1. Validity
1.1 The following terms and conditions apply to all current and future orders and other transactions with companies, legal entities under public law, or special funds under public law (“suppliers”). Deviations from these terms and conditions shall only apply if we have agreed to them in writing. We do not accept the supplier’s general terms and conditions.
1.2 Individual agreements made with the supplier in individual cases shall in all cases take precedence over these General Terms and Conditions of Purchase.
2. Conclusion of contract, confidentiality, customer protection, contractual penalty
2.1 Offers must generally be submitted in writing and free of charge to us.
2.2 Orders and their amendments are only valid if they are placed or confirmed by us in writing.
2.3 Any ancillary agreements and amendments shall only be valid in writing.
2.4 We reserve ownership and exclusive rights of exploitation of all information, findings, and documents provided by us for the purpose of the order, unless the contract with the supplier stipulates otherwise. The supplier undertakes to keep confidential all non-public information, findings, and documents received from us or otherwise obtained from our area of expertise, such as technical and other data, measurements, technology, operating experience, trade secrets, know-how, compositions, and other documentation (“Information”), not to make them accessible to third parties without our consent, and to use them only for the purpose of fulfilling the respective contract. Employees, staff, and subcontractors must be bound to confidentiality in accordance with this Section 2.
2.5 After completion of the order, all documents submitted for the purpose of the order must be returned to us, all copies of them destroyed, and all files relating to them deleted. This confidentiality obligation also applies for a period of four years after completion of the order.
2.6 For orders in which the supplier supplies us with complete soundproofing systems or parts thereof, the supplier is obligated not to establish direct contact with our customers without our consent during order fulfillment. If this is nevertheless necessary for execution, our written consent must be obtained, and the supplier must prepare a record of each conversation with the end customer and submit it to us. This also applies if the end customer seeks direct contact with the supplier. The supplier undertakes not to manufacture, distribute, or offer any products that are identical to the products the supplier manufactures for us, or that are similar to these products, or that can be substituted for them, insofar as we have an overriding interest in doing so. This also applies for a period of two years beyond any termination of our cooperation with us. For each case of violation of these obligations, a contractual penalty of €25,000.00 is agreed, which shall be in addition to the claim for injunctive relief. The parties reserve the right to prove significantly higher or significantly lower damages.
3. Delivery
3.1 Agreed dates and deadlines are binding. The delivery date specified in the order is binding and is understood to be based on the agreed delivery address. Compliance with this date is determined by our receipt of the goods and the necessary documentation. Acceptance of a delayed delivery or service does not constitute a waiver of claims for compensation. In the event of early delivery, our payment deadlines only apply from the delivery date specified by us. Any costs incurred by us, such as express freight, express delivery, telephone or fax charges, etc., shall be borne by the supplier.
3.2 The supplier is not entitled to make over- or under-deliveries.
3.3 If the supplier anticipates any difficulties in production or material procurement, they must notify us immediately, even if circumstances beyond the supplier’s control arise that could prevent timely delivery of the specified quality. If, before the due date for performance, there is a high probability
that the supplier will not be able to deliver on time, we are entitled, after giving notice, to prematurely withdraw from the contract if there is a risk that we, for our part, will be unable to meet deadlines with other contractual partners as a result. We are entitled to inspect the progress of work and conduct acceptance tests at the manufacturer’s plant. If contractually agreed dates or deadlines are exceeded with regard to the entire delivery or only a remaining delivery, we are entitled to withdraw from the contract even without setting a grace period.
3.4 Notwithstanding the above provisions, we are entitled to demand a contractual penalty in the event of a delivery/performance delay by the supplier. The contractual penalty shall amount to 1% of the total delivery/performance for each completed week of delivery/performance delay. Each working day of a commenced week shall be counted as 1/6 of a week. The contractual penalty shall be due if the supplier defaults and shall amount to a maximum of 5% of the total delivery/performance. The parties reserve the right to assert significantly higher or significantly lower damages.
3.5 All deliveries are made at the supplier’s risk and expense. We require the supplier to ensure customary and careful packaging. The regulations of the respective carrier, freight forwarder, or shipping agent must be observed. Reusable packaging must be labeled.
3.6 The delivery also includes assembly instructions, operating manuals and spare parts lists or other documentation necessary for proper use in the language and quantity specified by us.
3.7 Each individual delivery must be accompanied by a delivery note in duplicate. The delivery note, which must be submitted in duplicate, must include our order number and order date, as well as our project number and item number.
3.8 The provisions of this paragraph, with the exception of clause 3.4, also apply mutatis mutandis to scheduled partial deliveries. In the event of a delay in delivery/performance of the scheduled partial delivery, we are entitled to demand a contractual penalty. The contractual penalty shall amount to 1% of the scope of delivery/performance of the partial delivery for each completed week of delay in delivery/performance. Each working day of a commenced week shall be counted as 1/6 of a week. The contractual penalty shall be due if the supplier defaults and shall amount to a maximum of 5% of the scope of delivery/performance of the partial delivery. Both parties reserve the
right to assert significantly higher or significantly lower damages.
3.9 Acceptance of goods outside of the unloading times specified by us cannot be guaranteed. For individual packages weighing more than 2.5 tons, a shipping notice must be sent to us in advance.
4. Acceptance
4.1 We will inspect the goods/services within a reasonable period of time for any deviations in quality or quantity and notify any defects identified in a timely manner. A notification of defects is deemed to be timely if it is received by the Supplier within two weeks of delivery of the defect. A notification of hidden defects is deemed to be timely if it is received by the Supplier within two weeks of discovery of the defect.
4.2 If an acceptance test is agreed upon to determine the performance, it must be conducted in accordance with standard technical standards (e.g., VDI). For the acceptance of complete machines or assemblies, the special regulations specified in our orders apply.
5. Price and payment
5.1 The prices stated in the order are fixed prices.
5.2 Prices are quoted free from our works or the place of delivery specified by us, including packaging.
5.3 Payment shall be made in accordance with the mutually agreed payment terms.
5.4 We reserve the right to choose the method of payment.
5.5 Subsequent price increases are excluded without our written approval.
5.6 For assembly and subcontracting services, we will only accept addenda if these services have been approved by us in writing prior to their provision.
6. Invoice:
Invoices issued without our order number are deemed not to have been issued until clarification from the supplier. The same applies to delivery notes. Partial and remaining deliveries must be clearly marked on the invoices. They may not be enclosed with the goods under any circumstances. The invoice is easy to create and can be sent in paper form or digitally to e.invoice@faist.de. A separate delivery note and invoice must be created for each FAIST order.
7. Warranty/Liability
7.1 The supplier warrants that the delivery item is free of defects upon handover to us, has the quality resulting, in particular, from our order specifications, and corresponds to the latest state of the art in science and technology, the relevant laws, safety and accident prevention regulations, the Hazardous Substances Ordinance, and the usual technical standards (e.g., DIN or VDE), particularly with regard to a use that can reasonably be expected. If machines, devices, or systems are the subject of the service, they must comply with the requirements of the special safety regulations for machines, devices, and systems applicable at the time of contract fulfillment and bear a CE marking, and be accompanied by a declaration of conformity. All information provided by the supplier in its offers, brochures, and other documents shall be deemed to be the agreed quality.
7.2 The warranty period of 24 months expires:
// Date of delivery or acceptance for goods that are further processed by us,
// Date of acceptance by our customers for deliveries and services that are installed directly at our customer’s premises without further processing by us or the supplier.
7.3 The supplier undertakes to remedy defects at its own expense at the place of use within a reasonable period of time. In the event of delivery recourse pursuant to Section 478 Paragraph 2 of the German Civil Code (BGB), the supplier undertakes to also bear the costs of disassembly and assembly as part of the remedy of the defect. In cases where, due to particular urgency, it is no longer possible or reasonable for us to inform the supplier of the defect and the impending damage and to set a short deadline for remedy, we are entitled, upon notification to the supplier, to immediately replace defective parts ourselves or have them replaced by a third party. The associated costs shall be borne by the supplier.
7.4 For repaired or replaced parts, the warranty period begins again after acceptance of the work performed. For delivered parts that could not remain in operation due to warranty defects, the ongoing warranty obligation is extended by the period of the interruption in operation. This does not apply if, based on the supplier’s conduct, we had reason to assume that the supplier did not consider itself obligated to take the action, but merely carried out the replacement delivery or remedy of the defect as a gesture of goodwill or similar reasons.
7.5 If we are held liable by third parties under domestic or foreign law for defects in the goods delivered, regardless of fault, the supplier shall indemnify us to the extent that it would also be directly liable. The supplier undertakes to cover all costs incurred by us for the averting or preventing damage (e.g., recall campaigns). The supplier undertakes to take out sufficient liability insurance to cover claims for compensation due to any defects in the goods it has delivered. Upon our request, the supplier must immediately provide evidence of the insurance. However, the supplier is not relieved of liability for any further claims for damages that are not covered by the insurance.
7.6 If, in the event of a complaint by our customer, it turns out that the cause of the defect in question is due to defective parts supplied by the supplier, the material, travel and personnel costs incurred in determining the cause of the defect and in rectifying the defect shall, to the extent permitted by law, be borne by the supplier, regardless of whether they were incurred by us or our agents.
7.7 The warranty also extends to parts manufactured by subcontractors.
7.8 Until the expiration of the warranty period, we are entitled to a warranty retention amounting to 10% of the contract price, which can be replaced by the supplier at any time after acceptance by a directly enforceable, unlimited surety or a guarantee from a bank, savings bank, or credit insurer domiciled in Germany. In the event that the supplier becomes insolvent before our final payment, we are entitled, without prejudice to any further rights, to an additional security retention amounting to an additional 20% of the contract price for the duration of the warranty obligation to secure our warranty claims. This security retention amount can be replaced by the supplier at any time after acceptance by a directly enforceable, unlimited surety or a guarantee from a bank, savings bank, or credit insurer domiciled in Germany.
7.9 Acceptance and payment of the goods by us does not mean that we accept them as free from defects.
8. Third-party intellectual property rights, rights of use of software
8.1 The Supplier shall be liable in accordance with statutory provisions to ensure that the use of the delivered goods does not infringe any intellectual property rights, business or trade secrets or patent rights of third parties, both domestic and foreign.
8.2 The supplier shall be liable in accordance with statutory provisions for all damages incurred by us as a result of infringement of such intellectual property rights by the subject matter of the delivery. The supplier undertakes to indemnify us against any claims asserted by the owner of the intellectual property rights. This also applies to deliveries from third parties.
8.3. To the extent that software is used for the delivery, the supplier transfers the respective right of use to us. We are entitled to sub-transfer the right of use.
9. Retention of title, provision
9.1 If we provide parts to the supplier, we retain title to them. Processing or transformation by the supplier is carried out on our behalf. If our reserved goods are processed with other items that do not belong to us, we acquire co-ownership of the new item in proportion to the value of our item to the other processed items at the time of processing.
9.2 If the item provided by us is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the reserved item to the other mixed items at the time of mixing. If the mixing occurs in such a way that the supplier’s item is to be considered the main item, it is agreed that the supplier shall transfer proportionate co-ownership to us; the supplier shall safeguard the sole ownership or co-ownership for us.
9.3 We retain title to tools; the supplier is obligated to use the tools exclusively for the production of the goods ordered by us. The supplier is obligated to insure the tools belonging to us at their replacement value against fire, water, and theft at its own expense. The supplier is obligated to carry out any necessary maintenance and inspection work in a timely manner at its own expense. The supplier must notify us immediately of any malfunctions. The supplier will do everything in its power to prevent third-party interference with our property and will notify us immediately if third parties attempt to claim our property.
10. Product liability, indemnity and liability insurance coverage
10.1 To the extent that the supplier is responsible for product damage, he is obliged to indemnify us against claims for damages by third parties upon first request, provided that the cause lies within his sphere of control and organization and he is himself liable in external relations.
10.2 Within this framework, the supplier is also obligated to reimburse us for any expenses pursuant to Sections 683 and 680 of the German Civil Code (BGB) arising from or in connection with a recall campaign conducted by us. We will inform the supplier – as far as possible and reasonable – of the content and scope of the recall measures to be implemented
and provide the supplier with an opportunity to comment.
10.3 The Supplier undertakes to maintain product liability insurance with a coverage amount of €5 million per personal injury/property damage – lump sum. Any further claims for damages we may have shall remain unaffected.
11. Offsetting, Assignment
The supplier may not offset claims against us unless they have been legally established or acknowledged by us. Claims may only be assigned with our written consent. This does not apply to a mutual commercial transaction within the meaning of Section 354a of the German Commercial Code (HGB).
12. Miscellaneous
12.1 The Supplier undertakes to comply with Regulation (EC) No. 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH Regulation) and will confirm this to us in writing upon request.
12.2 The place of performance for all deliveries and services is the registered office of our company or the specified place of use.
12.3 For merchants, legal entities under public law, or special funds under public law, the place of jurisdiction is Krumbach. However, we are also entitled to bring the case before the court responsible for the supplier’s registered office.
12.4 German law shall apply, excluding its conflict of law provisions and the UN Convention on Contracts for the International Sale of Goods.
12.5 Should any of these terms and conditions or parts of these terms and conditions be or become invalid, the validity of the remaining terms and conditions shall not be affected.
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