Conditions of Purchase also apply if we unconditionally accept a delivery from the supplier in the awareness of supplier terms and conditions which contradict or deviate from our Terms and Conditions.
6. Our statutory rights beyond the scope of these Terms and Conditions of Purchase remain unaffected.

B. Orders, contract conclusion

1. Orders, order changes and order supplements, as well as other agreements entered into at the time of contract conclusion, are only binding if we have issued them in writing or in text form, or if we have followed up a verbal or telephone order by confirmation written or in text form.
2. Our failure to respond to supplier offers, requests or other declarations shall not be construed as a legally-binding declaration on our part. Furthermore, orders containing obvious mistakes, misspellings or miscalculations are not binding for us.
3. Unless otherwise agreed, price quotations are binding and shall not be remunerated by us.
4. The supplier shall send out an order confirmation which explicitly confirms the price and delivery date promptly and within a maximum period of seven (7) days after receipt of the order. Our timely receipt of the order confirmation is authoritative for deadline compliance. Late supplier order confirmations constitute a new quotation and are subject to our acceptance. Order confirmations which deviate from our order are not deemed to have been agreed unless we have expressly confirmed them in writing or text form.
5. Call-off deliveries are binding unless the supplier objects to them within five (5) working days of receiving them.

C. Force majeure

1. If we are prevented from performing our contractual obligations, particularly goods acceptance, by acts of force majeure, we are exempted from our performance obligation for the duration of the impediment plus a reasonable lead time, without being required to pay compensation for damages to the supplier. The same applies if our performance is unreasonably complicated or temporarily rendered impossible by unforeseeable circumstances which are beyond our control, particularly epidemics and pandemics, regulatory measures such as quarantine orders, energy shortages or major operational disruptions. The same applies to industrial action affecting us.
2. We are entitled to withdraw from the contract if the duration of the impediment specified in paragraph 1 continues for more than four months and, as a result, fulfilment of the contract is no longer of interest to us. At the supplier’s request we will provide notification of whether we intend to exercise this right of withdrawal or take acceptance of the goods within a reasonable time at the end of the four-month period.

D. Delivery, delivery dates, late delivery

1. Agreed delivery times are binding. Delivery periods commence on the date of order.
2. The time at which the goods are handed over to us is authoritative for timely delivery if ‘carriage paid’ or DDP as per Incoterms® 2020 is agreed. If 'ex works’ or EXW as per Incoterms® 2020 is agreed, the timely provision of the goods at the supplier, taking loading and shipment times as agreed with the carrier into account, is authoritative for timely delivery.
3. As soon as the supplier realises that the agreed delivery date cannot be met, it shall notify us promptly in writing, stating the reason and the anticipated duration of the delay. If the supplier is late delivering and the goods are not delivered within a reasonable additional time period, we are entitled to withdraw from the contract. Further claims shall remain unaffected.
4. If the supplier is late delivering, we are entitled to receive a contractual penalty in the amount of 0.5% of the net order value for each commenced week of delay up to a maximum amount of 5% of the net order value. Our right to assert further claims remains unaffected. The contractual penalty shall be offset against any default damages to be paid by the supplier. Our right to delivery is only waived if the supplier pays compensation for damages in lieu of delivery at our request. Our acceptance of a late delivery shall not be construed as a waiver of our right to claim damages.
5. The unconditional acceptance of late delivery or late performance shall not be construed as a waiver of our right to receive compensation for the delay. We are entitled to claim compensation up to the full amount of the purchase price owed by us.
6. Early deliveries are only admissible with our prior written consent. We are entitled to return early deliveries at the supplier’s expense or to place them in storage until the agreed delivery date at the supplier’s expense.
7. Part, excess and short deliveries are not admissible unless otherwise agreed. We reserve the right to recognise them on an individual case basis.

E. Passing of the risk and shipment

1. The supplier bears the risk of accidental loss or deterioration of the goods until they have been accepted by us (‘carriage paid’ or DDP as per Incoterms® 2010). If the supplier is under obligation to assemble or install the goods at our premises, the risk does not pass to us until the goods are operational.
2. The goods shall be packaged in a manner which prevents transport damage. Use of packaging materials shall be kept to the necessary minimum. Only environmentally friendly, recyclable packaging materials may be used.

F. Delivery notes and invoices

1. Delivery notes and transport documents must state our order number, the supplier number, our material number and the point of delivery.
2. Invoices must be issued to us in duplicate, separately from the goods and immediately after shipment to the billing address stated on the order.

G. Prices and terms of payment

1. The price stated in the order is binding. Unless otherwise agreed in writing, prices are ‘carriage paid’ or DDP as per Incoterms® 2020, including packaging and all ancillary costs.
2. Statutory VAT is not included in the stated price. It is billed by the supplier on the invoice, stated separately on the invoice in the relevant amount at the time of invoicing. If the VAT is not stated separately it is deemed to be included in the price.
3. Payments will be effected within fourteen days (14) of the passing of the risk and receipt of the invoice less a 3% early payment discount, or net within thirty (30) days. Payments are always subject to invoice verification. In the case of defective delivery, we are entitled to withhold payment until proper performance has been effected without losing any granted discounts. The payment term commences after full rectification of the defect. When early deliveries are made the payment term commences on the day after the agreed delivery date.
4. We acquire absolute title to the goods upon payment at the latest. Payments shall be effected to the supplier only. Extended reservation of title in all forms shall be excluded.
5. The supplier is only entitled to offset counterclaims against payments due if the claims have a non-appealable legal status or are undisputed.

H. Quality, warranty, defect notices, defect claims, compensation for damages

1. The supplier warrants that the deliverables are free from material defects within the meaning of § 434 BGB (German Civil Code), in particular that they comply with the agreed specifications, the purpose of the contract, the state of the art and relevant laws, as well as the official regulations and directives of employer’s liability insurance associations and trade associations. Independently of this, the supplier shall regularly review the quality of the deliverables. The contract partners shall inform each other of identified opportunities to make quality improvements.
2. The supplier expressly assures that the deliverables are suitable for the intended purpose if an intended purpose has been agreed.
3. Unless otherwise agreed, the statutory warranty rights apply.
4. Immediately after acceptance of the goods, if possible in the ordinary course of business, we will verify that quantities and identities conform to our order and inspect the goods for externally visible transport damage. If a defect is discovered during these checks or at a later time, and it is possible in the ordinary course of business, we are required to notify the supplier of the defect without delay after its discovery.
5. Without prejudice to our statutory rights of recourse in the event of defects, the following applies to defective deliveries:
   a) We are entitled at our choice to demand subsequent performance in the form of defect rectification or a defect-free replacement. The supplier shall bear all costs associated with subsequent performance.
   b) If a defect in supplied raw materials or semi-finished goods is not discovered until the goods are processed, we are entitled to claim compensation for damages in addition to subsequent performance.
6. Defect claims are subject to a limitation period of three (3) years except in cases of fraudulent intent. The limitation period commences at the time of the passing of the risk in accordance with E.1.
7. If the supplier meets the subsequent performance obligation by supplying a defect-free replacement, the limitation period for the supplied replacement commences again upon acceptance.

I. Third-party industrial property rights

1. The supplier warrants that the delivery and use of the goods does not infringe upon any third-party proprietary rights.
2. If a claim is asserted against us in connection with the supply and use of the goods or the infringement of proprietary rights, the supplier is required to indemnify us and hold us harmless from and against such claims at first request. This duty to indemnify and hold harmless extends to all expenses incurred in connection with the claim.
3. In the case of third-party damages claims, the onus is on the supplier to prove that it is not at fault for the infringement of the third-party rights.
4. The period of limitation is three (3) years, commencing on the date of the passing of risk.

J. Product liability

1. Insofar as the supplier is responsible for damage to a product, it must indemnify and hold us harmless from and against third-party claims for damages upon first request, if the cause of the damage lies within the supplier’s area of control and responsibility and it has own liability vis-à-vis third parties. This duty to indemnify and hold harmless extends to all expenses incurred in connection with the claim. Our right to assert further claims remains unaffected.
2. Within the scope of the supplier’s own liability for damages in accordance with paragraph 1 it shall additionally reimburse any expenses incurred by us as a result of or in connection with a lawfully implemented warning, replacement or recall campaign. We will inform the supplier of the content and scope of the recall activities in due time and – to the extent that is feasible and reasonable – offer the supplier the opportunity to make a statement.
3. The supplier undertakes to take out a product liability policy providing adequate cover, which also covers the product recall risk.

K. Performance of work, building services

1. Persons who perform work on our premises in connection with the fulfilment of the contract are required to comply with our safety regulations.
2. When building services are performed, a certificate of exemption from withholding tax for building contracts must be presented.

L. Confidentiality, documents

1. The supplier undertakes to refrain indefinitely from disclosing any information made available by us which is designated as confidential, as well as information obtained by other means which obviously falls into the category of business or trade secret, and not to record, transfer or use such information unless this is necessary for the delivery of the goods to us. The supplier will obtain undertakings by way of suitable contractual agreements from internal and external personnel that they, too, will refrain from own use, transfer or unauthorised recording of such business and trade secrets.
2. Upon our request all samples and/or documents provided by us shall be returned to us and/or permanently destroyed or erased, unless they the supplier requires them for the purpose of contract execution.

M. Place of performance and legal venue

1. Place of performance for the supplier and for us is the place of our registered office.
2. The exclusive legal venue for all business relationships with entrepreneurs and public sector corporations is the place of our registered office. We are also entitled to bring legal action at the supplier’s place of registered office or any other admissible legal venue.

N. Concluding provisions

1. All legal relationships between the supplier and us shall be governed by the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
2. The supplier may only engage a third party to execute an order, or substantial parts of an order, with our prior written consent.
3. The supplier may only assign rights and obligations to third parties with our prior written consent.

Zeller+Gmelin GmbH & Co. KG
Last revised: February 2022