I. Scope

(1) These General Conditions of Purchase (hereinafter GCP) govern all transactions of suppliers with the company Münch Chemie International GmbH, Weinheim (hereinafter Münch). They form an integral part of all contracts of Münch, in particular contracts regarding the purchase and/or delivery of moveable goods (”goods”), regardless of whether the supplier manufactures the goods itself or obtains them from other suppliers (§§ 433, 651 German Civil Code - BGB). They additionally apply for the provision of services (”service”) and the acquisition of software products (”software”). Unless otherwise agreed, the GCP apply in the version valid at the time of the order, or at least in the version last provided to the supplier in text form as a framework agreement.

(2) These GCP apply exclusively. All quotes, goods deliveries and services of the supplier take place exclusively on their terms, even if their applicability was not specifically agreed. Deviating, opposing or supplementary general terms and conditions of the supplier shall only be considered part of the contract if Münch has explicitly consented to their applicability in writing. An unconditionally accepted quote or an unconditionally accepted delivery of goods or services shall not be deemed to constitute such consent by Münch. Upon formation of the contract, the supplier explicitly recognises the exclusive applicability of these GCP.

(3) General business or delivery conditions of the supplier or of third parties have no application, even if their applicability was not objected to by Münch in individual cases. Even if Münch refer to a letter of a supplier or a third party containing general business or delivery conditions, this shall not constitute acceptance of their applicability.

(4) Individual agreements with a supplier made on a case-by-case basis (including side agreements, supplements and amendments) take precedence over these GCP. Evidence of
the contents of such supplemental agreements, with reservation of counter-evidence, requires a written contract or a written confirmation on the part of Münch within the meaning of Item II of the GCP.

(5) References to the application of legal provisions are only of a clarifying nature. Legal provisions also apply without such a clarification insofar as they are not directly modified or
explicitly excluded by these GCP.

 

II. Form

Legally relevant declarations and notifications by Münch in relation to the contract (e.g. orders, confirmations, deadlines, warnings, withdrawal) must be submitted in writing or in text form (e.g. letter, e-mail, fax). Legally mandated form requirements and further evidence, in particular in the existence of doubts about the legitimation of the declarer, remain unaffected.

 

III. Formation of the contract

(1) An order by Münch is deemed binding at the earliest upon written submission or confirmation. The supplier shall inform Münch of obvious errors (e.g. typing and calculation errors) and incompleteness in the order, including in the order documentation, so that Münch may correct or complete it before acceptance of the order; otherwise the contract is deemed not formed.

(2) Münch is entitled to revoke orders without a fee if the supplier fails to confirm these as is within two weeks from receiving the order (acceptance). A delayed acceptance is deemed a new quote and requires acceptance by Münch.

 

IV. Delivery times, grace periods, consequences of missed deadlines

(1) The deadlines and delivery times cited in the order or otherwise agreed are binding. Should delays in delivery be expected, the supplier must inform Münch immediately in writing or in text form within the meaning of Item II of the GCP.

(2) Münch is entitled to refuse acceptance, withdraw from the contract and/or claim damages if the supplier fails to deliver the goods or services within an adequate grace period set by Münch after the passing of the deadline cited in the order or otherwise agreed. Münch is also entitled to withdraw if the supplier is not responsible for the delay. The supplier shall bear any costs arising to Münch from this delay, in particular due to obtaining the goods or services elsewhere.

(3) In the event of a delay in delivery, Münch is furthermore entitled, for every started week of delay, to demand a contractual penalty in the amount of 1%, but in total at most 5% of the order value. The assertion of additional damages remains reserved; the contractual penalty shall be counted towards the damages for delays to be paid by the supplier.

 

V. Execution of deliveries and services

(1) The delivery or service shall be performed properly, packaged for transport and as a “free delivery” to the address provided by Münch or performed there at the cost and risk of the supplier.

(2) Suppliers may only sub-contract their work with the prior consent (according to Item II of the GCP) of Münch, insofar as this does not refer to the delivery of common components. Calls for delivery are binding in terms of the type and quantity of called-for goods as well as the delivery time within the meaning of Item IV of the GCP.

(3) Partial deliveries or early deliveries require the prior consent of Münch in accordance with Item II of the GCP.

(4) Every delivery must be accompanied by a delivery slip containing the order number of Münch as well as the designation of the contents by type and quantity.

(5) The delivery of the goods shall generally take place in common standard packaging. The supplier shall choose a cost-effective and suitable packaging and shipping option. In the event of culpable disregard of this obligation, all costs arising from this, such as replacement of damaged goods, excess shipping costs, disposal and the like, shall be borne by the supplier. When using reusable packaging, the supplier shall place the packaging at the temporary disposal of Münch. Return of the packaging shall be at the cost and risk of the supplier. Should Münch exceptionally declare its consent to accept the packaging costs, these shall be calculated at the demonstrable cost price.

(6) For delivered machines and equipment, a technical description and a manual shall be included free of charge.

(7) The delivery of software shall include the installation of the software at Münch and the individual customisation of the software for the purposes of its use, regardless of whether it is provided on a data medium or online for download. For software, the delivery obligation is only concluded when the complete documentation has also been handed over.

(8) Should the supplier provide deliveries or services on the grounds of Münch, it must observe the instructions for safety and environmental and fire protection for visitors in the currently valid version.

 

VI. Safety requirements, environmental protection, export controls

(1) The supplier shall ensure that the goods delivered by it satisfy all relevant requirements for sale in the European Union and the European Economic Zone.

(2) Deliveries and services must conform with the legal provisions, in particular the safety and environmental protection provisions including the Hazardous Goods Directive, the German Electric and Electronic Goods Disposal Act (ElektroG) and the safety recommendations of the competent German specialist bodies or associations, e.g. VDE, VDI, DIN. Relevant certifications, inspection certificates and evidence shall be provided in the delivery free of charge.

(3) The supplier is obligated to know and observe the current status of the directives and laws affecting certain components of the goods with regard to materials restrictions. It is
furthermore obligated to not use any prohibited materials. Hazardous materials and those that should be avoided according to applicable laws and regulations must be stated by the supplier in the specifications. If relevant, the safety information sheets should already be submitted with the quotes and at the first delivery together with the delivery slip (at least in German or English). Information on exceeded material restrictions and the delivery of prohibited materials must be provided to Münch immediately.

(4) When delivering goods and performing services, the supplier alone is responsible for observing the accident prevention provisions. Any protective measures that these may call for as well as any instructions of the manufacturer shall be delivered together free of charge.

(5) The supplier is obligated to observe the applicable rules of national and international export control law, including embargo rules and sanctions lists, when delivering goods to fulfil an order of Münch (within the meaning of Item III of the GCP). In particular, it must observe the applicable export control and embargo rules as well as the sanctions lists of its home state and – if applicable to it – of the European Union. Should Münch require information and documents from the supplier for export control inspections by the relevant authorities, the supplier shall immediately provide Münch with the information and documentation requested by the inspection. The supplier shall indemnify Münch and hold it harmless for any liability asserted by the authorities or third parties against Münch due to a culpable violation of export control and embargo rules and sanctions lists by the supplier. The supplier furthermore undertakes to replace the damages incurred by Münch from the culpable violation by the supplier of export and embargo rules, sanctions lists, and the obligation to provide information in Item VI (5) clause 3.

 

VII. Customs, import provisions

(1) Deliveries and services from an EU member state require that the supplier provides Münch its EU VAT ID.

(2) Imported goods shall be delivered with customs paid. The supplier is obligated, in the framework of Regulation (EU) Nr. 952/2013 of 9 October 2013 laying down the European
Union Customs Code, to provide requested declarations and information, allow inspections by customs authorities and provide required official confirmations at its own cost.

 

VIII. Prices, VAT

(1) The prices are fixed prices and are binding on the supplier. They include the delivery free to site as well as all expenses and ancillary costs associated with the deliveries and services to be provided by the supplier (e.g. adequate packaging, transport costs including any transport and liability insurance).

(2) The mandatory VAT must be stated; otherwise it shall be deemed to be included in the price.

 

IX. Invoicing, payment

(1) Invoices shall be issued in text form within the meaning of Item II of the GCP and shall be transmitted electronically to invoice@muench-chemie.com. They must include Münch’s order number.

(2) The supplier’s claim to payment becomes due 90 days after complete delivery of the goods and the handover of all documentation included in the scope of delivery and after Münch has received an invoice in due form (pursuant to Item VIII of the GCP). Münch shall not owe any interest on deferred payments.

(3) Payments shall not represent a recognition of the delivery or service as conforming to the contract. In the event of incorrect or incomplete delivery or service, Münch is entitled, its other rights notwithstanding, to retain payments of claims from the business relation in an appropriate scope until proper performance has been made.

(4) The assigning of claims against Münch by the supplier to third parties is excluded. This does not apply for monetary claims.

(5) The supplier shall only have a right to offset or retain funds in the case of legally confirmed or undisputed counter-claims.

 

X. Ownership rights

(1) The ownership of the delivered goods is transferred to Münch following payment of the price within the meaning of Item IX para. 2 of the GCP.

(2) Any extended, expanded or transferred retention of ownership is excluded.

 

XI. Place of performance, transfer of risk, commissioning and use

(1) The place of performance shall be that place to which the goods or software are to be delivered or at which the service is to be performed. The place of performance for payments by Münch is the headquarters of Münch.

(2) The risk of loss of or damage to the delivery is transferred to Münch only with the acceptance of the goods by the shipper contracted by Münch or by Münch at the place of performance, depending on which occurs later, even if Münch has declared its willingness to bear the shipping costs.

(3) The commissioning of machines or equipment and the use of software do not represent a confirmation by Münch of their proper condition.

 

XII. Obligation to inspect and notify of defects, inspection expense, notification of defects, goods return

(1) The legal provisions (§§ 377, 381 German Commercial Code - HGB) apply for the commercial obligation to inspect and notify of defects to the extent below: The delivered goods shall be inspected by Münch based on the accompanying documents only for their identity and quantity and for visible transport damage to the exterior. Otherwise, the type and scope of the inspection depends on the extent to which it is feasible in the normal course of business under consideration of the individual case. In the event that the supplier is obligated to deliver the goods to a third party named by Münch (direct delivery), Münch shall ensure that the inspection by the third party occurs with Münch’s collaboration after delivery to the third party. Defects of the delivered goods shall be immediately notified to the supplier as soon as they are determined in the normal course of business. Münch’s obligation to notify of defects detected later remains unaffected, both for deliveries to Münch and for direct deliveries. Without prejudice to Münch’s obligation to inspect, the notification of defects shall be deemed as immediate and timely in all cases if it is sent within fourteen (14) days of the discovery or, for obvious defects, after delivery of the goods.

(2) Should Münch return defective goods, Münch is entitled to request repayment of the invoice amount in addition to a flat fee of 5 % of the net price of the defective goods. Münch reserves the right to demonstrate higher expenses. The supplier reserves the right to demonstrate lower or no expenses.

(3) In the event of an unjustified notification of defects, Münch shall only be liable if Münch recognised, or failed to recognise due to gross negligence, that there was no defect.

 

XIII. Warranty for defects in quality and title, grace period

(1) Regarding the rights of Münch in the case of defects in quality and title of the goods and software delivered and the services provided by the supplier, the legal provisions apply,
insofar as nothing else is agreed below.

(2) Defective deliveries shall be immediately replaced by defect-free deliveries and defective services shall be repeated without defects within a grace period set by Münch. In urgent cases (in particular where there is a risk to operational safety or to prevent extraordinarily high damages) or to remedy minor defects, Münch is entitled to set a short grace period for the supplier that is adequate based on the specific situation according to Item XIII (2) clause 2 of these GCP. This shall also apply if Münch must immediately remedy defects in the delivery to avoid a delay in its deliveries.

(3) During the time in which the object of the delivery or service is not in Münch’s possession due to the remediation of the defect, the supplier shall be liable for the damage, loss of value or loss of this object.

(4) In addition, Münch is entitled to reduce the purchase price or withdraw from the contract in the event of a defect of quality or title in accordance with the legal provisions. Furthermore, Münch has a right to compensation for damages and expenses in accordance with the legal provisions.

 

XIV. Warranty periods and expiry

(1) The claims of Münch and of the supplier expire pursuant to the legal provisions unless otherwise specified below.

(2) Deviating from § 438 para. 1 Nr. 3 BGB, the general period of limitation for claims for defects is three (3) years from delivery to the place of performance pursuant to Item XI (1) of the GCP. The three-year period of limitation applies correspondingly for claims for defects in title, with the legally mandated period of limitation for real obligations towards third parties (§ 438 para. 1 Nr. 1a) BGB) remaining unaffected; claims arising from defects in title furthermore never expire as long as the third party can still assert the right – in particular due to it not having expired – against Münch.

(3) The periods of limitation in commercial law, including the above extension, apply – to the extent stipulated by law – for all contractual claims for defects. Insofar as Münch is also
entitled to non-contractual damage claims due to a defect, the regular legally stipulated period of limitation applies (§§ 195, 199 BGB), if the application of the periods of limitation of commercial law in the individual case does not result in longer periods of limitation.

(4) Upon receipt of Münch’s notification of defects by the supplier, the expiry of the claims for defects is suspended until the supplier rejects the claims of Münch or declares the defect to be remedied or otherwise refuses to continue negotiations about Münch’s claims.

(5) In the case of new deliveries or replacement deliveries and remedies of defects, the period of limitation for claims for defects for newly delivered or replaced and improved parts starts anew, unless Münch should have assumed from the supplier’s behaviour that the latter did not consider itself obligated to carry out the measures but did so only out of good will or similar reasons.

 

XV. Withdrawal and termination in the case of repeated defects or delays

(1) Münch is entitled, in the event of repeated defects or delays on the part of the supplier, to withdraw with immediate effect from a contract, even if the delivery or service from this
contract has not yet been performed or is not yet due. Repeated defects or delays shall be deemed to exist when the supplier delivers or performs goods or services of the same type with defects or delays at least three times within twelve months. The withdrawal requires a prior warning in text form (within the meaning of Item II of the GCP) after the second defect or delay on the part of the supplier within the meaning of Item XV (1) clause 2 of the GCP. The warning shall cite the previous defects or delays of the supplier and demand that they cease in the future and shall contain a warning of withdrawal in the event that these are repeated. If several contracts exist between the supplier and Münch due to different orders within the meaning of Item III of the GCP and for which the deliveries or services have not yet been performed or are not yet due, Münch may declare the warning and the subsequent right to withdraw for these or for all contracts.

(2) Should a framework agreement exist between the supplier and Münch on the basis of which orders within the meaning of Item III of the GCP for deliveries or services are issued by Münch, Münch is entitled, in the event of repeated defects or delays within the meaning of Item XV (1) clause 2 of the GCP, to terminate the framework agreement with immediate effect for good cause. The termination requires a prior warning within the meaning of Item XV (1) clause 3 and 4 of the GCP, with a warning to terminate instead of a  warning to withdraw. The termination must be received by the supplier at the latest one (1) month after Münch has become aware of the third defect or delay. The declaration of termination requires the text form in accordance with Item II of the GCP. The rules cited above in Item XV (2) of the GCP apply only insofar as and to the extent that no other agreements were reached between the supplier and Münch in the framework agreement.

 

XVI. Indemnity against liability for defects in quality and title and production errors

(1) The supplier shall indemnify Münch against all claims asserted against Münch by third parties – regardless of the legal grounds – due to a defect in quality or title and shall reimburse Münch for the necessary costs of associated legal proceedings.

(2) The supplier is responsible for all claims for damages and injuries asserted by third parties arising from a product delivered by it and undertakes to indemnify Münch and hold it harmless for any resulting liability. The supplier shall also reimburse Münch the necessary costs of the associated legal proceedings as well as all costs associated with a recall action, provided that Münch is obligated towards third parties to recall products due to a defect in a product delivered by the supplier.

 

XVII. Ownership and intellectual property rights for technical documentation, tools, means of production

(1) Technical documentation, tools, specification sheets, means of production, etc. made available by Münch remain in the ownership of Münch. Duplication of the cited objects is only permissible to the extent that it is required to fulfil the order. The objects cited in Item XVII (1) clause 1 of the GCP as well as their duplicates shall be used exclusively for the contractual delivery and service and shall be returned to Münch together with all duplicates unrequested; the supplier is therefore not entitled to assert a right of retention. The supplier may neither cede nor otherwise make accessible to third parties the objects cited in Item XVII (1) clause 1 of the GCP.

(2) Should the supplier create the objects cited in Item XVII (1) clause 1 of the GCP at Münch’s expense in full or in part, Item XVII (1) of the GCP applies accordingly; Münch accordingly becomes (co-)owner upon their creation in accordance with its share of the creation costs. The supplier shall keep these objects for Münch free of charge; Münch may at any time acquire its rights in relation to the object upon compensation for unamortised expenses and may request the object.

(3) The supplier is obligated to care for and maintain the objects in Item XVII (1) and (2) of the GCP and to remedy normal wear and tear. Should the supplier contract a sub-contractor to manufacture tools and samples to execute the order, the supplier shall assign to Münch its claims against the sub-contractor for the transfer of ownership of the tools and samples.

(4) The supplier is informed of the existence of the following intellectual property rights and undertakes to only use them to fulfil the order: For the documents cited in Item XVII (1) of the GCP and for order documents of Münch, Münch holds a copyright. The cited documents and order documents may include marks that are registered to Münch. Tools and means of production bear registered patents and designs whose owner is Münch.

(5) A use of the intellectual property rights listed in Item XVII (4) of the GCP that goes beyond the rules therein requires the prior consent of Münch.

 

XVIII. Provision of materials

(1) Materials provided by Münch for manufacture remain the property of Münch and shall be kept by the supplier free of charge and with due care, separate from its own assets and marked as the property of Münch. They may only be used to fulfil the order. Damage to provided materials shall be remedied by the supplier.

(2) Should the supplier process the provided materials or reconfigure them, this activity shall be on behalf of Münch. Münch shall directly become the owner of the new objects thus created. Should the provided materials only form a part of the new objects, Münch shall have coownership of the new objects in relation to the value of the provided materials they contain.

 

XIX. Confidentiality

(1) The supplier is obligated to handle all not publicly known commercial and technical facts of which it becomes aware confidentially and to not disclose them to third parties.

(2) Manufacture for third parties, the presentation of products made specially for Münch, in particular if according to its plans, drawings or other specific requirements, as well as
disclosures regarding the orders and references to these orders to third parties require the prior written agreement of Münch.

 

XX. Data protection

(1) Should the supplier gain access to personal information of which Münch is the controller, the supplier is obligated to ensure the observance of the applicable data protection laws, in particular the obligations arising from the EU’s General Data Protection Regulation (GDPR), with regard to its employees and suppliers. In particular, the following provisions – in part supplementing the legal obligations – shall apply:

a) Personal data shall be processed exclusively for the purpose of fulfilling the obligations arising from the respective order or the respective contractual relation (”principle of
purpose”);

b) The supplier shall ensure that its employees only have access to personal data to the extent that this is required for the purpose. All employees shall be obligated in writing to observe the mandatory data protection provisions;

c) The supplier shall undertake to implement state-of-the-art technical and organisational measures to guarantee and permanently ensure a level of protection for personal data that is proportional to the risk;

d) The transmission of personal data to third countries is only permissible under observance of the conditions stipulated in Art. 44 et seq. GDPR;

e) The supplier shall delete the data without delay as soon as these are no longer required for the purpose and in accordance with the mandatory retention periods.

(2) Insofar as the supplier processes personal data on behalf of Münch, the parties shall conclude a separate agreement on order processing in accordance with Art. 28 GDPR. The supplier undertakes to only use subcontractors who offer sufficient guarantees for compliance with data protection requirements and only with the prior written consent of Münch.

 

XXI. Observance of laws

(1) The supplier undertakes to observe the relevant legal provisions in its legal relationship with Münch, in particular anti-corruption and money-laundering laws as well as anti-trust, labour and environmental protection regulations and provisions in human rights conventions.

(2) The supplier shall make all reasonable efforts to ensure that the obligations cited in Item XXI (1) are also observed by its suppliers.

 

XXII. Choice of law, place of jurisdiction, language

(1) The Regional Court of Mannheim (Germany) has exclusive jurisdiction for contractual and non-contractual disputes between the supplier and Münch if the supplier is either a
commercial enterprise, a public sector corporation or a public law special fund within the meaning of German law or has no general place of jurisdiction in the Federal Republic of
Germany.

(2) For these GCP and the further legal relations between the supplier and Münch, including the agreement on the place of jurisdiction in item XXII (1) of the GCP, the laws of the Federal Republic of Germany apply under exclusion of international uniform rules (in particular the UN Convention on the International Sale of Goods/CISG).

(3) The German language is the language of the contract and of negotiations, provided that no other agreement in this regard was reached between the supplier and Münch.

 

Münch Chemie International GmbH

ADDRESS
Münch Chemie International GmbH Viernheimer Straße 70-76 D-69469 Weinheim

CONTACT
+49 6201 99 83-0
info@muench-chemie.com

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