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General Terms and Conditions of Purchase


§ 1     General Provisions

§1.1   Any deliveries, services and offers of our suppliers are exclusively carried out based on these General Terms and Conditions of Purchase (AEB). They are an integral part of any contracts we enter into with our suppliers regarding the deliveries or services they offer. These General Terms and Conditions of Purchase shall apply to all future deliveries, services, or offers, even without a separate agreement.

§1.2   The general terms and conditions of our suppliers or of third parties shall not apply, even if we do not object to their application in the individual case. Answers to letters containing the general terms and conditions of suppliers or third parties or making reference to such general terms and conditions shall not be understood as an approval of their validity.

§1.3    Any individual understandings with suppliers (including subsidiary agreements, additions, and amendments) shall prevail over these General Terms and Conditions of Purchase. Subject to rebuttal, the content of such understanding shall be proven by means of a written agreement or by our written confirmation.

§ 2     Conclusion of contract

§2.1   Any orders or contracts are considered to be binding if they are made or have been confirmed in writing. Unless otherwise agreed, the offer is subject to acceptance within 14 days.

§2.2   We have the right to withdraw from the contract or to terminate the contract at any time in writing, stating the reason for such withdrawal or termination if the products ordered can no longer be used for our business operations due to any circumstances attributable to the supplier arising after the conclusion of the contract (such as failure to comply with statutory requirements) or if such products can only be used at considerable expense or if the supplier’s financial situation worsens after the conclusion of the contract to such extent that delivery as stipulated in the contract can no longer be expected.

§ 3     Delivery period and default in delivery

§3.1   Any deadlines or dates for delivery stated in the respective order are considered to be binding. The supplier undertakes to promptly notify us as soon as it can be foreseen that agreed delivery periods cannot be met - for whatever reason.

§3.2   If a supplier does not perform within the agreed delivery period or not at all, or if he is in default, our rights, including, but not limited to withdrawal from the contract and damages, shall be based on the statutory provisions.

§ 4    Performance, delivery, transfer of risk, default of acceptance

§4.1  The supplier undertakes to ensure that the goods comply with the submitted functional specification, applicable norms and the state of the art. The supplier shall verify such compliance based on the drawings and/or checklists before delivery.

§4.2  The contractor shall separately provide banke GmbH with complete technical documentation regarding the object of delivery free of charge. The contractor undertakes to provide banke GmbH with any manuals and documents required for the operation, assembly, maintenance, cleaning, and repair of the object of delivery free of charge, in particular with any spare part lists and certificates of origin. The contractor shall attach to the object of delivery and at his own expense an original manual and a maintenance manual for technical staff, as well user documentation for application software, program documentation for system and system related software, and product development documentation for any software development being object to the contract; such documents must be provided in German and English, and in the language used in the destination country / country of use, if requested by banke GmbH. The documentation owed by the contractor must be provided to banke GmbH in electronic form according to the applicable norms.

§4.3   Delivery within Germany shall be carried out “free purchaser’s address” to the place stated in the order. Unless any other place of fulfillment was stated and unless otherwise agreed, delivery must be made to our registered office in Taufkirchen. The respective place of fulfillment shall also be the place for delivery and any supplementary performance that may be required (debt to be discharged at creditor’s domicile).

§4.4   The risks of accidental loss and accidental deterioration of the object of delivery are transferred to us upon delivery at the place of fulfillment. If acceptance has been agreed, such acceptance shall be decisive for the transfer of risk. Furthermore, in case of an acceptance, the statutory provisions of the law on contracts to produce a work shall apply correspondingly. It shall be the equivalent of handover or acceptance if we are in default of acceptance

§4.5   The beginning of our default of acceptance shall be subject to the statutory provisions. The supplier shall also expressly offer his performance to us if a determined or determinable calendar time has been agreed for an action or cooperation on our part (e.g. provision of material).

If we are in default of acceptance, the supplier may request reimbursement of his additional expenditures according to the statutory provisions (Section 304 of the German Civil Code). If the contract relates to non-fungible goods to be produced by the supplier (product made to specification), the supplier shall only have further rights, if we have agreed to cooperate and if we are responsible for the failure to cooperate.

§ 5     Prices and terms of payment

§5.1  The agreed prices are maximum prices; we shall benefit from any discounts between the placement of the order and payment of the invoice. All prices are to be understood including the statutory value added tax, unless such tax is separately accounted for.

§5.2   Unless otherwise agreed in the individual case, the price contains any services and ancillary services of the supplier (e.g. assembly, installation), as well as any additional costs (e.g. proper packaging, transport costs, including transport and liability insurance, if applicable).

§5.3   Our order number, the item number, delivered quantity, and address of delivery shall be stated on any confirmations of order, shipping documents and invoices.

§5.4   Invoices are payable within 14 days less 3 % early payment discount, or within 30 days net cash as from the date of billing.

§5.5   We do not accept any interest on maturity. In case of default of payment, we shall pay interest for delay amounting to 5 percentage points over the base interest rate according to Section 247 of the German Civil Code.

§5.6   We shall have the rights to set-off and retention of title, and the right to put forward a defense for non-compliance to the contract within the limits of the statutory regulations. In particular, we are entitled to withhold any due payments, as long as we still have claims against the supplier arising from incomplete or deficient performance.

§5.7   The supplier shall only have the right to set-off or the right of retention for any claims determined without any further legal recourse or in case of uncontended counterclaims.

§ 6     Warranty

§6.1  Unless otherwise agreed in the following, relating to our rights in case of material defects and defects of title (including wrong delivery, inappropriate assembly, deficient assembly instructions, operating manual, or user manual), and in case of other violations of duty by the supplier, the statutory provisions shall apply.

§6.2   According to the statutory provisions, the supplier shall especially ensure that the object of delivery has the agreed quality at the time of transfer of risk to us. Any product descriptions which are an integral part of the respective contract, or which were included in the contract in the same way as these General Terms and Conditions of Purchase shall be considered as an agreement regarding quality - especially such product descriptions which were mentioned or referred to in our order. It is of no significance whether the product description was created by us, the supplier, or the manufacturer.

§6.3   At the time of conclusion of the contract, we are not shall not have to inspect the object of delivery or to ask specific questions about possible defects. Partly deviating from Section 442 para 1 sentence 2 of the German Civil Code, we shall, thus, have unrestricted claims for defects if we did not learn about a defect at the time of conclusion of the contract due to gross negligence.

§6.4   The statutory provisions regarding the commercial obligations to inspect and to give notice of defects (Sections 377, and 381 of the German Commercial Code) shall apply in accordance with the following: Our obligation to inspect shall be limited to any defects which are identified by means of visible inspection within the course of our incoming goods control, including the shipping documents (e.g. damage in transit, wrong or short delivery), or which can be identified by means of a sampling method within the course of our quality check. The obligation to inspect shall be obsolete if acceptance has been agreed. Furthermore, it depends on the extent to which an inspection is possible due to proper business routine considering the individual circumstances. Our obligation to report defects identified at a later point in time shall remain unaffected. Notwithstanding our obligation to inspect, our complaint (notification of defects) shall be considered to be immediate and timely if it has been made within 7 weekdays after identification of the defect, or within 7 weekdays after delivery, in case of apparent defects.

§6.5   Supplementary performance shall also include the removal of the defective goods and renewed installation, if the goods have been installed into or attached to another item according to their nature and intended use; our statutory right to claim compensation for any corresponding expenditures shall remain unaffected. Any expenditures incurred for inspection and supplementary performance shall be borne by the supplier, even if it turns out that there was no actual defect. Our liability for damages arising from an unjustified request for the removal of defects shall remain unaffected; in this respect, we shall only be liable if we stated that there was no defect or if we did not recognize that there was no defect due to gross negligence.

§6.6   Notwithstanding our statutory rights and the provisions of Section 6.5, the following applies: If the supplier fails to meet his obligation to carry out supplementary performance - at our option either by removal of the defect (rework) or by delivery of defect-free goods (replacement delivery) - within an appropriate deadline we have set, we have the right to remove the defect on our own, and to claim the reimbursement of any necessary expenditures from the supplier or request him to make an appropriate advance payment. A deadline is not required if the supplier failed to provide supplementary performance or if such supplementary performance is unreasonable for us (e.g. due to exceptional urgency, risks to operating safety or imminent occurrence of disproportionate damages); we shall immediately inform the supplier about such circumstances, if possible, before carrying out any works.

§6.7   Furthermore, we have the right to reduce the purchase price or to withdraw from the contract according to the statutory provisions in case of any material defects and defects of title. We shall also have the right to compensation of damages and reimbursement of expenses according to the statutory provisions.

§6.8   The warranty period is 36 months as from delivery to the place of fulfillment.

§ 7      Claims to recourse against suppliers

§7.1  In addition to the claims for defects, we shall also have the unrestricted right to claims to recourse within a supply chain (claims to recourse against suppliers according to Sections 445a, 445b, and 478 of the German Civil Code). In particular, we are entitled to request the supplier to perform such way of supplementary performance (rework or replacement delivery) we owe to our client in the individual case. This shall not restrict our statutory right to choose (Section 439 para 1 of the German Civil Code).

§7.2   We shall notify the supplier and ask for a written statement according to a short description of the case, before we accept or remedy any claims for defects asserted by our client (including compensation for expenses according to Sections 445a para 1, 439 para 2 and 3 of the German Civil Code). If no substantiated statement is provided within an appropriate deadline, and if there is no amicable solution, the claims for defects actually granted to our client shall be deemed to be owed. In this case, the supplier shall be responsible for providing counterevidence.

§7.3   Our claims from recourse against suppliers shall also apply if any deficient goods were processed by ourselves or another business, e.g. by installation into another product.

§ 8       Liability of the manufacturer

§8.1  If the supplier is responsible for any product damage, we shall be indemnified against claims by third parties to the extent that the cause lies within the supplier’s control and organization, and that he himself is liable in relation to third parties.

§8.2   Within the scope of his indemnification obligation, the supplier shall reimburse any expenses according to Sections 683 and 670 of the German Civil Code arising from making use of third parties, including any product recalls we may have carried out.

We shall inform the supplier about the content and scope of any product recalls if possible and to the extent appropriate and shall give him the opportunity to respond. Any further statutory claims shall remain unaffected.

§8.3   The suppliers shall take out and maintain product liability insurance with a limit of liability of at least EUR 5 million per case of damage to persons / property.

§ 9       Non-disclosure and retention of title

§9.1    We reserve the rights of retention and copyrights in any drawings, samples, manufacturing instructions, in-house data, tools, equipment, etc., which we provided to the supplier for the purpose of making an offer or carrying out an order. Such documentation shall be exclusively used for the contractual performance and be returned to us after settlement of the contract. The documentation shall not be disclosed to third parties, even after termination of the contract. The non-disclosure obligation shall only expire if and to the extent to which the information contained in such documentation has become generally known.

§9.2    Any processing, mingling or conjunction (further processing) provided by the supplier shall be carried out on our behalf. The same applies to any further processing of the goods delivered by us, making us be considered as the manufacturer and so that we shall acquire property of the product according to the statutory provisions with further processing at the latest.

§9.3    The assignment of the goods to us shall be made unconditionally and irrespective of the payment of the purchase price. However, if we accept an offer of the supplier stating that the assignment of goods is subject to the payment of the purchase price, retention of title of the supplier shall expire at the time of payment of the purchase price for the goods delivered at the latest. In the orderly course of business, we shall have the right to resell the goods before payment of the purchase price if we assign the claims resulting therefrom in advance (alternatively, extended retention of title shall also apply to the resale). In any case, this excludes any other forms of retention of title, including, but not limited to extended and assigned retention of title and retention of title extended to processing.

§ 10    Liability insurance for construction and assembly services

The supplier shall underwrite and maintain a liability insurance policy covering any damages that may arise in relation to the execution of the order, including any damages occurring while the insured object is entrusted to the supplier’s care and occurring during the supplier’s activity within the meaning of Section 4 I 6a and b of the General Conditions of Insurance for Liability Insurance (AHB); the type and scope of the order shall be considered in the limit of liability, which shall be EURO 5 million per individual case of damage to persons or property.

§ 11     Trademark rights of third parties

The supplier ensures that the rights of third parties are not opposed to the intended use of the delivered goods, in particular that there is no infringement of the trademark rights of third parties. If we are still held liable due to a possible violation of third-party rights, e.g. copyrights, patent rights and other trademark rights, the supplier shall keep us indemnified from such claims, as well as from any performance relating thereto.

§ 12     Data protection

The supplier declares his revokable consent to the order-related processing of any personal data provided in compliance with the statutory provisions.

§ 13     Choice of law and place of jurisdiction

§13.1   German law shall apply exclusively, whereas international uniform law, especially the UN Convention on Contracts for the International Sale of Goods (CISG), is excluded.

§13.2   The exclusive place of jurisdiction shall be Munich, Germany.