General terms and conditions of purchase
1. Scope of application
a) For all present and future deliveries and services to HygroMatik GmbH (HygroMatik) these General Terms and Conditions of Purchase shall apply exclusively to the exclusion of the general terms and conditions of the supplier and subject to deviating written agreements.
b) The General Terms and Conditions of Purchase shall only apply if the Seller is an entrepreneur (§ 14 BGB), a legal entity under public law or a special public law fund.
c) They shall be deemed to be impliedly accepted when the supplier submits an offer. Acceptance of an order by the Contractor shall also imply acceptance of these Terms and Conditions, which are an integral part of the Contract.
d) These terms and conditions apply exclusively. HygroMatik does not accept any terms and conditions of the contractor which are contrary to or deviate from these terms and conditions, unless HygroMatik has expressly agreed to their validity in writing. These terms and conditions shall also apply if HygroMatik accepts the delivery without reservation in the knowledge of terms and conditions of the contractor which are contrary to or deviate from these terms and conditions. Neither the tacit acceptance of the offer, nor the order, the acceptance of the delivery or service as well as its payment by HygroMatik shall be considered as acceptance of deviating agreements.
e) Individual agreements made with the contractor in particular cases (including collateral agreements, supplements, and amendments) shall in any case take precedence over these terms and conditions. For the content of such agreements a written contract or a written confirmation by HygroMatik is decisive. This also applies to the agreement of a deviation from the written form requirement. Legally binding declarations and notifications to be made after conclusion of the contract (e.g., deadlines, reminders, declarations of withdrawal) must be made in writing to be effective.
2) Purchase Order, quotation, contracts
a) Only orders placed in writing are valid. Verbal and telephone orders as well as any change to an order must be confirmed in writing to be binding.
b) The Seller shall notify us of any obvious mistakes (e.g. spelling and calculation errors) and incompleteness of the order including the order documents for the purpose of correction or completion prior to acceptance; otherwise the contract shall be deemed not to have been concluded.
c) The supplier is obliged to confirm a HygroMatik order within five (5) working days. If HygroMaitk does not receive a confirmation within a period of five working days, HygroMatik is no longer bound to its order.
d) Quotations are made by the supplier free of charge and without obligation for HygroMatik. HygroMatik will only reimburse expenses if this has been approved by HygroMatik in advance. The offers must correspond to HygroMatik inquiries. If deviations are inevitable, the supplier must point them out explicitly.
e) In the event of a discrepancy in content between HygroMatik's order and the supplier's order confirmation, HygroMatik's tacit agreement shall not be deemed to be a declaration of intent. For the effective conclusion of a contract the written declaration of acceptance of the new offer by HygroMatik is required.
f) In the case of contracts for the continuous supply of products, HygroMatik shall be entitled to withdraw from the contract by notifying the Supplier in writing at least thirty (30) days before the effective date of withdrawal, without prejudice to the Supplier's right to payment of fees for services already performed up to this date.
a) The price stated in the HygroMatik purchase order is binding. All prices are inclusive of statutory value added tax, if this is not stated otherwise. The agreed price is a fixed price. It includes everything which the contractor has to carry out to fulfill his obligation to perform according to the agreements. Prices include packaging and are CPT place of delivery for domestic deliveries and DDP place of delivery for all other deliveries. Incoterms 2020 shall apply. If remuneration is owed on a time and material basis, the agreed amount shall be understood as the upper limit of the remuneration. The supplier shall specify cost types and cost rates in its offer.
b) The prices and the remuneration cover all receivables goods and services that are necessary for the proper fulfillment of the contract. In particular, installation and documentation costs, costs for initial instruction, expenses, license fees, packaging, transport, insurance and unloading costs are also covered. Agreed prices are in principle fixed prices, including all ancillary costs. Delivery shall be made carriage paid and including packaging to the place of receipt specified by HygroMatik.
4. Delivery obligations, delivery delay
a) Unless otherwise agreed, delivery is always at the risk of the supplier. The risk is only transferred to HygroMatik upon handover at the place of destination.
b) Agreed delivery deadlines and delivery dates are binding.
c) A waybill with details of the order number and HygroMatik item number must be provided for each delivery.
d) HygroMatik reserves the right to acknowledge excess or short deliveries.
e) HygroMatik reserves the right to accept deliveries without prior order confirmation as implied.
f) HygroMatik reserves the right to return goods delivered more than seven (7) days early to the supplier, or to have the invoice valued and/or to charge costs related to the return, storage, keeping and/or preservation of the products.
g) Deliveries on pallets may only be made with Euro pallets or untreated wooden pallets. In the case of Euro pallets, pallets will be swapped on delivery.
h) Transport packaging and sales packaging must be reusable or recyclable.
i) If circumstances occur or threaten to occur which prevent compliance with the agreed delivery time, the supplier shall immediately notify HygroMatik in writing of the reasons and the expected duration of the delay.
j) In case of delay in delivery HygroMatik is entitled to the legal claims. In particular HygroMatik is entitled to claim damages instead of delivery or withdrawal after expiry of a reasonable period of time. If HygroMatik demands compensation, the supplier has the right to prove to HygroMatik that he is not responsible for the violation of duty.
k) If HygroMatik has either provided its owned components for the delivery or tools for the provision of services, HygroMatik retains the sole ownership of these. Tools provided serve exclusively for the production of goods intended for HygroMatik. The contractor shall maintain and service these tools at his own expense.
5. Quality inspections, packaging, transport, proof of origin
a) The supplier shall perform an inspection of outgoing goods with regard to defects of the goods and conformity of the delivery with the order. Unless specific inspection and quality requirements have been agreed, the agreed specifications as well as the applicable technical standards and legal regulations shall apply.
b) All goods must be properly packaged, labeled and shipped in accordance with customary commercial care in a manner that ensures the lowest transport costs. Unless otherwise agreed, the goods to be delivered shall be packed in accordance with the current packaging specifications. The supplier shall be liable for any damage resulting from inadequate packaging.
c) Supplier shall promptly obtain in full all documents and other information required under customs regulations or other applicable governmental regulations, including, without limitation, (i) duty drawback documents and (ii) all certificates of origin and (iii) any other information relating to the commercial or preferential origin of the goods and materials contained therein.
d) If HygroMatik specifies a transport company or means, the supplier shall execute the transport accordingly.
6. Invoicing, payment terms
a) Invoices shall be sent separated from the goods. Invoices may be sent by letter post or by e-mail. In the case of electronic invoicing, only the recipient's address of the HygroMatik invoice mailbox is to be used. Electronic invoices are only permitted as PDF attachments. Rejected e-mails are considered as undelivered invoices.
b) The invoice must state the HygroMatik order number, the order date and the HygroMatik item number.
c) If several orders are combined into one delivery, the invoice shall nevertheless be issued for each order and not as a collective invoice.
d) Unless otherwise agreed, HygroMatik will make payments either with a discount of 3% within 10 days or within 30 days net after receipt of invoice. If HygroMatik receives the goods after the invoice, the cash discount period starts only with the receipt of the goods free from defects.
e) Payment shall be made cashless.
f) The assignment of the payment claim to third parties needs to be disclosed and requires the prior written consent of HygroMatik.
g) The Seller shall have a right of set-off or lien only on the basis of counterclaims which have become res judicata or are undisputed.
7. Liability of defects
a) HygroMatik will inspect the goods immediately upon receipt to verify whether they correspond to the ordered type and quantity and whether there is any externally recognizable transport damage or externally recognizable defects. HygroMatik has no further obligation to inspect the goods. Complaints are considered to be made in time if they are sent within ten (10) days after discovery of a defect. Hidden material defects are in any case notified in time if notifications are sent to the supplier in the same way within ten (10) working days after discovery.
b) The supplier warrants that all goods delivered by him are free from defects and have the agreed properties and are suitable for the respective purpose.
c) In the case of goods with digital elements or other digital content, the Seller shall owe the provision and updating of the digital content in any case to the extent that this results from a quality agreement pursuant to § 7 b) or other product descriptions of the manufacturer or on its behalf, in particular on the Internet, in advertising or on the goods label.
d) Unless otherwise agreed, the supplier grants a warranty on the goods of 36 months from delivery.
e) Defects of the delivery notified during the warranty period shall be remedied by the supplier immediately upon request and at his own expense at HygroMatik's discretion by repair or replacement of the defective parts or new delivery of the goods. If necessary, this also includes the transport costs for the collection of claimed goods irrespective of the originally agreed terms of delivery.
f) HygroMatik is entitled to remedy the defect itself at the supplier's expense if there is imminent danger or special urgency. The supplier shall bear any costs arising from this.
g) After the unsuccessful expiry of a reasonable deadline set by HygroMatik for rectification or new delivery, or after two failed attempts at rectification, HygroMatik is also entitled to the legal rights of withdrawal, price reduction and compensation.
h) The Supplier shall bear all expenses necessary for the purpose of subsequent fulfillment, in particular transport, travel, labor and material costs, installation and disassembly costs and costs for determining the cause of the damage.
i) The limitation period shall be governed by the statutory provisions. In the event of replacement delivery and rectification of defects, the warranty period for replaced and rectified parts shall begin anew.
j) Furthermore, HygroMatik is entitled to the legally standardized claims for damages and reimbursement of expenses against the supplier to the full extent.
8. Recourse claims
a) HygroMatik is entitled to the legally determined claims for expenses and recourse within a supply chain (supplier recourse according to §§ 478, 445a, 445 or §§ 445c, 327 para. 5, 327u BGB) in addition to the claims for defects without restriction. HygroMatik is in particular entitled to demand exactly the type of supplementary fulfillment (repair or replacement) from the seller that HygroMatik owes its customer in the individual case; for goods with digital elements or other digital content this also applies with regard to the provision of necessary updates. The legal right of choice (§ 439 para. 1 BGB) of HygroMatik is not limited by this.
b) Prior to HygroMatik acknowledging or fulfilling a claim for defects asserted by its customer (including reimbursement of expenses according to §§ 445a para. 1, 439 para. 2, 3, 6 p. 2, 475 para. 4 BGB), HygroMatik shall notify the seller and request a written statement, briefly explaining the facts. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is reached, the claim for defects actually granted by HygroMatik shall be deemed to be owed to our customer. In this case the seller has the burden of proof to the contrary.
c) HygroMatik's claims from supplier recourse also apply if the defective goods have been combined with another product or processed in any other way by HygroMatik, our customer or a third party, e.g. by installation, attachment or installation.
9. Products liability
a) If the supplier is responsible for product damage, he is obligated to indemnify HygroMatik against claims for damages by third parties upon first request, insofar as the cause was within his sphere of control and organization and he himself is liable towards third parties.
b) In this respect the supplier is also obliged to reimburse any expenses according to §§ 683, 670 BGB, which result from or in relation to a product recall carried out by HygroMatik. HygroMatik will inform the supplier about the extent and scope of the recall measures to be carried out - as far as possible and reasonable - and give him the opportunity to comment. Other legal claims remain unaffected.
c) The supplier will obtain insurance against risks arising from product liability in an appropriate amount - at least, however, EURO 1 Mio. for personal injury and property damage - and will provide HygroMatik with suitable proof of such insurance upon first request (e.g. by submitting an insurance policy and/or confirmation of insurance).
d) The supplier shall mark the delivered items in such a way that they are permanently recognizable as his products, unless this is regulated otherwise in an individual contract.
e) The supplier shall ensure, by marking the products or by other suitable traceability measures, that in the event of a defect occurring in products, it can immediately determine which products or batches are or could be affected by the defect.
10. Property rights
a) The supplier assures HygroMatik that the goods delivered to HygroMatik are free of third-party rights and claims. The supplier assumes full liability towards HygroMatik that no industrial property rights or other rights of third parties are infringed by the delivery of the goods supplied to HygroMatik for resale or processing by HygroMatik.
b) If HygroMatik is sued by a third party for infringement or impairment of property rights, the supplier is obliged to indemnify HygroMatik to the full extent from all such claims and measures of third parties. This also includes the timely defense against threatening claims and measures of third parties against HygroMatik.
c) DThe supplier's liability also includes all consequential damages incurred by HygroMatik, including those resulting from delivery shortages and production disruptions.
11. Force majeure
a) Force majeure shall release the contracting parties from their obligations and duties for the duration of the disruption and to the extent of its impact. "Force Majeure" means the occurrence of an event or circumstance that prevents a party from performing one or more of its obligations under the contract if and to the extent that the party affected by the impediment demonstrates that: (a) such impediment is beyond its reasonable control; and (b) it was not already known or reasonably foreseeable at the time of entering into the contract; and (c) the effects of the impediment could not reasonably have been avoided or overcome by the affected party. The existence of Force Majeure shall be presumed in particular in the event of (i) war, extensive military mobilization; (ii) civil war, rebellion and revolution, military or other seizure of authority, insurrection, acts of terrorism, sabotage or piracy; (iii) monetary and trade restrictions, embargo, sanctions; (iv) lawful or unlawful official acts, expropriation, confiscation of works; (v) pandemic, epidemic, natural disaster or extreme natural event; (vi) explosion, fire, destruction of equipment, prolonged failure of transportation, telecommunications, information systems or power; (vii) general labor unrest such as boycotts, strikes and lockouts, occupation of factories and buildings.
b) The contracting parties are obligated to provide the necessary information without delay within reason and to adjust their obligations to the changed circumstances.
c) The affected party is obligated to take all reasonable measures to limit the effect to the claimed event in the fulfillment of the contract.
d) HygroMatik is released from the obligation to accept the ordered delivery/service in whole or in part and is insofar entitled to withdraw from the contract if the delivery and/or service can no longer be utilized by HygroMatik - taking into account economic aspects - due to the delay caused by force majeure.
e) If the impediments last for more than two months, each contracting party shall be entitled to withdraw from the contract without setting a further deadline.
12. Confidentiality, technical changes and product discontinuation
a) The contracting parties undertake to treat as business secrets all commercial and technical details which are not in the public domain and which become known to them through the business relationship. Drawings, models, templates, samples and similar items may not be handed over or otherwise made accessible to unauthorized third parties. This applies irrespective of whether such information or items are expressly designated or marked by HygroMatik as "secret", "confidential" or in any other form as requiring secrecy. The reproduction of such items is only permitted within the scope of operational requirements and copyright regulations. Subcontractors shall be bound accordingly. Documents concerning business secrets and items subject to secrecy are to be returned to HygroMatik upon termination or non-occurrence of the business relationship or alternatively to be destroyed upon prior agreement.
b) The supplier may only advertise the business relationship with the prior written consent of HygroMatik.
c) The supplier must inform HygroMatik independently and comprehensively about any technical changes and planned discontinuations at the earliest possible time. Technical changes must be reported to HygroMatik at the latest prior to delivery and are only permissible with the approval of HygroMatik. A discontinuation must be made at least 12 months before a discontinuation. However, a discontinuation may take place at the earliest 5 years after product discontinuation.
13. Retention of title
The ownership of the delivered goods is transferred to HygroMatik upon full payment. Any extended or expanded retention of title by the supplier is excluded.
14. Quality, environment, occupational health and safety, sustainability
a) HygroMatik operates a quality, environmental and occupational health and safety management system with the aim of prevention and legal conformity. The supplier shall comply with the agreed characteristics, relevant standards and applicable legal provisions at each process level. HygroMatik expects conformity with all relevant national and international standards, laws and legal regulations.
b) The supplier shall comply with the recognized rules of technology, the agreed specifications, quality, environmental, safety and testing regulations and the agreed technical data for his deliveries. Changes to the delivery item as well as changes to materials, tools or processes in production require the prior written consent of HygroMatik. The supplier has to check the specifications and communicate any necessary changes without delay.
c) The goods supplied and services rendered by the supplier must comply with the respective recognized state of the art, the respective applicable safety regulations and the quality assurance and environmental agreements made at the time of delivery to HygroMatik. Preferably, the supplier shall operate an ISO-certified quality, environmental and occupational safety management system.
d) The supplier shall check the quality of the ordered goods at regular intervals and submit the agreed test certificates; the supplier shall inform HygroMatik immediately and in writing of any quality problems occurring with the goods.
e) If the supplier delivers products whose product components are specified in a list of declarable substances currently valid at the time of the order or which are subject to material restrictions and/or material disclosure obligations based on laws (e.g. REACH, RoHS, California Proposition 65, Stockholm Convention), the supplier must assure HygroMatik that the required threshold levels and documentation obligations are complied with. The supplier shall expressly inform HygroMatik before acceptance of the order that the delivery item is subject to the special requirements and furthermore expressly acknowledges all manufacturer obligations (esp. labeling obligation, information obligation, take-back obligation etc.) from the relevant laws and regulations towards HygroMatik. Corresponding declarations are to be issued to HygroMatik.
f) If applicable, the Supplier expressly assures that the delivered electronic goods comply with all requirements of legal regulations (i.e. WEEE Directive 2012/19/EU) for placing goods on the market, recollection and environmental sound disposal.
g) The supplier has implemented appropriate measures to ensure that its supplies and services comply with the requirements resulting from Regulation (EU) 2017/821 of May 17, 2017, establishing supply chain due diligence obligations and the law implementing it of May 6, 2020, and Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (as applicable), as amended from time to time, with respect to the use of so-called conflict minerals (e.g., tantalum, tungsten, tin or gold). Corresponding declarations on this are to be issued to HygroMatik.
h) HygroMatik is committed to the Code of Ethics of the CAREL Industries Group and to the CAREL Anti-Corruption Guidelines, which can be found at https://www.carel.com/legal-notice. Within the scope of its corporate responsibility, the supplier undertakes to act legally and ethically in accordance with this Code of Ethics when manufacturing products or providing services. Upon request, the supplier shall declare the CAREL Code of Conduct for Suppliers to be binding. The Supplier's failure to comply with these obligations, as well as the Supplier's commission of legal violations, shall constitute a serious breach of contract and shall entitle the Customer to terminate the contract with immediate effect, without prejudice to the right to damages resulting from such non-compliance.
15. Export control and foreign trade information
a) The Supplier shall comply with all requirements of applicable national and international customs and foreign trade law.
b) The supplier shall immediately provide HygroMatik in writing with all information and data required by HygroMatik for compliance with foreign trade law for export, import and re-export, in particular all applicable export list numbers including the Export Control Classification Number according to the U.S. Commerce Control List (ECCN); the statistical commodity number according to the current commodity classification of foreign trade statistics and the HS (Harmonized System) code and country of origin (non-preferential origin) and, if requested by HygroMatik, supplier declarations of preferential origin (for European suppliers) or certificates of preference (for non-European suppliers).
16. Data privacy
a) The supplier agrees that HygroMatik stores the supplier's data required within the scope of the business relationship and concluded contracts by means of electronic data processing or has them stored by service providers and uses them only for the purpose of the contractual cooperation within the affiliated companies.
17. Place of fulfillment, place of jurisdiction, choice of law
a) The place of fulfillment for deliveries/services and thus also the place of fulfillment for subsequent fulfillment is the place of delivery named by HygroMatik.
b) All disputes arising from or in connection with this contract, including those concerning the validity, cancellation or termination of the contract, shall be decided by the ordinary courts at the registered office of HygroMatik, applying the national German law. HygroMatik may also sue the supplier at his general place of jurisdiction.
c) The law of the Federal Republic of Germany shall apply. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention) and the conflict of laws rules of private international law are expressly excluded.
18. Severability clause
If individual provisions of these General Terms and Conditions of Purchase are invalid, the remaining provisions shall remain unaffected. The parties undertake to replace an invalid condition with a valid one that comes as close as possible to the economic purpose of the invalid one.