General Purchasing Conditions
- GENERAL CONDITIONS
The following terms and conditions shall apply exclusively to all purchases made by MMC Hartmetall GmbH („MHG“) from entrepreneurs within the meaning of §§ 12, 310 para. 1 BGB (German Civil Code). Terms and conditions of the supplier shall not apply, even if MHG does not separately object to their validity. Any terms and conditions of the supplier conflicting with or deviating from these terms and conditions shall not be accepted. Deviations from these terms and conditions shall only become an effective part of the contract if they are agreed individually.
- CONCLUSION OF CONTRACT
Orders placed by MHG are to be understood as binding offers within the meaning of § 145 BGB (German Civil Code), unless expressly marked or agreed otherwise. Consequently, a legally binding contract shall only be concluded with the (express or tacit) consent of the supplier. After receipt of the order, the supplier undertakes to send MHG an order confirmation within 7 days. If he does not respond within the 7-day period, the order shall be deemed withdrawn. The supplier undertakes to comply with the conditions and specifications according to the order. In case of doubt, further correspondence (non-binding offers, negotiations, catalogs, websites, etc.) shall be used for the interpretation of the contract.
Agreed delivery dates/periods are binding. Impending delays have to be communicated to MHG immediately. However, the fulfillment of the obligation to notify does not reduce the liability for damages caused by delay. Partial deliveries are only permissible if MHG has agreed to them in individual cases. A change of the agreed delivery date is only possible by mutual agreement. MHG is not obliged to accept deliveries arriving before the agreed date.
- DELAY IN DELIVERY
If the supplier is culpably in default of delivery, a contractual penalty of 0.2% of the gross order value per commenced working day shall become due (but not more than a total of 5% of the gross order value). This contractual penalty can be set off against outstanding invoice amounts of MHG with the supplier. The right of MHG to assert further claims for damages remains unaffected. In this case, a due contractual penalty shall be offset against the claim for damages. The receipt of the goods at the agreed place shall be decisive for the compliance with the delivery date or the delivery period. Unless otherwise agreed, the terms of delivery shall be DDP Incoterms 2020 (to the address specified by MHG).
- OBLIGATION TO EXAMINE AND TO GIVE NOTICE OF DEFECTS
MHG is subject to the legal obligation to examine the goods and to give notice of defects according to § 377 HGB (German Commercial Code). If the goods are delivered in larger quantities, random samples shall suffice. Notification of defects to the supplier must be made within two working days after receipt or after the required inspection of the goods for obvious defects and within 10 working days after discovery of the defect for hidden defects.
The statutory provisions on warranty shall apply mutatis mutandis, with the proviso that the right to withdraw from the contract after unsuccessful subsequent performance shall also apply in the event of an only insignificant breach of duty by the Supplier. Already after one unsuccessful subsequent performance MHG may withdraw from the contract according to § 323 BGB or reduce the purchase price according to § 441 BGB.
- INTELLECTUAL PROPERTY RIGHTS
The supplier shall ensure that the products do not infringe any third party rights (in particular patent rights, utility model rights, copyrights, design rights and trademark rights). If the products infringe such rights and if the supplier is responsible for such infringement, he undertakes to indemnify MHG against all resulting claims and claims for damages as well as against the costs of legal defense in an appropriate amount against proof.
- LIABILITY, INDEMNIFICATION
The statutory provisions on liability for breach of duty and other damages arising from and in connection with the contractual relationship shall apply. In case of a product defect within the meaning of the ProdHaftG (German Product Liability Act), the supplier shall be obliged to indemnify MHG from any resulting claims and claims for damages as well as from the costs of legal defense in an appropriate amount against proof.
- LIMITATION OF LIABILITY
With the exception of claims pursuant to Sections 4, 6, 7 and 10 as well as claims for indemnification pursuant to Section 8 Sentence 2, the parties shall not be liable for lost profits, opportunities or revenues and/or indirect damages, consequential damages or incidental damages and/or comparable damages arising out of or in connection with the contract, unless such damages arise from gross negligence or intentional conduct or result from injury to life, body or health.
- RECYCLING SERVICE
Within the scope of the recycling service, MHG may agree with the supplier to provide collection boxes for drills, milling cutters and indexable inserts upon request. The collection boxes remain the property of MHG. In case of loss of the collection boxes, MHG reserves the right to charge for them. After filling the collection box(es), the supplier declares its readiness for the shipment of the recyclables by means of a collection form. MHG declares its acceptance of the order by means of a confirmation in text form. Depending on what has been agreed with the supplier MHG commissions a transporter with the collection from the supplier. The specified maximum filling quantities of the collection boxes must be adhered to. If the maximum filling quantity is exceeded, the carrier is entitled to refuse the shipment or to charge additional costs, which will be passed on to the supplier. Only hard metal recyclables will be purchased. If there are other materials (e.g. copper, steels or hazardous materials) in the collection boxes, these will be disposed of in a professional and environmentally friendly manner, but will not be reimbursed. The resulting (additional) costs will be charged to the supplier. The incoming recyclables are analyzed and weighed after their arrival. The total weight is rounded to full kilograms. The agreed purchase price is the price valid at the time of receipt of the collection order by MHG or the arrival of the recyclables at the destination advised by MHG. In the event of an adjustment of the purchase prices, the supplier will be informed in good time in advance. Payment will be made within 2 weeks from the date of collection of the recyclables by way of a credit note, in case MHG commissions the transport, or the arrival of the recyclables at the destination indicated by MHG, in case the supplier organizes the transport. Two payment methods are offered:
a) The credit note amount will be offset against open invoices or against future payment obligations from tool deliveries. If there is no possibility of offsetting (no open invoices/no new orders), the credit amount will be paid out after 12 months.
b) „Cash Back“: Provided that there are no open invoices in reminder stage, the credit amount will be paid out net within 30 days.
The supplier‘s invoices will be paid with a target of 14 days 3% discount, 30 days net after receipt of invoice.
- PROHIBITION OF ASSIGNMENT
The supplier is not entitled to assign his claims against MHG without the written consent of MHG, which may only be refused for factual reasons.
The contracting parties undertake to keep confidential information secret from each other during the contractual cooperation and beyond. Confidential information in this sense shall be information within the meaning of § 2 No. 1 GeschGehG (German Trade Secrets Act; this includes in particular technical information on products, design, pricing as well as information of any kind from customers/sub-suppliers of the parties). However, the confidentiality obligation shall not apply to confidential information which may be obtained, used and disclosed pursuant to § 3 GeschGehG. The receiving party shall be responsible for proving the existence of the respective exception. The contracting parties may only use the confidential information of which they become aware and/or make it accessible to third parties with the consent in writing or text form of the respective other party. The companies affiliated with the contracting parties pursuant to §§ 15 et seq. AktG (German Stock Corporation Act) shall not be deemed to be third parties in this sense. In the event of breaches of the duty of confidentiality, the parties shall only be liable for damage typical of the contract and reasonably foreseeable. This limitation shall not apply in case of intent or gross negligence.
Upon MHG‘s request, the Supplier shall inform MHG in writing of all ingredients used in the Products. The Supplier shall ensure that all specifications and other requirements are feasible. The Supplier agrees to inform MHG of any export and re-export restrictions and regulations, as well as the „Export Control Classification Number“ (ECCN) of products.
- SELLING PRICES
Selling prices are net amounts excluding sales tax. They include the cost of packaging, labeling and barcoding, as well as any necessary protective measures to prevent damage to the products during transportation or storage.
MHG‘s packaging specifications are binding on the Supplier. He agrees to indemnify MHG for damages resulting from improper packaging or inadequate protective measures.
- ENVIRONMENT AND COMPLIANCE WITH LAWS
Supplier agrees to comply with all laws pertaining to the environment.
- PROPERTY OF MHG
All drawings, technical documents, tooling, data, software and other materials provided to the supplier by MHG shall remain the property (physical and intellectual) of MHG. The supplier shall only be entitled to use these materials in any manner whatsoever if MHG has given its express written consent.
MHG reserves the right, either itself or through a third party bound to secrecy and acceptable to the Supplier, to inspect the Supplier‘s manufacturing facility and quality control procedures during normal business hours and upon timely prior notice to the Supplier to ensure compliance with specifications, manufacturing process, MHG requirements and other standard industry practices and procedures. The Supplier shall assist MHG in this regard to the best of its ability. MHG will ensure that the Supplier‘s business operations are disrupted as little as possible by the on-site activity. The costs of the inspection shall be borne by MHG. MHG may exercise this right in case of justified assumption of violations. Irrespective of this, MHG may exercise this right max. twice a year.
- OTHER PROVISIONS
Should any provision of these General Purchasing Conditions prove to be invalid or unenforceable in whole or in part, the validity of the other provisions and the remaining part of the affected provision shall not be affected thereby. The place of jurisdiction for any disputes arising from or in connection with the contract shall be the registered office of MHG. However, each party to the contract is also entitled to sue the other party at its general place of jurisdiction. The contract shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods. The latest version of these General Purchasing Conditions can be found at www.mmc-hardmetal.com/eu/gpc. The German version (to be found at www.mmc.hardmetal.com/de/aeb) shall prevail before the English one, which is to be regarded as a courtesy translation.