General Conditions of Purchase of Wilhelm Layher GmbH & Co KG

General Conditions of Purchase of Wilhelm Layher GmbH & Co KG, Wilhelm Layher Verwaltungs-GmbH, Layher Steigtechnik GmbH and Layher Bautechnik GmbH

1 General, scope
1.1 These Terms of Purchase of above-named companies exclusively (hereinafter “Layher”) Terms of Purchase apply exclusively. Layher does not recognise any contrary or deviating terms of business issued by the Supplier, and such terms are hereby rejected. Layher's Terms of Purchase also apply to all future transactions, even if they are not expressly agreed again in an individual case.
These Terms of Purchase apply even if Layher accepts or pays for the Supplier's delivery without reservation whilst being aware of terms and conditions of the Supplier contrary to or deviating from Layher's Terms of Purchase.
1.2 All terms agreed upon between Layher and the Supplier with respect to the execution of contracts must be incorporated into the relevant contract in writing.
1.3 These Terms of Purchase only apply vis-a-vis enterprises within the meaning of Section 310 Para. 4 German Civil Code (BGB).
2 Conclusion of the contract, contract amendments
2.1 The Supplier is bound exclusively by the terms and scope of Layher's orders. If the Supplier fails to confirm the receipt and contents of an order to Layher in writing, without amendment, within 5 days, Layher is entitled to cancel the order. Any order confirmation deviating from the terms of Layher's order is hereby rejected.
2.2 Layher's orders are only have legal force if placed in writing in a legally valid form by authorised employees of Layher's purchasing department. The same applies to any additions, amendments or subsidiary agreements.
2.3 Any orders, additions, amendments or subsidiary agreements deviating from the above are invalid. The same applies to any such declaration made by a Layher employee not belonging to the purchasing department. Such a formal defect is not rectified by any acceptance of the Supplier's consignment by Layher.
2.4 All deviations in an offer from quantities or features specified in Layher's enquiry must be clearly marked.
2.5 Regardless of deviating offers, contracts arise exclusively on the basis of Layher's order in conjunction with these Terms of Purchase.
2.6 Offers and cost estimates remain binding for at least 5 weeks following their receipt by Layher. These and any test documentation are provided to Layher free of charge.
2.7 Layher's Technical Order and Delivery Requirements form an integral part of the contract.
2.8 Layher is entitled to cancel an order, in whole or in part, even after it has been placed. In such a case Layher must reimburse to the Supplier any expenditure incurred to date as a result of the order and is entitled to receive any goods or results of production consequent on such expenditure.
3 Prices, payment terms, set-off and retention rights, payment before expiry of the complaints deadline
3.1 The fixed price quoted in Layher's order is binding. Unless otherwise agreed in writing, the price quoted in the order includes delivery DDP (Incoterms 2010) to Layher or the destination specified by the latter and the required packing units, e.g. pallets or mesh boxes.
3.2 Layher can only process invoices and shipping documents if – as instructed in Layher's order – they bear the order and material numbers shown in that order. The Supplier is responsible for the consequences of any failure to meet this requirement, unless it can prove that it is not responsible. Layher will not make payment until it receives an invoice corresponding to its requirements and the relevant shipping documents, and this will not put it in default. Shipping documents include all of the items required by Layher's Technical Order and Delivery Requirements, e.g. factory test certificates. Payment deadlines will not begin to run until the relevant consignment, including all of the documents required, has been received / an invoice meeting Layher's requirements is delivered.
3.3 Unless otherwise agreed in writing, Layher will pay the purchase price subject to a 3% discount within 14 days following receipt of consignment and invoice or without deduction within 30 days following such receipt.
3.4 Layher is entitled to set off and retain as provided by law.
3.5 Any payment is made subject to the results of the relevant product and quantity checks at Layher. Payment before the expiry of the inspection and complaint deadlines referred to in Section 6 does not mean that Layher has checked the products or quantities delivered by the Supplier, waived its right to complain on the grounds of quality or quantity deviations or approved the shipment. Any overpayments resulting from quality or quantity deviations must be reimbursed by the Supplier.
4 Delivery, delivery time, partial call orders, quantity adjustments
4.1 The fixed delivery deadlines stated in an order or call order are binding. To meet a deadline, the goods must reach Layher or the destination specified by Layher before it expires.
4.2. The Supplier must inform Layher in writing immediately if circumstances arise or threaten to arise which will prevent the agreed delivery deadline from being met, stating the reasons and how long the problem is likely to persist. Acceptance of late delivery by Layher without reservation does not relieve the Supplier of its liabilities to Layher on the grounds of the delay.
4.3. If delivery is late, Layher is entitled to enforce its statutory rights. It is in particular entitled to damages instead of performance and cancellation either immediately if a delivery date was agreed or otherwise after waiting in vain for a reasonable period. If Layher claims damages, the Supplier is entitled to prove that it was not responsible for the breach of obligation in question.
4.4. Up to 4 weeks before a delivery date Layher is entitled to call for partial deliveries from the quantities ordered for that date. In the event of a partial call order, Layher may specify a later date for the delivery of the remainder of the consignment not taken by the original delivery date. In the case of partial call orders the interests of the Supplier must be appropriately considered.
4.5. Should business slow as a result of unforeseeable events (so-called force majeure) Layher is, until 4 weeks before a delivery date at the latest, entitled to adjust the quantities ordered to match its actual needs. In doing so the interests of the Supplier must be appropriately considered. If Layher exercises this right, the Supplier will not acquire any additional rights based on the quantity adjustment.
4.6. If the ordered quantity is exceeded or delivery is made early, Layher reserves the right to refuse delivery at the Supplier's expense or to issue the relevant invoice on the basis of the quantities needed by Layher.
4.7. Layher will pay the invoice on the basis of the weights, unit numbers and dimensions determined by the checks which it performed on its receipt of the consignment.
4.8. If Layher places call orders stating projected figures, the quantities specified will not be binding on Layher and it is not obliged to take them. The quantities actually called for and confirmed by Layher may deviate from the projections.
5 Passing of risk
The risk will pass on delivery to the destination specified in Layher's order.
6 Inspection for defects, warranty, statute of limitations, guarantee, standards applicable
6.1. Layher will only check the goods supplied by the Supplier on arrival for transport damage on the outermost packaging layer and to make sure that the numbers correspond with the information on the shipping documents. If Layher detects such an obvious defect, it must submit a complaint with 14 working days following receipt of goods; complaints based on any other, hidden defects must be submitted within 14 working days of their discovery. To this extent the Supplier waives its right to reject a complaint on the grounds of delay. Any other, more far-reaching obligations to check goods on receipt and submit complaints are hereby excluded.
6.2. Layher is entitled to enforce its statutory rights based on defects without restriction. Layher is in all cases entitled to require the Supplier either to rectify the defect or to deliver a new, perfect item, at Layher's discretion. If a single extended deadline for performance passes without result, Layher will acquire further rights, in particular to reduce the price or cancel the order and to claim damages. The right to claim damages, in particular to claim damages in place of performance, is expressly reserved.
6.3. Other than in cases of deliberate deception, the limitation period is 36 months. It begins to run on the dispatch to Layher's customer of the finished product of which the components supplied by the Supplier form part, unless any longer statutory or contractual period applies. The limitation period will cease to run during any period in which the Supplier is under an obligation pursuant to Section 6.2 to rectify defects. For replacement items/parts supplied to Layher by the Supplier to rectify deficiencies or defects, the limitation period will begin anew in each case on the date when they are supplied.
6.4. If the Supplier fails to begin work immediately to rectify defects when requested to do so by Layher, or if the first attempt by the Supplier to rectify fails, Layher is in urgent cases entitled to rectify the defect itself at the Supplier’s expense or have it rectified by a third party at the Supplier's expense.
6.5. Contractual guarantee agreements are subject to the periods agreed.
6.6. The Supplier promises that goods which it supplies will comply with all statutory requirements, specifications and guidelines, in particular those applicable within the EU.
6.7. If Layher incurs costs as a result of a defective delivery, e.g. labour, travel, installation and removal, handling or general administration costs, it is entitled to charge these to the Supplier.
7 Product liability, indemnification, product liability insurance
7.1. If the Supplier is responsible for a defect or product damage, it must on first demand indemnify Layher against any resulting third-party claims for damages insofar as the cause lay within its sphere of control and organisation, as the defect can be attributed to the Supplier or as the Supplier itself bears unlimited liability to third parties.
7.2. Pursuant to the Supplier's liability for claims as per Subsection (1), it must also reimburse all expenditures (e.g. pursuant to Sections 693, 670 BGB and Sections 930, 940, 426 BGB) resulting from or in connection with any recall campaign conducted by Layher. Layher must, insofar as possible and reasonable to expect, inform the Supplier of the nature and scope of any recall campaigns and give the Supplier an opportunity to comment.
This is without prejudice to any other statutory claims of Layher.
7.3. The Supplier undertakes to maintain product liability insurance providing cover of EUR 10 million per case of personal injury/material damage; this is without prejudice to any further claims to damages which Layher may have.
8 Execution of work
8.1. Individuals employed for the execution of a contract on Layher's factory site must comply strictly with the instructions for outside firms and hauliers at (“Use of Outside Firms”). The Supplier must inform any carriers/hauliers it employs of this. Any liability for accidents suffered by such individuals on Layher's factory site is excluded, except in cases of gross negligence or intentional breach of obligation by Layher, of liability imposed by binding statute (e.g. product liability) or of injury to life or limb.
8.2. If ladders or scaffolding are required for the work to be carried out, only Layher products may be used.
9 Supplies from Layher
Materials, parts, containers and special packaging provided by Layher remain Layher's property. Such items may only be used for Layher parts and orders. Processing of such materials and assembly of such parts is expressly carried out on Layher's behalf. Layher is the co-owner of any components stored by the Supplier and made using materials and parts supplied by Layher in proportion to the relative value of its materials and parts.
10 Tools
10.1. Tools paid for by Layher in all cases remain Layher's sole property, and the Supplier may only use them on Layher orders and parts. Tools paid for by Layher must be available to Layher in perfect condition at all times, and the Supplier must identify them clearly as Layher's property and store them separately marked.
10.2. The Supplier must at its own expense insure Layher's tools stored on the Supplier's premises against material damage. The Supplier hereby assigns all claims pursuant to this insurance to Layher.
10.3. Parts manufactured using tools belonging to Layher may not be offered or supplied to third parties, nor may the know-how be passed on.
10.4. The Supplier is exclusively responsible for maintaining and repairing these tools at its own expense. The Supplier is also exclusively responsible for the full cost of replacement tools. The product output quantity is thus unlimited.
If tools belonging to Layher are damaged by the Supplier, the latter must repair them at its own expense in accordance with the relevant drawings.
10.5. All modifications to tools must be approved in writing by Layher. Following any modification, samples must be submitted for checking and approval.
10.6. Layher will only pay tool costs after an initial sample has been checked and approved.
10.7. Following payment of tool costs, the tools concerned will be on loan from Layher. The tools will remain Layher's sole property.
11 Dangerous goods
The Supplier is solely responsible for compliance with and application of any relevant regulations on dangerous goods, including amongst other provisions the German Dangerous Goods Transportation Act (GGBefG), the German Ordinance on the Carriage of Dangerous Goods by Road, Rail, and Inland Waterways (GGVSEB) and the European Convention on the International Transport of Dangerous Goods by Road (ADR). The Supplier must inform Layher of any dangers in writing in good time.
12 Force majeure
Force majeure, breakdowns for which it is not to blame, strikes, action by a public authority and any other unavoidable events will relieve Layher of its obligation to meet its contractual obligations as long as they and their consequences persist.
13 Industrial property rights
13.1. The Supplier guarantees that no third-party rights will be breached by Layher in connection with its deliveries.
13.2. If a third party makes a claim against Layher on the basis of such a breach, the Supplier must indemnify Layher fully against the claim on first written demand.
13.3. The Supplier's obligation to indemnify covers all costs necessarily incurred by Layher as a result of or in connection with a claim by a third party.
13.4. The limitation period here is 10 years, to begin running when the contract is concluded.
13.5. Know-how acquired by the Supplier as a result of the cooperation may not be made accessible to any third party without Layher's express written consent and may not be used by the Supplier or a third party without Layher's permission. Layher's know-how is to be used exclusively to manufacture items pursuant to the relevant order and must be kept secret. Section 14 also applies.
14 Confidentiality
14.1. The Supplier must in all cases keep strictly confidential all business and technical data, records, samples, models and any other documents and all information (“confidential information”) and in its own business only grant access to them to those individuals who have to be involved for the purpose of supplying Layher and who are likewise placed under a confidentiality obligation. They may only be disclosed to third parties with Layher's express written permission. On first demand by Layher, all information, documents/records (including copies) and samples supplied by Layher must be returned to the latter in full.
14.2. This confidentiality obligation will apply both during and after the termination of this contract; it will not cease to apply unless and to the extent that the production, product, system or manufacturing knowhow conveyed by the confidential information supplied has moved into the public domain without this confidentiality obligation being breached.
14.3. The disclosure of confidential information and any supply of documents/records, samples or models does not confer on the Supplier any claims to industrial property rights, know-how or copyright and does not constitute prior publication or prior usage right within the meaning of the German Patents Act and Utility Models Act. The Supplier is only permitted to use confidential information for the purpose approved by Layher and within the framework of the agreed cooperation. At no time will the Supplier acquire rights with respect to the information. If third parties come into contact with Layher's confidential information through the Supplier, the Supplier must conclude a comparable written confidentiality agreement with them beforehand and provide evidence of this to Layher on request.
15 Data protection, security
15.1. Layher may only collect personal data from the Supplier exclusively for the contractual/business purpose for which the Supplier provides the data. Such personal data may only be used within the Layher Group.
15.2. The Supplier consents to the above and authorises Layher to process, store and analyse the data supplied in connection with the business relationship, subject to the relevant data protection rules.

15.3. The data protection declaration and additional data protection information are available on Layher's website under Privacy Policy.

16 Place of performance
Unless otherwise stated in the order, the place of performance is Layher's registered place of business, Güglingen-Eibensbach.
17 Advertising
The Supplier is not permitted to use Layher's enquiries, orders or written correspondence of any kind for advertising purposes. Advertising by reference to the business relationship with Layher is only permitted with Layher's express prior written consent.
18 Concluding terms
18.1. If the parties are full merchants as defined by German law, public law legal entities or public law special funds, the exclusive legal venue – regardless of the amount in dispute and including for proceedings relating to bills of exchange, checks and official documents – is Brackenheim Local Court (Amtsgericht), which has first instance material and geographical jurisdiction over Layher's registered place of business. However, Layher is also entitled to take legal action against the Supplier at the court responsible for the latter's place of residence/domicile or registered place of business. The same applies if the Supplier has no general legal venue in Germany or if the Supplier moves its domicile or registered place of business or usual place of residence out of Germany or if the Supplier's domicile or registered place of business or usual place of residence are unknown at the time when the complaint is filed.
18.2. The contractual relationship and these Terms of Purchase are exclusively subject to the laws of the Federal Republic of Germany, with the UN Convention on the International Sale of Goods being excluded.
18.3. If any individual provision of this contract is invalid or unenforceable or becomes so after the conclusion of the contract, this shall not affect the validity of the remainder of the contract. Any invalid or unenforceable provision must be replaced by a valid and enforceable one which comes as close as possible to achieving the same economic effects as those intended by the contracting parties when they agreed the invalid or unenforceable term. The above applies accordingly to any omission that the contract may turn out to contain.


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