General Purchasing Conditions
General Purchasing Conditions of HÜPPE GmbH, Industriestraße 3, D-26160 Bad Zwischenahn
Our purchasing conditions apply to all orders, also to future orders. General terms and conditions of the supplier do not apply.
Additional or deviating agreements and general terms and conditions of the supplier are only binding for us if we have acknowledged them.
Subject to deviating regulations, the supplier shall be bound to its offer for a minimum of 3 months. The acceptance of our orders must take place within 7 days after receipt by means of a written order confirmation.
2. Delivery item
The ordered goods are intended to be used for the production of shower systems (inter alia, shower enclosures, shower trays, shower heads and accessories) and therefore will be used for installation in the structures.
We reserve the right to request a change to the delivery item if this is necessary for production technology reasons and if the change is reasonable for the supplier. In such a case, the effects caused by the change to the performance subject matter for both parties, particularly regarding the additional costs or lower costs, as well as the delivery dates, must be adequately taken into consideration.
In the absence of a consultation with us, the supplier shall not be authorised to make changes to design, implementation, production methods or other characteristics of the goods compared to previous services of the same type, even if these characteristics are not defined by service descriptions.
We only accept partial deliveries subject to explicit agreement. For arranged partial shipments, the remaining quantity must be shown.
We will only accept the quantities or numbers of units that we have ordered. Deviations from the agreed delivery quantity are only possible after prior agreement with us.
Insofar as it has been agreed to present certificates regarding inspections of materials, these form an integral part of the delivery and shall be sent to us together with the invoices.
Delivery notes, invoices and all correspondence must contain our order number, order position and our material number.
The supplier undertakes to maintain the possibility of supplying spare parts for a period of 10 years after delivery. In the event that the supplier intends to discontinue the production of the goods or spare parts delivered to us, the supplier shall notify us of this in writing at least 12 months in advance. The supplier will provide us with the opportunity to place a last order.
3. Prices, shipping, packaging
The agreed prices are fixed prices. Costs for packaging, cargo, transport and transport insurance as far as the shipping address/place of use specified by us are included in the agreed prices.
Shipping takes place at your risk. The risk of any deterioration, including accidental loss, shall therefore remain with you under delivery to the shipping address or shipping point requested by us.
Your obligation to take back the packaging is based on the statutory provisions. If packaging is invoiced separately in an exceptional case, we are authorised to send back packaging that is in good condition carriage paid, in return for remuneration of 2/3 of the value shown in the invoice.
Invoices shall be submitted to us in duplicate with all related documentation and data after delivery has taken place in a proper form. The payment shall take place by means of a transfer or another customary commercial manner within 60 days net with a 3 % cash discount (payment in the subsequent week is sufficient for meeting the deadline) or up to 90 days net, calculated from receipt of the invoice and completed delivery/performance. With premature delivery/performance, the cash discount period shall begin to run from receipt of the invoice and upon reaching the agreed delivery date.
Insofar as advance payments have been agreed, you must provide adequate collateral, e.g. bank guarantee, at our request.
5. Delivery period
The agreed delivery periods and delivery deadlines are binding. Identifiable delivery delays must be notified to us immediately, specifying the reason and the anticipated duration. The supplier shall be liable for notifications that are omitted or late. In the case of delivery default, we are entitled to the
statutory claims. A liability exclusion of a liability limitation for the supplier is excluded. In the event of withdrawal, we can keep partial deliveries in return for a credit. In the case of recurring or long-term missed deadlines by the supplier, a cancellation right exists for us if the missed deadline is significant and it is required due to the urgency of the delivery because of a deadline commitment. In the case of acceptance delays due to force majeure and the occurrence of unforeseeable operational disruptions, which makes acceptance of the delivery considerably difficult or impossible for us, as well as with similar events, for which we are not responsible and have a significant impact on your requirements or the requirements of your buyers, for the duration of the hindrance, we are exempted from your acceptance duty; this also applies within the context of labour disputes, particularly strikes or lockouts, as well as with disruptions of railway routes or access roads. Sentence 1 also applies if hindrances occur with suppliers or buyers. If the supplier enters into default, after issuing a warning, we have the right to demand a contractual penalty of 0.5 % of the net order amount per started week, a maximum of 5 % of the net order value and/or delivery and/or withdraw from the contract. A paid contractual penalty shall be offset from a compensation claim.
Prior to expiry of the delivery date, we shall not be obligated to accept.
6. Technical rules, safety regulations, REACH
The delivery item must conform to the state of the art, unless agreed otherwise in an individual case.
The supplier undertakes to comply with and observe the European REACH Directive (EC No. 1907/2006) and to provide us with all relevant information.
7. Investigation and complaint duties
We will notify you about outstanding defects in the delivery/service no later than within two weeks after receipt of the ordered goods to the specified receiving point. If it involves hidden defects, these shall be notified within the same time limit, starting with their ascertainment.
We shall not be obligated to the supplier for any notification and inspection duties beyond those mentioned above. This particularly applies to the obligation to inspect and give notice of defects under Section 377 HGB [German Commercial Code].
8. Liability for material defects
For material defects, the delivery of different items or the delivery of a shortfall quantity, you are liable in accordance with the statutory provisions.
Regarding the limitation of action for these claims, the following is agreed:
As the goods are intended for installation in structure, the warranty period is five years, unless a shorter limitation of action period is prescribed by law.
If we were required to take back the goods from a consumer as a result of a defect to the project that has been sourced from you, or the consumer has reduced the purchase price as a consequence of this, the limitation of action for specific claims against you in §§ 478, 437 BGB [German Civil Code] shall occur no earlier than six months after the time at which we have fulfilled the consumer's claims.
This suspended expiry shall end no later than 5 1/2 years after the time at which you delivered the item to us.
For parts of the delivery that are serviced or repaired within the limitation period of our defect claims, the limitation period shall begin to run again at the time when the supplier has completely fulfilled our claims for supplemental performance.
If we take back products that we have manufactured and/or sold as a results of the defectiveness of the contractual item delivered by the supplier or if the purchase price paid to us has been reduced for this reason or if we have been claimed upon in another manner for this reason,
we reserve the right to take recourse to the supplier, whereby the setting of a time limit that is otherwise necessary for our defect rights is not required. We are authorised to demand compensation for costs from the supplier, which we were required to bear vis-a-vis our customer,
because the customer has a claim against us for compensation of the costs required for the purpose of supplementary performance, particularly transport, travel, labour and material costs.
If the same types of faults occur within our outside of the warranty period on a project with more than
5 % of the respective products delivered in a six-month period, all products from this production shall be deemed as being affected by this fault (series fault). The supplier shall bear all
of the costs related to rectification of this series fault.
The supplier undertakes to bear all costs required for the purpose of rectification of defects or supplementary performance, particularly transport, travel, labour and material costs.
9. Product liability, insurance
If we are claimed upon by third parties due to domestic or foreign product liability regulations or laws, you undertake to exempt us from the producer's liability, insofar as the cause of the liability is seen in the product delivered by you.
You will label the delivery items so that they are permanently identifiable as your products. For components that flow into our products, prior consultation about the marking is necessary.
You must perform appropriate quality assurance based on the type and scope and the state of the art and provide evidence of this upon request. Where we deem it necessary, you shall conclude a relevant quality agreement with us.
The supplier shall arrange the co-insurance of this exemption within the context of its public liability insurance with its insurer. The supplier shall exempt us from the responsibility for product damage with regard to third-party claims, if the cause lies within its field of control and organisation. The supplier undertakes to compensate costs for a recall campaign that is carried out to avoid personal injury and property damage, which has become necessary due to product defects caused by the supplier, and is therefore obligated to maintain product recall insurance with a minimum cover sum of € 2 million. Furthermore, the supplier undertakes to maintain public indemnity insurance and product indemnity insurance with a minimum cover sum of € 2 million all-in for personal injury and property damage. Contrary to § 4 (1) Clause 3 AHB [General Terms and Conditions of Liability Insurance], the cover must also extend to damages abroad. The supplier must notify us of exclusions for USA/Canada cover. The scope of this insurance must extend to the cover forms of so-called extended product liability insurance (ProdHV), including the insurance of personal injury and property damage due to the lack of guaranteed characteristics of the delivery item, Clause 4.1 ProdHV; connecting, combining and processing of the delivery products, Clause 4.2 ProdHV; further machining and processing pursuant to Clause 4.3 ProdHV; removal and installation costs pursuant to Clause 4.4 ProdHV; defective production by machines pursuant to Clause 4.5 ProdHV, as well as a clause regarding inspection and sorting costs pursuant to Clause 4.6 ProdHV. The cover sum for damages pursuant to Clause 4.1 - 4.6 ProdHV must also amount to a minimum of € 2 million. Upon request, the supplier shall provide us with a relevant confirmation from the insurer (certificate of insurance).
10. Information duty
You shall immediately inform us of all safety or liability problems regarding your products immediately after becoming aware of them.
11. Industrial property rights
The delivered goods shall be free from third-party intellectual property rights. You exempt us and our customers from third-party claims from any breaches of intellectual property rights. If you fail to fulfil a relevant request from us, we are authorised to bring about the approval for delivery, commissioning, use, onward sale etc. of the relevant delivery items and services from the authorised party at your expense.
Unless agreed otherwise, the supplier is only authorised to use our brands, commercial designations (including product presentation, packaging design or similar), copyright-protected or otherwise protected drawings to the extent that this is absolutely necessary to fulfil its obligations towards us.
12. Provision of documentation
We reserve our ownership rights and copyrights to illustrations, drawings, templates, prototypes and other documentation that we have provide to you. They are only permitted to be used for processing the offer and for performing the ordered delivery. They are not permitted to be disclosed to third parties without our explicit consent. Upon request, they shall immediately be returned to us after handling our enquiry/after performing the ordered delivery. The non-disclosure duty shall also apply after processing this contract; it shall lapse if and insofar as the production know-how in the provided illustrations, drawings, calculations and other documentation has become public knowledge. You must examine drawings, descriptions etc. that belong to the order for any discrepancies and immediately notify us about discovered or suspected faults.
Changes to our documentation that has been provided to you may only be made with our consent.
13. Provision of material, reservation of ownership
Parts and materials provided by use shall remain our property. Processing or transformation by you shall be carried out on our behalf. If parts or materials that have been provided by us are processed or combined with items that do not belong to us, we shall acquire the co-ownership of the new item in the proportion of the value of the respective parts/materials to the other processed or combined items at the time of processing or combining.
However, if your item is regarded as a main item, you shall transfer the proportional co-ownership to us.
You are not authorised to use the provided parts and materials for purposes other than those specified by us. In particular, you are not authorised to use the parts or materials or transfer them to third parties.
We shall not acknowledge any expansion or extension of the reservation of ownership, which goes beyond the supplier's basic reservation of ownership to the unprocessed supplier product that is stored with us, particularly after processing, connecting or combining with other goods, as well as
after selling the supplier product.
The assumption of tool costs by us shall be agreed separately. The one-off tool price contains all of the production costs, including any corrective measures and sampling. The price covers all costs for maintenance, care and insurance of the tool, as long as the relevant finished part is required by us.
The tool shall transfer into our ownership with the payment. The tool shall remain in your safekeeping. You undertake to permanently mark the tool as our property and handle it accordingly. The tools are only permitted to be used for our orders.
We are authorised at any time to take possession of our tool, unless the tool continues to be urgently needed for the implementation of the order placed with you.
You can only set off with undisputed or legally established claims.
You are only permitted to assign rights and claims under this contract to third parties with our consent.
17. Business secrets
The supplier undertakes to treat our orders and all related commercial and technical details as business secrets. The supplier is obligated to maintain non-disclosure regarding the documentation and information, even after processing this contract.
Disclosure towards third parties may only take place with our written consent.
18. Place of performance
Unless explicitly agreed otherwise, the place of performance for the delivery obligation is our requested shipping address/place of use, for all other obligations, both parts:
Industriestraße 3, D-26160 Bad Zwischenahn.
19. Applicable law, legal jurisdiction
For all legal issues between the supplier and us, even if its registered office is abroad, the law of the Federal Republic of Germany exclusively applies, to the exclusion of conflict of laws and the UN Convention on Contracts for the International Sale of Goods (CISG).
For contracts with suppliers that have their registered office in Member States of the European Union, Westerstede (Germany) is agreed as the exclusive legal jurisdiction. For contracts with suppliers that have their registered office outside of the European Union, all disputes that cannot be amicably settled, shall be finally decided in accordance with the Arbitration Code of Deutsche Institution für Schiedsgerichtsbarkeit e.V. Bonn (DIS), to the exclusion of ordinary legal proceedings. The arbitration court can also decide on the validity of this arbitration court agreement.
20. Masco Corporation Supplier Business Practices Policy
The supplier guarantees to comply with the "Masco Corporation Supplier Business Practices Policy".
21. Final provisions
If a provision of these conditions should be legally invalid, this shall not affect the validity of the remaining provisions. Invalid provisions shall be reinterpreted, so that the intended economic purpose can be achieve with this provision.
Processing status: February 2013