General Purchasing Terms and Conditions (GTCP)
Hereinafter, the company CENTA Antriebe Kirschey GmbH will be referred to as "CENTA".
These terms and conditions shall apply exclusively for CENTA orders and transactions as well as for their handling, insofar as nothing else has been agreed upon in writing. Any terms and conditions diverging from these terms and conditions shall not apply unless specified in the order. Terms and conditions in contradiction to the CENTA terms and conditions require the express written approval by CENTA to be effective. Orders and agreements shall only be binding if they are set up or confirmed in writing by CENTA.
1. Execution of Performance
1.1 The delivered goods must comply with the respective current statutory, official, and other provisions, in particular with the regulations for the prevention of accidents, standards and the recognised rules of engineering as well as with the documents forming the basis of the order, such
as drawings and specifications, etc. Any amendments to the delivery item requires the prior written approval by CENTA.
1.2 Partial deliveries shall be inadmissible unless any regulation to the contrary has been agreed upon. The indicated quantities ordered must be adhered to. In case of standard materials (major quantities regularly ordered by CENTA), a variation in quantity of 5% in relation to the ordered quantity shall be accepted.
1.3 Serial deliveries of a new part may not be started before the sample has been approved. In this connection, CENTA refers to its Quality Assurance Agreement (QAA), the CENTA Quality Assurance Directive CLQR-97 in the currently applicable version.
2.1 The QAA shall form the basis for the quality-relevant condition of the deliveries which CENTA will gladly send to its suppliers on request. This Agreement forms an integral part of CENTA's orders and general transaction agreements.
2.2 The certified CENTA QA system includes the evidence proving the subcontractors' quality capability. In this context, the supplier shall agree to allow CENTA the required insight into their production and system flow as well as their quality-relevant documentation on the basis of quality audits.
2.3 Parts for which documentation is compulsory according to DIN EN 10204 (2.1-; 2.2-; 3.1- and 3.2-certificate): The supplier must assure himself/herself of the proper compliance of the required data by comparing the material designation on the parts themselves with the provided documents/certificates. Material designations may only be transferred or remarked by suppliers or their employees authorized to do so (a remarking authorisation must be provided).
2.4 For the cost-intensive handling of complaints, CENTA takes the liberty of charging a lump-sum for expenses amounting to €150.00 for each complaint in case of return deliveries and reworking measures on CENTA's premises unless the supplier provides evidence that he/she is not responsible for neglecting his/her duty or that the costs for handling the complaint and/or for the reworking measures are lower.
3. Date of Delivery and Delay in Delivery
3.1 The dates of delivery agreed upon shall be binding. The supplier shall be obligated to inform CENTA immediately in writing of any occurring or foreseeable circumstances due to which the demanded date of delivery cannot be met.
3.2 If delivery is delayed due to circumstances for which the supplier is responsible, CENTA shall be entitled to assert a contractual penalty amounting to 1% of the delivery value per commenced week as a penalty for delay, however not exceeding a maximum of 5% of the total or the proportional purchase price with which the supplier is in delay. Further legal claims shall be reserved. The reservation of a contractual penalty incurred due to delayed delivery shall be considered to be in time if CENTA deducts the incurred amount from the next due invoice. CENTA shall be entitled to assert a contractual penalty in addition to performance.
3.3 The supplier shall be obligated to compensate CENTA for any damages resulting from delay beyond the amount of the incurred contractual penalty unless they provide evidence that they are not responsible for them.
3.4 If the dates bindingly agreed upon are not adhered to due to circumstances for which the supplier is responsible, CENTA shall be entitled, after expiration of an adequate deadline set by CENTA, to demand, at CENTA's discretion, compensation in lieu of performance, or to procure replacement from a third party, not withstanding any further legal claims. This shall not affect the right to withdraw from the contract.
III. Dispatch - Packaging
1. The supplier shall be responsible for orderly and proper packaging and shipment. A delivery note must be included with each shipment. This delivery note must include the order specifications; however, it at least must include the order number, the CENTA product number and the gross and net weight. If CENTA incurs damage due to the non-observance of the above provision the supplier must compensate the same unless he/she provides evidence that he/she is not responsible for said damage.
2. Simultaneously with the dispatch, an advice of dispatch must be sent to CENTA including the data demanded in the delivery note. If partial deliveries are admissible (cf. II 1.2), the outstanding quantity to be delivered must be indicated.
IV. Prices and Payment
The prices mentioned in the order or transaction of CENTA and confirmed by the supplier are fixed prices. They shall apply for delivery ex works, incl. packaging, if nothing else has been expressly agreed upon.
If CENTA makes advance payments in exceptional cases, then it shall be entitled to demand a guarantee from the supplier.
2. Conditions and Terms of Payment
As far as nothing else has been agreed upon in writing, CENTA shall pay the purchase price within 14 days, calculated from delivery and receipt of the invoice, with a discount of 2%, or net within 30 days upon receipt of the invoice. If the invoice is received before the goods have arrived, the date of receipt of the goods shall prevail for the calculation of the discount period.
3. Delay in Payment
CENTA will only be considered to be in arrears when it has exceeded the 30-day payment period after the due date and receipt of the invoice. Any damage caused by delayed payment shall be restricted to the statutory interest rates applicable to late payments pursuant to Art. 288 Subsection 2 German Civil Code, excluding the option of Art. 288 Subsection 3 German Civil Code.
4. Set-off Rights and Rights of Retention
CENTA shall be entitled to set-off rights and rights of retention to the extent permitted by law. In particular, in case of a notice of defects, CENTA shall be entitled to retain due payments to an appropriate extent.
V. Inspection of Incoming Goods
1. The supplier shall be responsible for the quality of the subjects of the contract without any restriction. Moreover, he/she shall be obligated to point out to the person ordering the goods any items he/she considers to be ambiguous or erroneous.
2. If within the scope of a random sampling inspection procedure in accordance with QAA: CLQR-97, CENTA detects that the admissible critical quality values have been exceeded, CENTA shall be entitled to reject the goods completely or to inspect each individual part at the expenses and risk of the supplier. The supplier shall bear any pertinent and personnel expenses for this unless he/she provides evidence that he/she is not responsible for a neglect of his/her duty. In this case, the supplier must provide material evidence of the primary materials on request.
VI. Liability for Defects
1. The liability for defects shall be governed by the statutory provisions if nothing to the contrary is stipulated hereinafter.
2. The supplier shall guarantee that any goods delivered by him/her and any performances comply with the latest state of the art at the time of the conclusion of the contract, the relevant legal provisions, and the provisions and directives of authorities, professional associations and vocational associations, and that he/she is not aware of any forthcoming changes. In particular, this shall apply with respect to the environmental regulations applicable in the European Union, the Federal Republic of Germany and at the registered seat of the supplier. The supplier will inform CENTA immediately about all relevant changes he/she has been made aware of or which are forthcoming.
3. If the supplier has any doubts concerning CENTA's demands regarding the condition of the goods to be delivered, he/she must immediately inform CENTA accordingly in writing.
4. The limitation period for any defects shall be 3 years, calculated as from the passing of risk. The supplier must remove any defects of the delivery/performance notified within the limitation period without delay and free of charge at CENTA’s discretion by repair or by replacing the defective parts (compensation delivery). The supplier shall bear any and all expenses required for this. The removal of defects and replacement or re-manufacturing must be initiated immediately.
5. Any further claims due to defects, in particular the right to withdraw from the contract and CENTA’s right to compensation of the damage, including compensation in lieu of performance, remain unaffected. If the supplier does not meet his/her supplementary performance obligation within an adequate term set by CENTA, CENTA may take the necessary measures itself or have them taken by third parties at the supplier's own cost and risk. In urgent cases, CENTA can, upon coordination with the supplier, accomplish the supplementary performance itself in the form of a removal of defects, or have it done by a third party.
VII. Guarantees - Warranties
As far as the supplier has assumed guarantee for the condition of an object or a work in the form of a warranty, he/she shall be liable for the compensation of the damage including the compensation of damage in lieu of performance in accordance with the statutory provisions. The limitation period is 3 years, calculated from the detection of the defect and the non-existence of the guaranteed or warranted condition.
VIII. Delivery Recourse
If claims are made against CENTA by her customers concerning a purchase of consumer goods, and if these claims are based on a defect of an object delivered by the supplier, recourse claims to CENTA shall not be statute barred before the expiration of a period of 5 years, calculated from the delivery of the object by the supplier to CENTA.
IX. Product / Recourse Insurance
1. Insofar as the supplier is responsible for a product damage, he/she shall be obligated to indemnify CENTA against third-party damage claims upon first request, if the cause lies within his domain and field of organisation and he/she is liable himself/herself in relation to third parties.
2. To this extent, the supplier shall also be obligated to reimburse any expenses pursuant to Articles 683, 670 German Civil Code or pursuant to Articles 830, 840, 426 German Civil Code resulting from or in connection with product recalls performed by CENTA. CENTA will inform the supplier, as far as possible and reasonable, about the contents and extent of the recall measure to be performed and give him/her the opportunity to deliver his/her opinion.
3. The supplier undertakes to maintain a product liability insurance policy with an insured sum of €5,000,000.00 per personal injury/property damage on a flat-rate basis and to correspondingly show evidence of it to CENTA on request. Moreover, the supplier shall be obligated to inform his liability insurer about his indemnity obligation according to Subsection 1.
4. The supplier shall be liable for consequential damages incurred to CENTA by appropriate precautionary measures against the claims from product liability or from the violation of official safety regulations. This shall apply notwithstanding Art. 5 German Product Liability Act and Articles 823, 840, 254 German Civil Code. To ensure the compensation of such damages, the supplier shall undertake to take out an employer's or product liability insurance policy and an insurance policy for environmental damages against personal injury, property damage and pecuniary damage, including possible product pecuniary damage and consequential pecuniary damage as well as environmental damages with a minimum insured sum of €2,500,000.00. The insured sum must be provided with a double maximum annual coverage and a worldwide area of application. The supplier must evidence the existence of such an insurance policy on request.
5. If the damage incurred by CENTA exceeds the respective insured sums, or if the insurer refuses its obligation to assume liability completely or partly for other reasons, the claims for damages vis-à-vis the supplier shall remain unaffected.
X. Ineffectiveness of Limitation on Liability/Exclusion of Liability
Insofar as the supplier has limited and/or excluded his/her liability to CENTA in his/her General Terms and Conditions, these are not applicable to CENTA. This shall in particular apply to the limitation of liability regarding delay in delivery, the culpable violation even of inessential contractual obligations as well as the negligent causation of property damage and consequential property damage as well as the personal compensation liability of the employees, workers, staff members, representatives or vicarious agents of the supplier. The same shall apply insofar as the limitation on liability or exclusion of liability of the supplier in his/her General Ts&Cs is based on his/her having abridged the statutory limitation periods.
XI. Industrial Property Rights, Tooling, Non-disclosure
1. Through the use of the goods under this contract, as long as they are not expressly manufactured according to drawings and models of CENTA, the supplier assumes liability for either directly or indirectly infringing upon any domestic or foreign property rights, or any other rights that are not subject to any legal special protection. For a list of the countries supplied by CENTA, please access the following link: List of Countries. Moreover, the supplier shall be liable for any damage CENTA incurs due to the infringement of such rights, unless he/she provides evidence that he/she is not responsible for the violation of his/her duty being the basis for the infringement of industrial property rights.
2. Tooling manufactured according to drawings or models or other documents of CENTA must not be used for other customers or handed over to third parties or made available to them. The reproduction of such objects shall be only admissible within the scope of operational requirements and copyright provisions.
3. Orders and all related commercial and technical details of CENTA must be treated as a trade secret by the supplier. The supplier may only refer to the business relation to CENTA upon prior written agreement by CENTA. This shall also apply to exhibitions of parts manufactured for CENTA at trade fairs, on the Internet and in other publications.
4. Orders by CENTA must be always manufactured by the supplier himself/herself exclusively at the business site selected and approved of by CENTA. Manufacture at a business site other than that selected and approved of by CENTA, or manufacture by third parties requires the express written approval by CENTA.
XII. Jurisdiction - Place of Delivery / Applicable Law
1. The place of jurisdiction for any disputes with transactions with merchants shall be the company's established place of business. However, CENTA shall be entitled to also bring a suit against the supplier at his/her court of residence.
2. If nothing to the contrary can be taken from the order, CENTA's established place of business shall also be the place of fulfilment.
3. The law of the Federal Republic of Germany shall be applicable; the application of the UN Convention on Contracts for the International Sales of Goods (CISG) shall be excluded.
XIII. Severability Clause
If individual provisions of these General Purchasing Terms and Conditions should be completely or partly ineffective, this shall not affect the validity of the other provisions. In this case, the statutory provision shall apply, insofar as a supplementary interpretation of the contract is required for bridging the gap.