Our orders for deliveries and other services (hereinafter referred to as "services") are made exclusively on the basis of the following terms and conditions of purchase. We shall not recognize contradictory or deviating terms and conditions of sale or terms and conditions of sale that are not covered in these terms and conditions of purchase, unless we have expressly agreed to their validity in writing. This also applies if we unconditionally accept the services while being aware of contradictory or deviating conditions or conditions not specified in our terms and conditions of purchase, or if the supplier refers to the validity of its general terms and conditions in its offer, in its order confirmation, in invoices or in some other way in connection with handling the contract and Balluff does not expressly object to the inclusion again. In the context of current business relations, our conditions of purchase also apply to all future contracts with the supplier, without our being obligated to separately refer to the validity of these terms and conditions of purchase. These terms and conditions of purchase only apply to business with companies.
, production facilities, models, matrices, templates or other samples (hereinafter referred to as "tools") that we provide for the supplier to execute an order, shall remain our property and are only lent to the supplier. The supplier shall keep the tools in usable condition at its own expense; in particular, it shall service and maintain them appropriately and professionally. After the fulfillment of its contractual obligations, or if no contract results or the contractual relationship is ended, the supplier shall immediately return the tools to us in proper working order without being prompted. In addition, the supplier shall immediately return the tools to us in proper working order if we so request. The supplier bears the risk of accidental loss and accidental deterioration of the tools in his possession and commits to notify us about any damage to the tools without delay. In addition, the supplier is liable for any intentional or negligent damage or impairment to the tools for the duration of its possession of the tools. These provisions apply accordingly to tools that the supplier manufactures or has third parties manufacture for the production of the products intended for us and whose manufacturing costs have been borne by us. The supplier may exclusively use the tools that fall under the scope of this clause 2 in connection with the production of the products intended for us. The supplier commits not to leave these tools to third parties for inspection or other purposes without our prior written consent. Furthermore, the supplier commits not to leave the products manufactured using these tools to third parties either in raw condition or as semi-finished or finished products without our prior written consent. The same applies to products that the supplier developed according to our specifications or with substantial cooperation from us (through tests, etc.).
3. Terms and Conditions of Delivery – Delivery Dates – Delay
Unless otherwise agreed, the delivery shall be made DAP (Incoterms 2010) to the place of delivery that was stated in our order, or, if no place of delivery was specified in our order, DAP to our company headquarters. If agreed delivery dates are not adhered to, we are entitled to claim damages after unsuccessful expiration of an appropriate notice period and to withdraw from the contract, unless the supplier is not responsible for the delay. If the supplier is in default, we are entitled to demand a lump-sum for the damage caused by the delay of 0.5% of the order value of the delayed services for every full week of the delay, but no more than 10% of the total order value. Both parties are entitled to present evidence that greater, less or no damage at all has been incurred. As soon as the supplier recognizes that it cannot perform the service on time, wholly or in part, it shall notify us immediately in writing, indicating the reasons and the anticipated duration of the delay. Neither the notification nor our silence shall constitute an acknowledgment of a new delivery date or affect our contractual and legal rights and claims. Partial services are only permitted with our express, prior written consent. The acceptance of partial services or delayed services shall not affect our contractual and legal rights and claims. We do not agree to any exemptions from liability and/or liability limitations of the supplier of any nature in case of a delay in delivery.
4. Shipping – Packaging – Costs – Transfer of Risk
The supplier commits to specify our order number on all shipping documents and delivery notes and to clearly specify the content of the shipment. Unless otherwise agreed, the delivery shall be made to our company headquarters or to the other destination specified by us free of freight and packaging costs. All costs for shipping and packaging are included in the price. The supplier is obliged to ensure proper packaging and proper dispatch. The selection of the suitable shipping company is the responsibility of the supplier. Unless otherwise agreed, the supplier shall collect the shipping packaging of the delivery items from our company headquarters or from the other destination named by us and dispose of them at their own expense. The readiness to ship is always to be reported to us. We have transport insurance. In this regard, the supplier shall immediately notify us of any transport damage. The risk of accidental loss and accidental deterioration shall not pass to us until the products have been properly handed over. The supplier shall have the receipt of delivery confirmed in writing by a person authorized by us.
5. Prices – Pricing – Payment
Unless otherwise agreed, all agreed prices are fixed prices and are subject to no subsequent changes. Unless otherwise agreed, the prices include delivery to the destination as well as the costs for shipping and packaging and the disposal of the packaging. Unless otherwise agreed, we will pay invoices within 30 days net. The deadline runs from the time we receive a proper and comprehensible invoice, but at the earliest from the time we receive the delivery. All payments are subject to reservation and do not constitute acceptance or recognition of a service as contractual.
6. State – Quality Standards
All deliveries and services shall comply with the latest state of the art, the relevant legal provisions and regulations as well as the guidelines of authorities, professional associations and trade associations and be suitable for the intended use. In particular, the accident prevention regulations, other health and safety regulations and the generally accepted safety and occupational medical regulations shall be observed. Furthermore, we assume that the respective persons have the necessary skills and qualifications for preparing the deliveries and services. Moreover, deliveries and services are to be rendered with due care. For services that form the basis of drawings, plans or other specifications or order documents featuring characteristics of state, the specifications and characteristics of state contained therein shall be strictly adhered to. They precede the - otherwise applicable - industry standards. The supplier is only allowed to make changes to the design or quality of the services to be rendered with respect to the agreements reached or with respect to previous services if prior sampling has been done and prior written approval has been issued by us. In case of doubt, the supplier shall inquire about the intended use or the type of further processing. A partial acceptance or processing of the delivered products does not constitute acceptance without complaint. All defect claims shall be maintained notwithstanding partial use or processing of the delivered products,.
7. Claims for Defects
In the case of delivery of defective products, we may, at our discretion, demand that the defect be remedied or that a defect-free product be delivered within an appropriate grace period. The supplier shall bear the expenses and costs required for the purpose of subsequent performance. In particular, the supplier shall bear all costs and expenses incurred in connection with establishing and correcting the fault, even if they are incurred by us, especially inspection costs, dismantling and installation costs, labor costs, material costs, transport costs and other costs for subsequent delivery and repair. This shall also apply insofar as the expenses are increased by the fact that the delivery item has been taken to a place other than the place of performance, but not if disproportionate costs arise. The type of subsequent performance chosen by us as well as the subsequent performance as such shall not be refused on the grounds that the latter is only possible with disproportionate costs as long as the cost of the (selected) subsequent performance does not exceed the original purchase price of the defective goods more than threefold. In urgent cases (if the supplier is in behind with remedying a defect or if we are threatened by unusually high damages), we shall be entitled to remedy defects at the cost and risk of the supplier itself or have them remedied by third parties, even if the law of sales contracts applies. However, the applicability of the law of sales contracts shall not apply if the supplier is not responsible for the defect. If (a) we have given the supplier an appropriate grace period for subsequent improvement or for additional delivery and this has not been done, (b) subsequent performance has failed, (c) is unreasonable, (d) is refused by the supplier seriously and finally, or, (e) there are particular circumstances, which, when the interests of both parties are weighed, justify the enforcement of the additional rights described below, we shall be entitled to reduce the purchase price by the ratio in which the value of the product in its defect-free state at the time the contract was concluded would have stood to the actual value (decrease) or to withdraw from the contract. In each case, we are entitled additionally or alternatively to claim damages suffered as a result of defective products being delivered unless the supplier is not responsible for the breach of duty. Claims based on defects will be subject to a limitation period of two years from the transfer of risk unless a longer limitation period is provided by law or we have agreed to a longer limitation period with the supplier. We do not agree to a limitation of our legal claims for damages, either with regard to the degree of culpability or with regard to the extent of liability and the liability sum. In addition, the statutory provisions on the supply of defective products apply. The enforcement of further claims resulting from the delivery of defective products by us remains unaffected.
8. Duties to Inspect and Complain
The supplier shall supply the products 100% inspected. Following receipt of the deliveries, we only check whether the goods match the quantity and type ordered and whether there is any transit damage visible on the outside. In this respect, the supplier waives any additional statutory requirements for incoming goods inspection. If we identify defects as part of a random inspection, we shall be entitled to choose to send the entire delivery back without further inspection, or check the entire delivery or have it checked by third parties and charge the supplier for the inspection costs entailed. The period for complaining about defects is 10 working days. The period for making complaints starts when the goods are handed over in the case of obvious defects and when the defect is discovered in the case of defects that are not obvious.
9. Quality Assurance
The supplier shall carry out quality assurance checks employing the best available technology appropriate to the type and scope of the order and provide evidence of this if requested to do so. The supplier is obliged, if we so request, to conclude an appropriate quality assurance agreement based on QS 9000 or any subsequent or supplementary norms. In addition, the supplier will endeavor to comply with the requirements of ISO/TS 16949 and ISO 14001 as far as possible.
10. Force Majeure
Unforeseen events over which we have no influence and for which we are not responsible, such as malfunctions, strikes, lock-outs, changes to laws and other cases of force majeure, shall exempt us from the obligation to accept the service if the service can no longer be utilized from an economic viewpoint because of these circumstances. In this case, we are entitled to withdraw. This also applies to unforeseen and unavoidable production changes.
11. Provision of Materials and Products – Documentation
Materials or products provided by us will remain our property. They may only be used in accordance with the law. Any joining, processing or mixing of materials or products provided by us shall always take place for us as manufacturer but without any obligation for us. If the (co)ownership lapses as a result of the joining, processing or mixing, it is agreed now that the (co)ownership of the new object will pass to us pro rata according to the ratio of the value of the provisions to the value of the entire product. The supplier shall store the items subject to our (co)ownership free of charge. All documentation, plans, illustrations, calculations, drafts, manufacturing regulations, samples, drawings etc. (hereinafter referred to collectively as "documentation"), which we make available to the supplier so that it can submit a quotation or carry out a contract, will remain our property. The supplier may only use the documentation in the context of fulfilling the contract. Documentation is to be returned to use voluntarily free of charge as soon as it is no longer needed to prepare a quotation and to carry out the contract, including any copies that may have been made. The supplier commits not to cede the documentation to any third party without our prior written consent and also to keep the content of the documentation secret from third parties.
12. Retention of Title and other Security Interests
We accept our suppliers' regulations on retention of title only in the form of a simple retention of title (retention of the supplier's title until payment for the deliveries in question). All forms of retention of title above and beyond this - in particular, the so-called expanded or extended retentions of title as well as group retentions - and other security interests are excluded.
13. Product Liability
The supplier is obliged to indemnify us against claims under producer and product liability if the defect causing liability is attributable to a product supplied by the supplier and it cannot prove that the defect does not result from its manufacturing or organizational area. The claim also covers the costs of a possible product recall. The supplier shall indicate the risks resulting from its product if it is not used as intended. The supplier is obliged to conclude a third party liability insurance policy for an appropriate amount to cover the aforementioned risks and to provide us with evidence of this on request. Any additional claims to which we may be entitled shall remain unaffected.
14. Third Parties' Property Rights
The supplier warrants that no third parties' patents or other property rights (such as utility models and designs, trademarks and copyrights) are breached in connection with its services. This applies to the place of manufacture and delivery for all countries to which the supplier's products or Balluff products in which the products of the supplier are contained or installed, are marketed or distributed. Should third parties make a claim against us because of a breach of this kind, the supplier is obliged to indemnify us against these alleged or actual claims unless the supplier is not responsible for the breach. In such cases, the supplier shall also be obliged to reimburse us for all damages as well as the necessary costs and expenses incurred by us from or in connection with use by the third party. Otherwise, the regulations contained in clause 7 of these conditions of purchase apply mutatis mutandis to defects of title.
15. Limitation/Restriction of Liability
Under the legal provisions and these conditions of purchase, the supplier will be liable - irrespective of the legal ground involved - without restriction. Any restriction of our statutory and contractual claims to compensation for damages (in particular, as a result of the Supplier's liability for delay, defects and the product) is explicitly contradicted both with regard to the negligence criterion and with regard to the extent and amount of liability.
16. Conflicting Bans on Retention and Offset - Assignment
If a service is defective, we shall be entitled to retain our payments to an appropriate extent, unless something else results from good faith. The assignment of claims directed toward us will only be effective with our prior written consent. We do not agree to a restriction of our statutory options of offset and the enforcement of rights of retention. The supplier shall only be entitled to rights of retention if its counterclaims are legally established, undisputed or acknowledged by us. In addition, the supplier is entitled to exercise a right of retention only to the extent that its counterclaim is based on the same contractual relationship.
17. Compliance with Laws
The supplier guarantees that it shall comply with the applicable laws, regulations and other legislation and trade practices that are applicable to the supplier's business area, in particular concerning the development, manufacturing, sales, transport, export, certification of the products supplied by him. In particular, this applies to the legal provisions with respect to the safety- and environment-related manufacture and processing of technical products, the generally accepted rules of technology and the other provisions that represent the state of the art at the time of delivery. At our request, the supplier is prepared to confirm compliance with the above laws, etc. in writing. The supplier shall compensate us for all damages and costs incurred by the supplier from culpable non-compliance with the above regulations and shall indemnify us against any claims from third parties that have been raised against us in this connection.
18. Export Control and Customs
For goods, the Statistical Goods Number (e.g., 85340011 or HS code or customs tariff number) and the country of origin of the goods shall be indicated. For listed goods, the national export list number or the export list number of Annexes I to IV of the EC Dual-Use REG shall be indicated, as well as those of the USA if the goods are subject to US re-export regulations. Goods specially designed for military purposes are to be marked as "specially designed". Preferential certificates of origin, as well as declarations of conformity and markings of the country of origin or destination, are to be presented to us unrequested, as well as autonomous certificates of origin upon request.
19. Place of Performance – Place of Jurisdiction – Applicable Law
The place of performance for all deliveries and services is our company headquarters. Our company headquarters is the place of jurisdiction. We are, however, entitled to choose to bring an action against the supplier at its general statutory place of jurisdiction. Only German law will apply, to the exclusion of provisions on the conflict of laws and the UN Convention on Contracts for the International Sale of Goods (CISG).