Purchasing conditions

Purchasing conditions Putzmeister Mörtelmaschinen GmbH

A purchase, work or work delivery contract with us (hereinafter referred to as “purchaser”) is only concluded on the basis of these purchasing conditions.

Validity of the purchasing conditions

The following purchasing conditions apply exclusively. These purchasing conditions also apply if the purchaser accepts deliveries without reservation despite being aware of the supplier’s terms and conditions that deviate from or conflict with these purchasing conditions. They also apply to all future business relationships with the supplier, even if they are not expressly agreed again. Different terms and conditions of the supplier or contractor only apply if the purchaser has expressly acknowledged them in writing.

II. Orders, prices

Orders and delivery calls as well as their changes and additions are only valid if the purchaser has issued or confirmed them in writing or by fax. If the supplier changes the order, the purchaser is not bound by this. A modified confirmation of the order by the supplier is considered a new offer, to which the supplier is bound until 14 days after receipt by the purchaser. Acceptance by the customer must be made in writing; the principles of the commercial confirmation letter do not apply. If the supplier does not accept the order within 14 days of receipt of the order, the customer is entitled to cancel. The order is accepted by returning the order confirmation enclosed with the order. The date of the postmark is decisive for the receipt of the order by the supplier and for the receipt of the order confirmation by the purchaser. The same applies to the cancellation of the order by the customer. The purchaser can request changes to the delivery item in terms of design and execution within the scope of what is reasonable for the supplier. The parties will regulate the resulting effects (e.g. in the form of additional or reduced costs, changes to delivery dates, etc.) appropriately. The agreed prices are fixed prices, free to the destination of the goods, including packaging and other additional costs.
If the supplier does not accept the order within 14 days of receipt of the order, the customer is entitled to cancel. The order is accepted by returning the order confirmation enclosed with the order. The date of the postmark is decisive for the receipt of the order by the supplier and for the receipt of the order confirmation by the purchaser. The same applies to the cancellation of the order by the customer.
The purchaser can request changes to the delivery item in terms of design and execution within the scope of what is reasonable for the supplier. The parties will regulate the resulting effects (e.g. in the form of additional or reduced costs, changes to delivery dates, etc.) appropriately.
The agreed prices are fixed prices, free to the destination of the goods, including packaging and other additional costs.

III. Delivery

Acceptance of the goods by the customer is only subject to inspection for defects, contractual quality, guaranteed properties and completeness.
Materials and parts provided must be returned to the purchaser free of charge if and to the extent that they are no longer required to carry out the delivery.
Each delivery must be accompanied by a delivery note in duplicate, which describes the type and scope of the goods as well as the order/item number and item number of the purchaser. If the goods are delivered directly to a third party or if the goods are picked up from the supplier by a third party, the purchaser’s shipping instructions must be observed.
Deliveries must only be scheduled in the quantities specified by the purchaser in the order and on the dates specified. Partial deliveries require the prior consent of the purchaser.
The supplier must comply with the provisions of the Packaging Ordinance in the currently valid version.

IV. Delivery date, withdrawal, compensation

If the agreed delivery dates are not adhered to or if the deadline is exceeded, the purchaser is entitled to rights and claims – including claims for damages – in accordance with the legal regulations. If a deadline set by him has expired without result, the purchaser is particularly entitled to demand compensation instead of performance and can make cover purchases at the supplier’s expense. If the supplier is not responsible for non-performance, the purchaser cannot claim damages instead of performance, but is entitled to withdraw from the contract.
The purchaser points out that if the agreed delivery dates are not adhered to, he may suffer damage because he enters into delivery obligations and delivery dates towards his customers that require timely and proper delivery from the supplier.
The decisive factor for compliance with the delivery date or delivery period is the receipt of the goods by the purchaser or the third party named by the purchaser, and in the case of collection, their availability by the supplier.
If the goods are delivered before the delivery date without the purchaser’s consent, the purchaser has no obligation to accept or pay until the agreed delivery date.
The supplier will notify the purchaser immediately in writing if he has or foresees difficulties in the production or delivery of the agreed quality or the procurement of materials or if other circumstances arise that prevent him from delivering on time and properly. If the supplier violates this obligation, he must compensate the customer for any resulting damage.

V. Invoices and payments

Every invoice from the supplier must be submitted to the purchaser, stating the purchaser’s order and article number.
The payment period runs from delivery or from receipt of the invoice by the customer, whichever is later.
Unless otherwise agreed, invoices will be paid, at the purchaser’s discretion, within 14 days with a 3% discount deducted or within 30 days net cash, from the start of the payment period in accordance with Section V.2 above.
The purchaser’s payment is subject to the condition that there are no obstacles due to national or international foreign trade law regulations and no embargoes (and/or other sanctions).

VI. Subject to review

The purchaser reserves the right, at his own discretion, to inspect any goods, whether at the supplier’s premises or at third parties whom the supplier uses to fulfill his obligations – including during the production process – as well as at the freight forwarder or in warehouses. The decisive factors for the review are the goods specification set out in the order, the samples and guaranteed properties provided by the supplier and other specifications agreed with the supplier.

VII. Quality and documentation

The supplier must comply with the recognized rules of technology, the applicable legal safety regulations and the technical data and standards agreed with the customer for its deliveries, documentation and operating and maintenance instructions. He must provide documentation and operating and maintenance instructions for his deliveries. Changes to the delivery item, even if the supplier considers them to be improvements, require the purchaser’s prior written consent. The contracting parties will continually inform each other about the possibilities for improving quality.
If the type and scope of the tests as well as testing equipment and methods are not firmly agreed between the supplier and the customer, the customer is prepared, at the supplier’s request, to discuss the tests with him within the scope of his possibilities in order to determine the required level of testing technology.
To the extent that the purchaser, the responsible authorities or the purchaser’s customers request insight into the production process or the test documents in order to verify certain requirements, the supplier will grant this insight and provide explanations and any other reasonable support.

VIII. Warranty

The supplier guarantees that the delivery corresponds to the latest state of the art, the regulations applicable in the Federal Republic of Germany for production, sales, use of the delivery item and accident prevention, as well as the agreed quality. The supplier also guarantees that the delivery does not violate the rights of third parties.
If the delivered goods have a defect or if guaranteed properties are not met, the purchaser is entitled, at his discretion, to demand the elimination of the defect or the delivery of a defect-free item. Furthermore, the purchaser is entitled to reduce the purchase price in accordance with the statutory provisions, to withdraw from the contract and to demand compensation or reimbursement of wasted expenses.
The purchaser is entitled to set a deadline for rectifying defects in such a way that, if the supplier does not remedy the defect on time, he can either rectify the defects himself or have them remedied by a third party, without the purchaser himself being in default of delivery to his customers. The supplier shall bear the costs of any subsequent improvement required. If this is necessary to avert imminent dangers or to avoid significant damage due to an otherwise disruptive disruption to the customer’s business, the customer is entitled, after notifying the supplier accordingly, to eliminate defects or have them eliminated at the supplier’s expense.
If the same goods have already been delivered defectively in the past, the purchaser is entitled to withdraw from the contract for the entire scope of delivery that has not yet been fulfilled in the event of a new defective delivery after unsuccessfully setting a deadline for the supplier to remedy the defect or deliver a defect-free item. Further legal rights and claims – including for damages – remain unaffected.
The purchaser must report defects in the delivery to the supplier in a timely manner as soon as they are discovered in the normal course of business. Notices of defects are considered timely if they are made within 10 days of their discovery.
The purchaser will either return or make available defective goods to the supplier at the supplier’s expense and risk or store them at the supplier’s expense until they are picked up.
If goods are returned to the supplier, the purchaser retains ownership of them until the amount resulting from the purchaser’s debit note has been cleared or paid. The goods may not be pledged or assigned as security. The purchaser must be informed immediately of any threatened or successful seizure or confiscation of the goods by third parties.
The limitation period for warranty claims due to material defects ends 24 months after the delivery item was put into operation, but no later than 36 months after delivery to the customer. However, any longer statutory limitation period remains unaffected.

IX. Liability

The supplier is obliged, upon first request, to indemnify the purchaser from any liability for damages – including legal costs – which the purchaser incurs as a result of defective delivery, due to violation of official safety regulations, due to insufficient documentation, operating and maintenance instructions or for any other reasons attributable to the supplier or which are asserted against the purchaser by a third party. This also applies in particular if claims are made against the purchaser by a third party due to strict liability under the German Product Liability Act or corresponding regulations of other countries or under the law of the European Community. In these cases, the supplier assumes the purchaser’s liability towards the third party if and to the extent that the cause of the damage was within his area of responsibility. The above claim for exemption only expires as soon as the claims asserted against the purchaser by third parties also expire.
Even if the construction or design of the goods is based on instructions from the supplier must inform the purchaser of any special risks associated with the desired construction or design.
The supplier is obliged to reimburse the purchaser for all expenses incurred by the purchaser as a result of or in connection with a warning or recall campaign carried out by the purchaser if and to the extent that the cause for this was within the control and organizational area of the supplier. The purchaser will agree in advance with the supplier – as far as possible and reasonable – about the content and scope of the measures to be carried out and give the supplier the opportunity to comment.

X. Use of the delivery within the Putzmeister Group

Companies of the Putzmeister Group (§ 15 AktG) can be provided for and the companies of the Putzmeister Group where the deliveries are used are also included in the scope of protection of the contract (with regard to the purchaser’s protection and performance obligations) between supplier and purchaser.

XI. Prohibition of assignment, offsetting, right of retention

The supplier cannot assign any rights or claims arising from this contract in whole or in part without the express consent of the purchaser. This does not apply to monetary claims in accordance with Section 354 a of the German Commercial Code (HGB).
The supplier may only set off undisputed or legally established claims against the customer’s claims.
The supplier only has a right of retention if his counterclaim is based on the same contractual relationship and is undisputed or legally established, or if the purchaser grossly violates his obligations from the same contractual relationship.

XII. Property of the purchaser, insurance

Samples, models, drawings, working documents, etc., which the purchaser makes available to the supplier or pays for, remain or become the property of the purchaser. Any acquisition of possession necessary for the transfer of ownership will be replaced by the supplier storing the items for the purchaser free of charge with the care of a prudent businessman.
If the purchaser provides materials or parts to the supplier, the purchaser reserves ownership of these. They must be marked by the supplier as the property of the purchaser immediately upon receipt, stored separately and only used within the scope of the purpose specified by the purchaser.
Processing or transformation of materials or parts provided by the purchaser by the supplier is carried out for the purchaser. If the purchaser’s reserved goods are processed with other items that do not belong to the purchaser, the purchaser acquires co-ownership of the new item in the ratio of the value of the purchaser’s item to the other processed items at the time of processing. If the item provided by the purchaser is inseparably mixed with other items that do not belong to the purchaser, the purchaser acquires co-ownership of the new item in the ratio of the value of the purchaser’s reserved item to the other mixed items at the time of mixing. If the supplier’s item is seen as the main item after mixing, the supplier transfers proportional co-ownership to the purchaser. Any acquisition of possession necessary for the purchaser to acquire ownership is replaced by the supplier storing the item in question for the purchaser free of charge with the care of a prudent businessman.
The supplier is obliged to adequately insure all drawings, models, tools and all materials and parts provided to him by the customer against all usual risks, in particular against fire and theft, at his own expense and to provide proof of the existence of the insurance to the customer upon request. Furthermore, the supplier is obliged to inform the purchaser immediately of any impending or already seized seizure of the purchaser’s item or any other impairment of the purchaser’s rights.
The supplier is obliged to maintain appropriate product liability and recall cost insurance at his own expense. The insurance must include the risk of the supplier’s legal liability for damage caused by his goods and the risk of his goods due to warnings and recalls initiated. Proof of the existence of the insurance must be provided to the purchaser upon request. The supplier’s liability towards the purchaser is not limited by the conclusion of the insurance and the coverage achieved with it.

XIII. Export control

The supplier must provide the purchaser with all information and data in writing as early as possible, but no later than two weeks before the delivery date, that the purchaser needs to comply with the applicable foreign trade law for export, transfer and import and, in the case of further distribution, for re-export of the goods and services, in particular for each good and each service:

– The applicable export list item (if the good is not subject to an export list item, this must be stated with “AL:N”);
– The statistical commodity number according to the current commodity classification of foreign trade statistics and the HS code;
– The country of origin (non-preferential origin) and
– If requested by the purchaser, supplier declarations on preferential origin or certificates on preferences (export control and foreign trade data).

In the event of changes to the origin, the characteristics of the goods or services or the applicable foreign trade law, the supplier must update the export control and foreign trade data as early as possible, but no later than 1 week before the delivery date, and inform the purchaser in writing. The supplier bears all expenses and damages incurred by the purchaser due to the absence or incorrectness or delayed receipt of export control and foreign trade data.

XIV. Secrecy

The contractual partners undertake to treat all non-obvious commercial and technical details that become known to them through the business relationship as business secrets, even after its termination. This does not apply to facts, documents and information that demonstrably either become generally known to the contractual partner in question without his being responsible for this, or were already known to him before they were made accessible to him by the other contractual partner or came to his knowledge through a third party, without there being a breach of the confidentiality obligation that the third party owes to the other contractual partner.
The purchaser’s drawings, models, samples, parts lists and similar objects and documents and other confidential information of the purchaser – including those provided verbally – may not be passed on to third parties or otherwise made accessible or used for deliveries to third parties without the express prior written consent of the purchaser. They must be returned free of charge without special request – at the latest after completion of the order – as soon as and when they are no longer needed to carry out the order.
The contractual partners will impose these obligations on their sub-suppliers accordingly.
The supplier may only advertise its business relationship with the purchaser with the purchaser’s prior written consent.

XV. Property rights

The supplier guarantees that the delivery is free of third-party rights and that neither copyrights nor industrial property rights such as e.g. violates patents, utility models, designs or third-party property rights applications and does not violate any other laws. This applies to all member states of the European Union, the other contracting states to the Agreement on the European Economic Area, Switzerland and the USA. The purchaser is not obliged to check whether third-party intellectual property rights exist.
The supplier shall, upon first request, indemnify the purchaser from all third-party claims that arise from the violation of property rights and property right registrations when the delivery items are used in accordance with the contract and reimburse the purchaser for any damage incurred as well as his costs and expenses. In particular, the supplier must compensate the purchaser for any damage resulting from a discontinuation of sales in full, i.e. including lost profits, if the purchaser has to stop selling goods as a result of a claim of the aforementioned type made against the purchaser by a third party.
If the purchaser is sued by a third party due to an alleged violation of copyrights or industrial property rights or labeling rights as well as other regulations and/or rights, the supplier shall provide the purchaser with appropriate security in the amount of the amount claimed in the action within three weeks of notification of the action being taken.
Numbers 2 and 3 above do not apply if the supplier is not responsible for the infringement. However, any legal claims of the customer remain unaffected in any case.
The contractual partners undertake to inform each other immediately if risks of injury and alleged cases of injury become known and to give themselves the opportunity to mutually counteract corresponding claims from third parties.

XVI. Asset decline

If the supplier stops making payments or if insolvency proceedings are filed against his assets or are rejected due to lack of assets, the purchaser is entitled to withdraw from the contract with regard to the unfulfilled part.

XVII. Compliance

The supplier undertakes that he and his shareholders, managing directors, supervisory and advisory boards, employees and other representatives will comply with legal regulations and, in particular, will prevent criminal and reprehensible conduct in any direction within the scope of the supplier’s business activities in connection with this contract.

XVIII. Place of performance and fulfillment, applicable law, place of jurisdiction, severability clause

The law of the Federal Republic of Germany applies exclusively. In case of doubt, the German-language version of all contractual provisions is authoritative. The Uniform Sales Laws (Convention on the International Sale of Goods, CISG) do not apply.
The place of fulfillment for payments by the customer is 72631 Aichtal. Place of performance and place of fulfillment for the supplier’s services is the place to which the goods are to be delivered or where the service is to be provided.
If the supplier is a merchant, Stuttgart is the place of jurisdiction for all disputes arising from this contractual relationship, including those regarding its creation and effectiveness, as well as for check and bill of exchange obligations. The purchaser reserves the right to sue the supplier at his general or any other justified legal place of jurisdiction.
If one of the provisions of these purchasing conditions is wholly or partially ineffective, this does not affect the validity of the remaining provisions.

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