Conditions of Purchase

§ 1 General - Scope

These terms and conditions of purchase apply exclusively to our orders; We do not recognize any conflicting or deviating or additional conditions of the supplier unless we have expressly agreed to their validity in writing. These terms and conditions of purchase also apply if we accept the deliveries and/or services of the supplier without reservation while being aware of the supplier's terms and conditions that conflict with or deviate from these terms and conditions of purchase.
These terms and conditions of purchase also apply to all future transactions with us, without us having to refer to them again in each individual case.
Correspondence must be conducted with our ordering purchasing department. Agreements with other departments require the express written confirmation of the ordering purchasing department to be binding.
These terms and conditions of purchase only apply to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB).
References to the validity of legal regulations only have clarifying meaning. Even without such a clarification, the statutory provisions apply unless they are directly modified or expressly excluded in these terms and conditions of purchase.

§ 2 Order - Confidentiality of Information - Prohibition of Reverse Engineering

If the supplier does not accept our order in writing within a period of 2 weeks after receipt, we are entitled to revoke it.
The supplier is obliged to keep secret all information obtained directly or indirectly from us and only to use it for the execution of our order and not to reproduce it without our prior express written consent. The protected information within the meaning of Section 2 (2) sentence 1 includes in particular technical data, illustrations, drawings, calculations and other information about products and product developments as well as software, goods, tools, goods, models, samples and prototypes, including the know-how contained therein.
The supplier may not subject software, goods, tools, goods, models, samples and prototypes obtained in accordance with Section 2 Paragraph 2 Clause 1 or other physical things obtained in accordance with Section 2 Paragraph 2 Clause 1 to reverse engineering without our prior express consent in writing, disassemble or decompile them.
We expressly reserve our property rights and copyrights to all information pursuant to Section 2, Paragraph 2; all information is to be returned to us without being asked after the order has been processed or at any time upon our request.
The obligations of the supplier according to § 2 paragraphs 2 to 4 continue to apply even after our order has been processed; the obligation of secrecy expires if and to the extent that the knowledge contained in the information was obtained without violating an obligation of secrecy or has become public knowledge.

§ 3 Prices – Terms of Payment

The price stated in the order is binding. Unless otherwise agreed, the prices are delivered duty paid (DDP according to Incoterms 2020) to the shipping address specified in the order, including packaging and ancillary costs. The supplier must take back packaging material at our request.
The supplier shall bear all customs duties, taxes, levies and other import costs incurred as a result of the order.
Prices do not include statutory sales tax.
We can only process invoices if they state the order number shown in our order; The supplier is responsible for all consequences arising from non-compliance with this obligation, unless he can prove that he is not responsible for them.
Unless otherwise agreed, we make payments within 14 days with a 3% discount or within 30 days net. The payment period begins as soon as the delivery and/or service has been rendered in full and the properly issued invoice has been received.
We are entitled to rights of offsetting and retention to the extent permitted by law.
The supplier is not entitled to assign claims to which he is entitled against us or to have them collected by third parties.
The supplier is only entitled to offset claims against us or to assert a right of retention if and to the extent that his claim is undisputed or his counterclaim has been legally established.
We do not owe interest on maturity. The supplier's right to payment of interest on arrears remains unaffected. Unless otherwise agreed in individual cases, the statutory provisions shall apply to the occurrence of our delay.

§ 4 Delivery

The dates and/or deadlines specified in the order are binding. The supplier is in default without the need for a reminder if he fails to perform in full or in part by the agreed date or within the agreed period.
The supplier is obliged to inform us immediately in writing if circumstances arise or become apparent to him which indicate that the agreed dates and/or deadlines cannot be met. The agreed dates and/or deadlines are not extended by this information.
If the supplier defaults, we are entitled to statutory claims. In particular, we are entitled to demand damages instead of performance and to withdraw from the contract after a reasonable period of time has expired without result. If we demand compensation, the supplier is entitled to prove that he is not responsible for the breach of duty.
Delivery is made in accordance with DDP (according to Incoterms 2020) to the delivery point described in Section 3 Paragraph 1 of these Terms and Conditions of Purchase, unless otherwise agreed between us and the supplier. Early deliveries or Services (also in parts) may only be carried out with our prior written consent.
The transport insurance is taken out and carried by us.

Section 5 Passing of Risk - Documents

The transfer of risk takes place at the delivery point described in § 3 paragraph 1 of these purchasing conditions, unless otherwise agreed between us and the supplier.
If acceptance has been agreed, this is decisive for the transfer of risk. The commissioning or use does not replace the declaration of acceptance.
The supplier is obliged to state our order number exactly on all shipping documents and delivery notes; if he fails to do so, we are not responsible for delays in the processing and payment of the invoice.

§ 6 Quality - environmentally friendly service provision - management system and documentation

Unless otherwise agreed, the supplier must always align the deliveries and/or services with the latest state of the art and inform us of opportunities for improvement and technical changes. Before making changes to manufacturing processes and facilities, materials or vendor parts for the deliveries and/or services, before relocating production sites, and before making changes to quality assurance measures, in particular processes or facilities for checking the deliveries and/or services that affect ordered deliveries and/or services, the supplier will inform us in good time so that we can check whether the changes could have a negative impact. Depending on the type and scope of the change, we decide whether approval is required. The obligation to notify does not apply if, after careful examination, the supplier can demonstrably rule out such adverse effects.
With regard to its deliveries and/or services, as well as in the case of sub-deliveries or additional services provided by third parties, the supplier is obliged to provide environmentally friendly services within the scope of economic and technical possibilities. Environmentally friendly service provision includes in particular the selection of environmentally friendly materials and production processes in product design (e.g. low-emission, low-pollutant and low-waste constructions that are easy to dismantle), the use of environmentally friendly and recyclable operating materials and generally resource-saving solutions (e.g.B. in relation to energy and material consumption).
Unless otherwise agreed, the supplier is obliged to provide the deliveries and/or services in such a way that in the entire supply or service chain, in particular in development, design, manufacture, packaging, transport, installation, operation, cleaning, maintenance, Maintenance and disposal that are observed at the place of manufacture and at the place of use specified by us, the statutory and official regulations, regulations, guidelines, ordinances and other legal standards, in particular with regard to quality, environmental protection, occupational safety, transport safety and product safety. If we do not specify a place of use, the seat of the ordering company is the place of use.
The supplier is obliged to determine and comply with the current status of the regulations specified in Section 6, Paragraph 3. We must be informed immediately of any changes to the regulations that have a direct or indirect impact on the deliveries and/or services.
In order to implement the requirements specified under Section 6 Paragraphs 3 and 4, the supplier must set up, use and further develop a suitable, industry-standard management system. The management system must include the supplies and ancillary services commissioned by third parties. If the supplier maintains a certified management system (e.g. according to ISO 9001, VDA 6.4, ISO 14001 or equivalent in their respective versions), he sends us the corresponding certificates regularly and without being asked, both for the first delivery and for each subsequent delivery as well as for each Updating the certificates.
The supplier must maintain a suitable, documented quality assurance system as part of its management system. He must design his quality assurance system in such a way that it corresponds to the latest state of the art. The supplier must create records of his quality tests and make them available to us immediately and free of charge upon request.
The supplier ensures the traceability of the delivered products at all times. For this purpose, the supplier shall ensure by labeling the products or, if this is impossible or inappropriate, by other suitable measures that, if a defect occurs in a product, it can immediately determine which other products may be affected. If an error occurs, the supplier will inform us immediately about all products that are affected by the error and have been delivered to us, as well as provide identification features that ensure precise identification of these products.
The supplier hereby agrees to audits to assess the effectiveness of its management system by us or by one of our representatives, if necessary with the participation of our (end) customer. Legitimate interests of the supplier, in particular confidentiality interests, must be taken into account during the audits. Audits are to be announced to the supplier in good time, if possible 2 weeks in advance.
The supplier must obligate his sub-suppliers to the same extent; Furthermore, he must promote and demand compliance with the obligations specified in this § 6 by his sub-suppliers in the best possible way.

§ 7 Entrance examination

Insofar as we are responsible for examining the goods and reporting defects in accordance with Section 377 (1) HGB, we will check immediately upon receipt of the goods whether they correspond to the quantity and type ordered and whether there are externally visible transport damages or defects.
If we discover a defect during the aforementioned checks, we will report this to the supplier. If we discover a defect later, we will also report this to the supplier.
Notifications of defects must be made within one month of delivery or, if the defects are only noticed during processing, processing or use, of their discovery.
We are not responsible for any further tests and notifications with regard to the supplier.

§ 8 Defects – liability for defects and other liability

The supplier guarantees that his deliveries and/or services are free of defects in accordance with the statutory provisions, in particular that they correspond to the latest state of the art, the agreed properties/specifications and other requirements expressly made of them.
We are entitled to the statutory warranty rights in full. We expressly reserve the right to compensation, in particular the right to compensation in lieu of performance.
The place of performance for supplementary performance is the place where the delivery and/or service is located according to its intended purpose. If the supplementary performance is carried out by a third party, this must be carried out in consultation with this third party and in compliance with his interests.
The supplier is liable for his representatives or subcontractors to the same extent as for his own fault.
We are entitled to remedy the defect ourselves at the expense of the supplier if there is imminent danger or there is a particular urgency.
The limitation period for claims for defects against the supplier is 36 months, calculated from the transfer of risk. This does not apply if the law provides for longer periods; in these cases, the statutory limitation period applies.
For the rest, the supplier is liable in accordance with the statutory provisions, without this liability being restricted or excluded in terms of reason or amount.
Our payment does not mean that we recognize the delivery and/or service as being in accordance with the contract or free of defects.
Our approval of the supplier's technical documents and/or calculations does not affect his liability for defects.

§ 9 Product Liability – Liability Insurance Coverage

In the event that a claim is made against us due to product or manufacturer liability, the supplier is obliged to indemnify us from such claims insofar as he is responsible for the error that triggered the liability. If we are required by our manufacturer's liability to carry out a recall and/or service campaign due to a defective product delivered by the supplier, the supplier shall bear all associated costs. Further legal claims remain unaffected.
As part of his obligation to indemnify, the supplier must reimburse our expenses in accordance with §§ 683, 670 BGB that result from or in connection with claims made by third parties, including recall campaigns and/or service campaigns carried out by us. Further legal claims remain unaffected.
In the event of a claim against us by third parties, the supplier assures us of his comprehensive and immediate cooperation in clarifying the facts and in handling the case.
The supplier undertakes to take out adequate public liability and extended product liability insurance with coverage of at least EUR 10 million per personal injury/property damage - flat rate - during the term of the contract at least until the expiry of the statute of limitations for any claims against the supplier arising from or in connection with the to maintain the delivery and/or performance of the supplier; however, our claims are not limited to the sum insured. The supplier is obliged to send us a corresponding confirmation of insurance immediately upon request.
If there is reason to assume that a delivery and/or service does not meet the applicable safety requirements, or that there is a significant risk even if the delivery and/or service is used as intended, we can request proof from the supplier that the device and service requirements have been observed product safety regulations. If the supplier does not provide this proof within a reasonable period of time, we are entitled to withdraw from the contract. Further legal claims remain unaffected.

§ 10 Retention of title to materials and parts provided

Substances and parts provided by us remain our property and are to be stored, labeled and managed separately free of charge. Substances and parts provided may only be used as intended. The processing of materials and the assembly of parts is done for us. It is agreed that we are co-owners of the products manufactured using our materials and/or parts in the ratio of the value of the provision to the value of the entire product, which are kept for us by the supplier in this respect.

§ 11 Endangerment of the fulfillment of the contract

If the supplier's economic situation deteriorates in a way that seriously jeopardizes the fulfillment of the contract, or if he stops making payments (even temporarily), or if insolvency proceedings or court or out-of-court composition proceedings are applied for, we are entitled to compensate for the unfulfilled withdraw part of the contract. We are entitled to withdraw from the contract in full if partial fulfillment of the contract is not of interest to us.

§12 Foreign trade law - bans on substances - supplier information

The supplier must provide the following information in offers and order confirmations: (i) Information as to whether the delivery and/or service is subject to an export license and information on the relevant list item number in accordance with German export law; (ii) Information as to whether the delivery and/or service is subject to an export license under the applicable EU Dual-Use Regulation and information on the corresponding list item number; (iii) Specification of a registration of the delivery and/or service according to US American (re-)export control law and specification of the corresponding list number (iv) Specification of the statistical commodity number and the country of origin of the delivery and/or service. In the case of deliveries and/or services which, according to our notifications to the supplier, are intended for Iran or Russia (directly or indirectly), the supplier must also state whether an export license is required under EU law for the deliveries and/or services concerned the relevant, current EU regulations as well as the relevant list item number of the current appendix, if applicable. In the case of deliveries and/or services which, according to our notifications to the supplier, are intended for other countries, the supplier will inform us whether there are any further export restrictions under German, EU and/or US law and/or the foreign trade law of another for the respective country State relevant to the delivery and/or service business exist.In the event that we are not granted a necessary export license, we expressly reserve the right to withdraw from the contract.
Existing substance bans resulting from legal standards must be observed by the supplier. The supplier must ensure that the deliveries and/or services provided by himself or by third parties commissioned by him, including their packaging, do not contain or release any hazardous substances that are harmful to the environment or health, for the intended use intended by us and communicated to the supplier as well as for the foreseeable misuse at the place of manufacture or at the place of use named to the supplier or on the way there are not permitted by law. The applications permitted in the exemptions and all CMR substances (carcinogenic, mutagenic, toxic to reproduction) must be avoided. Deviations from this must be justified to us in a credible manner and are only permitted by us if it is not possible to substitute the substance with a non-hazardous substance.
For each delivery and/or service, the supplier has sent us the proof of legal conformity and the information required by law (e.g. safety data sheets, type examination certificate, test certificates, technical reports, other certificates, proof of qualification) usually with the offer, but no later than with the order confirmation to transmit. The supplier must enclose this evidence and all documents required for placing the goods on the market (e.g. declarations of incorporation/conformity) with each delivery and label the deliveries in accordance with the legal requirements. The same applies to changes to the scope of delivery and/or service that affect the use we intend to use at the named place of use, also taking into account a foreseeable misuse that affects the aspects of delivery and/or service restrictions listed under Section 12 (2). .
The supplier is obliged to declare the substances and/or mixtures contained in his deliveries and/or services in accordance with Regulation (EC) No. 1272/2008, stating the associated CAS registration numbers ("Chemical Abstracts Service"). , the proportions by weight in the homogeneous material and the safety data sheets in accordance with Regulation (EC) No. 1907/2006, insofar as these substances are listed in one of the following standards:

Regulation (EC) No. 1907/2006 (REACH), in particular the list of candidates for substances subject to authorisation; Regulation (EC) No. 1272/2008 (CLP)
Directive 2011/65/EU (ROHS) including extension (EU) 2015/863 and (EU) 2017/2102
ChemVerbotsV (Chemicals Prohibition Ordinance)
ChemG (Chemicals Act)
ChemOzonschichtV (Chemical Ozone Layer Ordinance)
GefStoffV (Hazardous Substances Ordinance);
Battery Law (Battery Law)).

The supplier has to confirm the origin (origin) of the deliveries in compliance with the legal regulations (e.g. by supplier or origin declaration or EUR1). In the supplier's declaration, the supplier must state the originating status of the delivery in accordance with the valid rules of origin of the country of destination that we have communicated to him. A reference to the deliveries is made by stating our article number and/or our order number on the supplier declaration.
Our payment obligation according to § 3 is subject to the receipt of all the information and documents required above.

§ 13 Technical documentation

Unless otherwise agreed, the delivery of technical documentation and all required protocols must be part of the main delivery.
Unless otherwise agreed, the technical documentation must be delivered on commercially available data carriers in machine-readable form and in paper form.
All technical documentation must be created in accordance with the EC Machinery Directive and must comply with the generally recognized rules of technology.
The operating instructions are to be created in accordance with IEC 82079-1.

§ 14 Rights of Use – Intellectual Property Rights

The supplier grants us the non-exclusive, transferrable, spatially and temporally unrestricted right to use the deliveries and/or services (also in parts) of the supplier, to integrate them into other products and to sell them worldwide. The supplier undertakes not to assert any proprietary rights against any use of the deliveries and/or services.
The supplier ensures that we and our customers do not infringe any intellectual property rights of third parties, in particular no trademark, name, patent, infringe utility model, design patent, equipment, design or copyright rights of third parties, including corresponding property right applications (collectively referred to below as "property rights") in the supplier's country of origin, in the Federal Republic of Germany and in the European Union; the same applies to a country to which the delivery is finally to be brought, insofar as this country was communicated to the supplier prior to the conclusion of the contract. If we have not notified a country, the country in which the ordering company has its registered office shall be deemed to be the country to which the delivery is finally to be brought.
If the supplier culpably violates the obligations specified in Section 14 (2), he shall indemnify us at first request from any claims by third parties resulting from such actual infringements of property rights and shall bear all costs and expenses that we inevitably incur in this connection, in particular legal prosecution and defense costs as well as costs resulting from the observance of an obligation to cease and desist. The limitation period relating to our claims in this regard does not end before the expiry of a period of 10 years from the conclusion of the underlying contract
Section 14 (2) does not apply if the deliveries and/or services have been manufactured by the supplier according to our drawings, models or other detailed information provided by us, and if the supplier was neither aware nor should have been aware that property rights third parties are injured.
The supplier and we are obliged to inform each other immediately of any violations of property rights that become known, risks of property right violations and/or alleged cases of violations and, within the scope of what is reasonable, to mutually counteract corresponding claims for violations.

§ 15 Software

Insofar as the contractual delivery is standard software, the supplier grants us non-exclusive, irrevocable, spatially and content-restricted, transferable and sublicensable rights of use (including to affiliated companies within the meaning of Sections 15 et seq. AktG) and including every known type of use including the right to reproduce, distribute, publicly reproduce and make publicly available as well as to integrate and distribute the standard software in or with our products. If no time-limited transfer has been agreed, the rights of use are granted for an unlimited period of time.
The supplier provides us with standard software and the associated documentation. The documentation includes in particular user manuals, installation instructions, data documentation, development documentation and interface descriptions (if available).
Insofar as the contractual delivery is software that has been individually developed for us (individual software), the supplier grants us exclusive, irrevocable, unlimited space, time and content (also to companies affiliated with us within the meaning of Art. 15 ff. AktG) transferable and sublicensable rights of use, including the right to edit, translate, reproduce, distribute, publicly display and make available to the public, as well as the right to integrate and sell the individual software in or with our products, and for every known type of use.
Individual software is to be left to us in object and source code with user and programming documentation.
The supplier will notify us of any property rights that may arise during the creation of individual software and will support us in being able to register appropriate property rights on our behalf.
When creating individual software, the supplier must notify the planned use of free and open source software (FOSS) in text form in advance and obtain our consent.
When providing individual and standard software, the supplier must submit scan results to FOSS in text form in advance and submit lists of contents (“Bill of Materials”). The type and scope of the FOSS used in each case must result from the respective Bill of Materials with a specific designation of the relevant license conditions. The supplier must expressly confirm that no copyleft effect is triggered.
The supplier ensures that the use of FOSS does not limit the contractual or intended use of the standard/custom software and, in particular, that the relevant license conditions and obligations regarding copyright/copyright notices are observed.
The granting of rights of use for software according to this § 15 also applies to updates, upgrades and new versions of the individual or standard software provided by the supplier as well as the respective associated documentation.
The supplier shall ensure that the software, when used as intended, does not violate any relevant statutory or official provisions, including applicable data protection laws (including BDSG and GDPR).
The supplier ensures that the software does not contain any so-called malware (software with malicious functions), computer viruses or worms, Trojan horses or similar. He also uses state-of-the-art security test measures to ensure that the software does not contain any critical weaknesses that could damage the integrity and confidentiality of our or our customers' and business partners' systems and data. Software provided to us must not contain any functions that enable the collection, transmission, storage or other processing of our data, unless this has been expressly agreed.
The supplier has implemented a development process according to which the software has an IT security level that at least corresponds to the state of the art. This includes, among other things, regular security test measures and the documentation of the results. In the case of temporary software transfer, the supplier is responsible for regularly carrying out security test measures and documenting the results.
The supplier will inform us immediately in text form of any security gaps that have become known in the software provided to us and will immediately initiate effective countermeasures. The supplier will coordinate with us before they are publicly announced.
The supplier grants us the transferrable right to test and examine the software, including making the necessary changes, to the extent necessary to carry out security test measures. This includes, in particular, being allowed to remove, revoke or circumvent program protection devices. If this affects the rights of third parties, the supplier will obtain their consent. Apart from that, editing, translations and decompilations may only be carried out insofar as this is for the intended use of the software including error correction and to establish interoperability with other systems and programs used by us.
The information obtained through security test measures is used exclusively for IT, product and data security purposes. We are entitled to commission third parties to carry out security test measures; this includes, in particular, specialized providers and appraisers as well as platforms and initiatives for identifying security gaps (bug bounty programs) and/or participants in bug bounty programs.
Insofar as software is included in the scope of a delivery and/or service, Section 15 applies to this software accordingly.

§ 16 data protection

The supplier adheres to the legal regulations for the protection of personal data. Personal data of the supplier are stored and processed by us in compliance with the legal regulations.

§ 17 Jurisdiction - Place of Performance - Applicable Law

The place of jurisdiction is the registered office of the company using these conditions. We reserve the right to bring an action at the legal place of jurisdiction of the supplier.
Unless otherwise agreed for the respective case, the place of performance is the delivery point described in § 3 paragraph 1 of these purchasing conditions, alternatively the registered office of the company using these conditions.
The law of the Federal Republic of Germany applies, excluding the conflict of laws provisions of private international law and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

§ 18 Code of Conduct

The supplier has taken note of the "Code of Conduct for Suppliers" and recognizes it as binding. The supplier is obliged to comply with this code of conduct,

§ 19 Miscellaneous

Should individual provisions of these purchasing conditions or of the contract concluded between us and the supplier be or become wholly or partially invalid, the remaining provisions shall remain unaffected.
We are only released from the obligation to deduct taxes according to § 48 b paragraph 1 EStG if the supplier presents us with a valid exemption certificate in his name from the tax office responsible for him. Submitting a copy of the exemption certificate is sufficient if the exemption certificate has not been issued in relation to an order.

MAKA Systems GmbH Conditions of Purchase 2023

Status: 01.02.2023