Erfurt & Sohn KG (AEB)
We are only willing to enter into agreements under the following terms and conditions.
These General Terms and Conditions of Purchase (hereinafter referred to as “Ts&Cs”) only apply, if the supplier is an entrepreneur (Section 14 BGB [German Civil Code]), a legal person under public law or a special fund under public law.
Erfurt & Sohn KG does not acknowledge terms and conditions of business conflicting with or deviating from these Ts&Cs.
The above provision also applies if Erfurt & Sohn KG does not expressly object to an order confirmation, which is based on terms and conditions of business conflicting with or deviating from these Ts&Cs. Terms and conditions of business conflicting with these Ts&Cs are also not acknowledged, if Erfurt & Sohn KG accepts a delivery or pays the purchase price without reservations. Conflicting terms and conditions of business only apply, if Erfurt & Sohn KG expressly confirmed the applicability of such terms and conditions in writing.
These Ts&Cs as amended, also apply as the framework agreement to future agreements for the sale and delivery of movable goods with the same supplier, without German Erfurt & Sohn KG being required to refer to these Ts&Cs in each individual case.
Erfurt & Sohn KG reserves the right to amend or modify these Ts&Cs. Agreements are subject to the applicable Ts&Cs on the agreement date. Should these Ts&Cs of Erfurt & Sohn KG be amended or modified, Erfurt & Sohn KG will make suppliers, with which it maintains business relationships, aware of the amended version.
Individual arrangements with the supplier take precedence over these Ts&Cs in any case (including side agreements, supplements and amendments). A written agreement or a written confirmation by Erfurt & Sohn KG is decisive for the content of such arrangements.
We prefer energy-efficient solutions according to DIN ISO 50001 and we take this fact into account when selecting suppliers and offers.
Orders are only binding, if they are placed by using our properly signed order form. Any additional arrangements and commitments will be provided for in the individual case by special agreements in writing.
Prior to order acceptance, the supplier is obligated to make us aware of any obvious mistakes (e.g. typos or calculation errors) and incompleteness of the order, including associated order documents, so that we can correct or complete such mistakes or incompleteness. Failing to do so renders the agreement void.
2. Order Confirmations, Release, Delivery Notes, Invoices
a) The order confirmation must include exact prices, delivery date, order number, delivery quantity, article number and supplier number. If, within 5 working days after receipt of our order, the supplier does not accept our order in writing or by sending the goods, acceptance is considered to be late. Late order acceptance is deemed to be a new offer and requires acceptance by us. We will describe in detail the services and products to be provided under the agreement by providing as specific information as possible as to quality, dimensions etc. The supplier will promptly contact us, if the supplier is in doubt regarding any details of the services and products to be provided under the agreement. Deviations from the specifications provided by us are only permitted to the extent they are approved by us in writing.
b) Release. If outturn samples or release samples are requested from Erfurt & Sohn KG prior to production, series production may only commence after the sample is approved in writing.
c) A delivery note must be enclosed with each delivery. The delivery note must at a minimum contain the following information: Order number, article number, supplier number, delivery address, delivery quantity.
If delivery notes are not completed as requested, Erfurt & Sohn KG reserves the right to reduce the invoice value by 3 %.
d) All invoices are to be issued as a single original. Invoices must contain order number article, item and supplier number to facilitate electronic data collection of the invoice. Invoices that are not compliant with the above provision will be returned without any claims for late payment being created. The cash discount agreed between Erfurt & Sohn KG and the supplier must also be shown on the invoices. Furthermore, the respective VAT-ID number must generally be provided. In the case of imports also the VAT-ID number of Erfurt & Sohn KG (DE126450114).
e) Invoices are settled on the 15th day of the month following receipt of invoice under deduction of 3 % cash discount.
f) Settlement of invoices is made using payment methods at the option of Erfurt & Sohn KG. This also applies to payments by check and bills, as well as acceptance.
g) Erfurt & Sohn KG has the unrestricted right to set-off and right of retention within the scope of the statutory provisions.
3. Delivery dates / Default
a) If the ordering party specifies delivery dates in the order form, the supplier is obligated to exactly meet such dates. The delivery period begins on the date of the order form. Delivery periods or dates are met, if the goods reach our warehouse or the agreed place of performance within the set deadline.
b) If the supplier is in default of delivery, Erfurt & Sohn KG is entitled to all available statutory rights and claims. Erfurt & Sohn KG has, in addition, the right to demand payment of 1 % of the delivery value (invoice net amount excluding VAT) as compensation for the delay for each week or part thereof the supplier is in default of delivery. The compensation may, however, not exceed in total 5 % of the delayed delivered goods’ net price. We reserve the right to furnish proof that we suffered greater damage. The supplier may, however, furnish proof that we suffered no damage at all or only a significantly lesser damage from the default.
c) If the supplier is in delay of performance, Erfurt & Sohn KG has also the right to set a reasonable grace period for the supplier in conjunction with a warning that Erfurt & Sohn KG will reject performance of the agreement after the set period expired without success. Thereafter, Erfurt & Sohn KG has the right to demand damages for non-performance or withdraw from the agreement. Additional statutory damage claims remain unaffected.
d) The supplier is obligated to promptly inform Erfurt & Sohn KG, if the supplier can foresee circumstances under which the supplier cannot meet the set delivery deadline. In this case, the supplier is also obligated to communicate at the same time a reasonable, near-term and binding delivery date. The obligation to meet the initially agreed dates remains unaffected.
e) We are authorized to change time and location of a delivery, as well as type of packaging, at any time by written notice with a minimum period of 5 calendar days prior to the agreed delivery date. The same applies to changes of product specifications, provided such changes can be applied within the supplier’s normal production process without significant additional efforts, whereby in these cases the notice period after the above sentence is 5 calendar days at a minimum. We will reimburse the supplier for any demonstrated reasonable additional costs, the supplier incurred due to the requested change. If such changes cause delays in delivery that cannot be avoided within the normal course of production and business operations using reasonable efforts, the initially agreed delivery date is deferred accordingly. The supplier will notify us timely in writing prior to the delivery date of the expected additional costs or delays in delivery based on the supplier’s due assessment, however, at a minimum within 2 working days after receipt of our notification according to sentence 1.
f) The supplier may only claim failure of delivery of necessary documents to be provided by us, if the supplier did not receive these documents within a reasonable period in spite of a timely request by the supplier in writing.
4. Pricing, Shipment and Passing of the Risk, Default in Acceptance
a) Prices are fixed prices. All agreed contractual provisions must be Incoterms compliant. The Incoterms version in force on the order date applies. Delivery is “DDP” (delivery duty paid, including all payable fees), including packaging. The supplier may only exercise a right to offset or a right of retention in the case of uncontested counterclaims or counterclaims recognized by declaratory judgment. Payments do not represent an acknowledgment that the delivery of goods or the provision of services is in compliance with the agreement. General price increases until the delivery date can only be applied if they are expressly provided for in the agreement.
b) The supplier also bears transportation insurance costs. Packaging material that is subject to return must be credited in full. We will return packaging materials carriage forward. The supplier is obligated to accept returned packaging according to Section 4 et seq. German Packaging Ordinance. In the case of recurring delivery relationships, return of packaging may be accomplished with next delivery. Any deviations from the above provisions require a separate arrangement.
c) Notwithstanding the agreed delivery terms, the risk of accidental loss is borne by our contracting party until we assume the goods at the delivery location. Delivery is to be made to our place of business in Wuppertal, if a delivery location is not provided and we did not agree otherwise.
d) We have the right to reject over or under deliveries that are not contractually agreed. The same applies if the goods are delivered before the agreed delivery date. We have the right to return the goods at the risk and expense of the supplier or to store the goods at a third party.
e) The supplier is obligated to specify our order number on all delivery papers and delivery notes. If the supplier fails to do so, we are not responsible for any processing delays.
f) The supplier is obligated to inform us in writing of the shipment date prior to goods shipment.
g) The statutory provisions apply to our default in acceptance. The supplier is, however, obligated to expressly offer its services to us in such case, if a fixed or definable calendar date/time is agreed for an act or cooperation on the part of us (e.g. provision of material). In the event we are in default in acceptance, the supplier may demand compensation for its additional expenses (Section 304 German Civil Code [BGB]). If the supplier is obligated to create a custom-built, non-fungible good (individual production) under an agreement, the supplier is only entitled to additional rights, if we undertook to cooperate and we are responsible for the failure to cooperate.
h) Erfurt & Sohn KG is RVS/SVS self-insured.
5. Goods Receipt
Goods are only accepted during customary business hours of Erfurt & Sohn KG: Monday through Thursday from 7:00 am through 3:00 pm and Friday from 7:00 am through 2:00 pm.
Please plan for waiting times during the breaks from 12:30 pm through 1:15 pm.
6. Obligation to give notice of defects/Complaints
a) We are obligated to inspect the goods within a reasonable period regarding non-compliance with quality and quantity specifications. A notice of defects is given timely, if the supplier receives the notice within 5 working days from goods receipt or in the case of hidden defects from discovery. The statutory provisions (Sections 377, 381 German Commercial Code [HGB]) apply to the commercial duty to inspect and to give notice of defects as follows: Our duty to inspect is limited to defects, which are apparent by visual inspection, including shipping documents, as well as our quality control by way of random sample tests (e.g. transport damages, shipping errors and under delivery). The duty to inspect does not apply, if acceptance of the delivered goods is agreed. Otherwise, the extent to which an inspection is feasible and possible must be taken into account according to the proper course of business and under consideration of the individual circumstances.
b) In the case of major quantities, inspection of goods is limited to random sample tests. Defects that are not discovered during this procedure are considered to be hidden defects. If a random sample test shows that the defects of a delivery exceed the agreed figures (AQL, PPM), Erfurt & Sohn KG has the right to assert warranty claims for the delivery as a whole.
c) The above provisions also apply to over or under deliveries; they also apply to the delivery of other goods, but acceptable goods in terms of Section 377 German Commercial Code [HGB]. In the case of bulk articles a tolerance of ±5% is permitted.
d) If Erfurt & Sohn KG concluded a quality management agreement with the supplier to ensure the quality of deliveries the above provisions a) through c) only apply insofar as deviating provisions were not agreed in the quality management agreement.
a) The statutory warranty and limitation periods apply.
b) In the case of a defect, Erfurt & Sohn KG is, at its option, entitled to the statutory rights. In particular, Erfurt & Sohn KG is authorised:
b.a) to return the defective goods at the supplier’s expense and risk and demand replacement free from defects or to waive replacement and back-charge the goods’ invoice value or to demand damages for non-performance or
b.b) we may perform or have third parties engaged by us perform, measures without prior coordination to remedy minor defects or to prevent disproportionate major damages or to avoid risks to operational safety at our site or our customers’ sites at their expense. We will promptly inform you of reasons, type and scope of such measures.
c) The supplier guarantees that the use of the services and products under the agreement does not infringe upon intellectual property right of third parties (e.g. patents, patent applications, utility models, design patents, copyrights), as well as business secrets of third parties.
Erfurt & Sohn KG has also a claim to the aforementioned rights, if the supplier is in default with the remedy of a defect and is responsible for the defect. If we are held liable nevertheless, the supplier is obligated to indemnify us from and against such claims on first demand in writing.
8. Product Liability
The supplier indemnifies Erfurt & Sohn KG from and against all claims raised against Erfurt & Sohn KG, because the intended or foreseeable use of our products caused damages, to the extent such damages were caused by the products delivered by the supplier.
Under the same circumstances and conditions, the supplier is also liable for damages Erfurt & Sohn KG incurs from product liability claims (national or international). This also applies to precautionary measures against liability claims (e.g. recall actions). The supplier is obligated to furnish proof of an effective product liability insurance.
9. Other Claims
If we safeguard property of third parties that is located in our premises in connection with the performance of customer orders, we are only liable for intent or gross negligence in the case such property is destroyed or damaged.
10. Reservation of Title
Transfer of ownership to the goods is unconditional and without regard to the payment of the price. Excluded are, in any case, all forms of extended and prolonged reservation of title, so that an effective reservation of title declared by the supplier is only effective until payment of the goods delivered to us and only applies to such delivered goods.
11. Secrecy, Use of the Company Name, Sub-Suppliers
a) The supplier company is obligated to keep secret towards any third party any and all experiences, knowledge and documents of our company of which it gains knowledge in connection with our order. Drawings may not be reproduced or used otherwise without our approval. Manufacture of objects based on our drawings outside of our order is not permitted, also not for internal purposes of the supplier company.
If the supplier company receives drawings or special technical instructions from us for the production of objects, such objects, including all parts and materials used for the production, which the supplier company safeguards until transfer to us, become our property with the commencement of the production (or insertion of the parts) Such objects may not be made available to third parties or sold to third parties without our written approval.
b) Any mention of our company name for advertising purposes in business letters, customer lists, brochures and other publications is only permitted with our prior written consent.
c) Sub-suppliers Rights and duties arising from the order, as well as their exercise, may only be transferred with our written consent, unless supply by sub-suppliers is customary in the industry.
12. Place of Jurisdiction, Place of Performance, Governing Law
a) The relationships between us and our contracting parties are exclusively governed by the laws of the Federal Republic of Germany under exclusion of the Hague Convention on the Law Applicable to the International Sale of Goods and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
b) Place of performance for all existing mutual obligations from this contractual relationship is Wuppertal, unless expressly agreed otherwise.
c) Place of jurisdiction is - also for claims arising from summary debt procedures, as well as actions on checks and bills - is Schwelm, if the supplier is a businessman. We also have the right to bring legal action before the competent court at the registered offices of the seller.
13. Severability clause
Should individual provisions of these Ts&Cs or the procurement transaction, as a whole or in part, be or become ineffective, this does not affect the effectiveness of the remaining provisions or remaining parts of such clauses. The parties to this agreement are obligated to replace the invalid or impractical provision from the start of its invalidity or impracticability by a provision that is economically as similar as possible. The same applies if the parties failed to address a certain matter in this Agreement (Regelungslücke).
ERFURT & SOHN KG
Wuppertal, July 2016
Local Court Hagen, HRA 4191