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#Purchasing conditions.

 General Terms and Conditions of Purchase of METZLER : VATER group GmbH:

 

 

 

 

Contents

1) Preamble

2) Conclusion of contract/scope of services

3) Delivery, delivery time and delay in delivery

4) Acceptance/defects/supplier recourse

5) Terms of payment

6) Confidentiality

7) Exploitation and usage rights

8) Customer protection clause

9) Statute of limitations

10) Minimum wage/tax/data protection

11) Final provisions

 

 

1) Preamble

 

These General Terms and Conditions of Purchase govern the business relations between the above GmbH (customer) and its business partners and suppliers (contractual partner).

The AEB shall also apply to contracts for the purchase and/or delivery of movable goods ("Goods"), irrespective of whether the contracting party manufactures the Goods itself or purchases them from suppliers (§§ 433, 651 BGB).

They shall only apply if the contractual partner is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.

Deviating regulations in general terms and conditions of the contracting party are expressly contradicted. Individual agreements and framework agreements shall in any case take precedence over these AEBs.

 

 

 

2) Conclusion of contract/scope of services

With the order of the customer (acceptance), the contract is concluded on the basis of the previously negotiated list of services (offer). Acceptance shall take place at least in text form. The contractual partner is obliged to document the conclusion of the contract by means of an order confirmation and to execute the order as agreed.

In addition, the contractual partner undertakes to provide all services not expressly mentioned which are necessary for the proper and high-quality performance of the agreed services. These include, in particular, compliance with the generally accepted rules of architecture and building technology as well as fair, exhibition and stage construction and event technology, as well as all relevant statutory and official regulations.

The contractual partner shall be obliged to procure and obtain in due time all permits and permissions required for the performance of its services. Subsequent changes or additions to the scope of services must be made in writing.

In the event of a modification or supplementation of services, the contractual partner undertakes to compile a complete modification history of the order. In this change history, he lists every project-related change or addition. The modification history is based on the original contract to whose services all changes and additions are added/subtracted.

The contractual partner must personally provide the services assigned to him in accordance with the contract. A transfer of the services or parts of the services to third parties requires the prior consent (at least in text form) of the client.

 

3) Delivery, delivery time and delay in delivery

The service is to be rendered at the agreed place (place of performance). If no such agreement has been formulated in the contract, the service shall be rendered at the customer's place of business.

The agreed delivery time is generally binding. The contractual partner is obliged to inform us immediately in text form if it is likely that the agreed delivery times cannot be met. If the contractual partner does not provide his service or does not do so within the agreed delivery period, he is in default.

If the service is no longer usable for the client in the event of a delay (fixed service), the client may withdraw from the contract. This shall also apply in the event that the contractual partner states that it will not be able to render the service within the specified period. For services which are not fixed services, the same applies if the contractual partner allows a deadline set after the delivery date to elapse.

If the contractual partner is in default with his performance, the customer may - in addition to further legal claims - demand lump-sum compensation for the damage caused by default amounting to 0.25% of the net price per completed calendar day, but not more than a total of 5% of the net price of the delayed performance.

The client reserves the right to prove that a higher damage has occurred. The contractual partner reserves the right to prove that no damage at all or only considerably less damage has been incurred.

 

4) Acceptance/defects/supplier recourse

The contractual partner is only entitled to partial performance if this has been expressly agreed. The customer may refuse acceptance of the service only in the case of material defects. Notice of defects which are recognisable at the time of acceptance must be given within five working days at the latest. After acceptance, the service must be inspected for hidden defects within five working days. Defects discovered during the investigation must also be reported within five working days of discovery.

In the case of the purchase of goods, the customer shall be entitled, in deviation from § 442 Para. 1 S. 2 BGB (German Civil Code), to claims for defects without restriction even if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence. If the rectification of the performance is owed, it shall be performed at the place of performance. This does not apply to non-locational services (software, etc.). Subsequent performance shall also include the removal of the defective goods and reinstallation if the goods have been installed in another item or attached to another item in accordance with their type and intended use. The customer's statutory claim to compensation for corresponding expenses shall remain unaffected. The contracting party shall bear the expenses necessary for the purpose of inspection and subsequent performance even if it turns out that no defect actually existed.

Liability for damages in the event of an unjustified demand to remedy defects shall remain unaffected; in this respect, however, the customer shall only be liable if he has recognised or grossly negligently failed to recognise that no defect existed. The parties agree on the text form for notifications of defects.

In the context of supplier recourse, the customer is in particular entitled to demand from the contractual partner exactly the type of subsequent performance which he owes to his client in individual cases. The customers legal right of choice (§ 439 Abs. 1 BGB) is not limited by this. The claims arising from supplier recourse shall not expire if the customer or his client has further processed the goods.

Before the customer acknowledges or fulfils a claim for defects asserted by his client (including reimbursement of expenses pursuant to §§ 445a para. 1, 439 para. 2 and 3 BGB), he shall notify the contractual partner and request a written statement, briefly explaining the facts of the case. If a substantiated statement is not made within the set, reasonable period of time and no amicable solution is reached, the claim for defects actually granted by the customer shall be deemed owed. In this case, the contractual partner shall be responsible for providing proof to the contrary.

 

5) Terms of payment

The agreed prices are binding. Unless otherwise agreed in individual cases, the price shall include all services and ancillary services of the contractual partner (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).

After complete performance of the service without objection, the contractual partner shall invoice in accordance with the statutory provisions. The partner's claim is due after receipt of the original invoice by the client. The parties agree on a term of payment of 30 days. The customer shall not owe any interest on the due date. The statutory provisions shall apply to default in payment. Delay occurs only after receipt of a separate reminder in text form with a reasonable period of time.

The customer shall be entitled to set-off and retention rights as well as the defence of non-performance of the contract to the extent permitted by law. In particular, he shall be entitled to withhold payments due as long as claims still exist from incomplete or defective services. The contractual partner has a right of set-off or retention only on the basis of legally established or undisputed counterclaims.

 

6) Confidentiality

The contractual partner undertakes to maintain secrecy with regard to all information or processes that become known as a result of the business relationship between the parties and the provision of the services and with regard to all documents received. This shall also apply to all other internal matters of the contracting parties or other third parties involved.

The contractual partner shall only be entitled to refer to his services for the client within the scope of his own public relations work with the express written consent of the client. Any disclosure of documents or data, in whatever form, is only permitted with the written consent of the client.

For each case of culpable violation of this confidentiality agreement, the other party promises a contractual penalty, the amount of which is at the reasonable discretion of the customer and in the event of a dispute will be reviewed by the competent court for its appropriateness. The assertion of further damages remains unaffected by this.

Any violation of the confidentiality obligation justifies the termination of the contractual relationship without notice by the client, as well as the assertion of damages.

 

7) Exploitation and usage rights

Insofar as the services to be rendered by the contractual partner within the framework of the contract establish or contain industrial property rights (such as trademarks, patents, licences, utility models and design) or copyrights in favour of the contractual partner or one of its employees, the contractual partner hereby transfers to the client the comprehensive, exclusive, temporally and spatially unlimited rights of use for the exploitation of these protected service results in all forms and media, as well as the right to pass them on to third parties, in particular the customer, insofar as this is covered by the purpose of the contract.

The contractual partner shall be liable for ensuring that the services provided by him can be used without restriction and, in particular, that no industrial property rights (such as trademarks, patents, licences, utility models and design) or copyrights or ancillary copyrights as well as the rights of third parties are infringed or that corresponding statutory provisions are violated. The contractual partner shall indemnify the client against all claims arising from an infringement of such industrial property rights or copyrights/service protection rights.

The contractual partner pledges that his services are free of third party industrial property rights which could impair use. To the extent that the Customer is granted corresponding rights of use, the Customer shall also be entitled to edit the performance results, taking into account the author's personal right and safeguarding the intellectual peculiarity of the work, or to change them in any other form or have them edited, and to use the performance results thus changed.

If further use of the results takes place beyond the concrete purpose of the contract and the concrete project, the contractual partner shall be entitled to further reasonable remuneration. Any plans, drafts, drawings, concept descriptions etc. of the customer which come to the knowledge of the contractual partner shall remain the property of the customer with all rights, even if they have been handed over to the contractual partner.

The authorization for use by the contractual partner requires an express written agreement, regardless of whether special property rights or copyrights exist or not. The documents shall be deemed entrusted to the contractual partner within the meaning of § 18 UWG.

The contractual partner undertakes to refrain from any other use in any form, in particular reproduction and distribution and passing on to third parties as well as making changes without the express consent of the contractual partner.

 

8) Customer protection clause

The contractual partner commits himself towards the client to customer protection and refrains from any direct or indirect competition with regard to the client of the client, for whom the contractual services are to be rendered in the end, for the duration of the contractual relationship and up to two years after termination of the contractual relationship.

For each case of culpable violation of this customer protection order, the contractual partner promises a contractual penalty, the amount of which is at the discretion of the customer and in the event of a dispute will be reviewed by the competent court for its appropriateness. The assertion of further damages remains unaffected by this.

 

9) Statute of limitations

The mutual claims of the parties shall become time-barred in accordance with the statutory provisions. A shortening of the statute of limitations to the detriment of the client requires the express prior consent in text form. In the case of the purchase of goods, the general limitation period for claims based on defects is 3 years from the passing of risk, notwithstanding § 438 para. 1 no. 3 BGB.

 

10) Minimum wage/tax/data protection

The contractual partner undertakes to comply with the relevant national minimum wage regulations at the place of performance when rendering his services. Furthermore, he undertakes to encourage subcontractors or other third parties commissioned by him to comply with the national minimum wage regulations.

The taxes due with the remuneration of his performance shall be borne by the contractual partner himself. In particular, he undertakes to observe all relevant tax obligations associated with the performance of his services at the place of performance. He shall provide the customer with all necessary evidence without being requested to do so.

The customer stores the data of the contracting partner necessary for the contract implementation for the time necessary for the contract implementation and assures the adherence to the corresponding defaults of the GDPR, as well as the relevant regulations. The contractual partner is also obliged to comply with the provisions of the GDPR, the BDSG and the respective national data protection regulations. Furthermore, he undertakes to oblige subcontractors or other third parties commissioned by him to comply with the relevant data protection regulations. Insofar as the contractual partner collects, processes or uses personal data on behalf of the client, he is obliged to submit a declaration on order processing in accordance with the GDPR.

For each case of violation of one of these obligations, the contractor undertakes to pay a contractual penalty amounting to 5% of the respective order value. It shall be set off against any claims for damages due to breach of confidentiality. For further information on data protection and your other rights, please refer to our detailed explanations on our website.

 

11) Final provisions

Binding agreements require at least text form. This also applies to framework agreements and individual agreements.

Legally relevant declarations and notifications of the contractual partner with regard to the contract (e.g. setting of a deadline, reminder, withdrawal) must be submitted at least in text form.

Legal formal requirements and further evidence, in particular in cases of doubt as to the legitimacy of the declarant, remain unaffected.

The exclusive and international place of jurisdiction for all disputes is Munich. German law shall apply to the exclusion of the CISG. This shall also apply if the place of performance is abroad.