General terms of purchase of Ingenics AG
1. General, scope of application
(1) Parties, areas of application
The present General Terms of Purchase and Deliveries (in German: Allgemeine Einkaufs- und Lieferbedingungen – hereinafter “Terms of Purchase”) shall apply for all purchases of goods or services (hereinafter “Services”) carried out by Ingenics AG, Schillerstrasse 1/15, 89077 Ulm or by any legal successor to that company (hereinafter “Ingenics”) in business transactions with companies in the sense of section 14 BGB (German Civil Code), legal persons under public law and public-law special funds (hereinafter “the Supplier”) in the context of a purchase, work or service contract or other agreements. Ingenics and the Supplier are hereinafter also referred to as the “Parties”.
(2) Area of application, versions, exclusion of other terms and provisions
a. Agreements between the Supplier and Ingenics and individual orders relating to Services shall be regulated exclusively by these Terms of Purchase and any other agreements concluded in writing. The Terms of Purchase shall also apply with regard to ongoing business relations between Ingenics and the Supplier even if they have not been expressly agreed between the Parties.
b. If a framework agreement was concluded by the Parties, this shall have precedence in its area of application above the Terms of Purchase.
c. Any general terms and conditions of the Supplier conflicting with the scope of this applicability or that deviate from the Terms of Purchase are hereby cancelled, unless Ingenics has given its express consent to their applicability in writing. The Terms of Purchase shall also apply if Ingenics has accepted some performance without objection in awareness of any conflicting General Terms and Conditions of the Supplier or that deviate from these Terms of Purchase.
2. Concluding agreements, deviations, documents, call-offs
(1) Offer and Order
a. In a declaration of intent by the Supplier (hereinafter “Offer”) issued in response to an enquiry by Ingenics and aimed at conclusion of a contract, the Supplier is obliged to reflect the Ingenics enquiry exactly in terms of quantity, scope and composition of the offered Service and, in the event of any deviations, to draw attention to such deviations expressly in writing. Offers are to be sent by the Supplier to Ingenics without delay and free of charge.
b. Ingenics is bound by a binding declaration of intent (hereinafter “Order”) aimed at securing a contract for fourteen (14) days.
c. In the event of a declaration of intent by the Supplier following an Order deviating in content from the Order in question, the Supplier shall be obliged to advise Ingenics expressly of this deviation in writing. If the Supplier fails to provide this notification, neither Ingenics’ silence in relation to the Supplier’s declaration of intent nor any due receipt of the performance by Ingenics shall be considered acceptance.
(2) Amendments to the subject of the agreement
a. Ingenics is entitled to demand that the Supplier makes changes and/or supplements to the Services to a reasonable extent. Any consequences of such changes in terms of delivery dates and/or any resulting extra or reduced costs are to be included in a separate regulation agreed between the Parties.
b. The Supplier is not entitled to make any changes to the Services without the prior written consent of Ingenics.
a. Any documents and data regarding the Service to be rendered (e.g. drawings, descriptions, weight information, performance features, function) that the Supplier presents or in some other way reports or makes known to Ingenics represent a contractual agreement regarding the characteristics and composition of the Service in question.
b. The Supplier is obliged to make available to Ingenics all documents and certificates required for the correct use of the Service as assumed in the agreement (e.g. test certificates, instructions) in some suitable form at the latest at the time the Service in question is provided.
If Ingenics calls off the Supplier’s Services in writing (hereinafter “Call-Offs”), such Call-Offs will be binding for the Supplier unless otherwise agreed in writing provided the Supplier does not raise objection within a week of receiving the Call-Off.
3. Requirements regarding the rendering of Services
(1) Compliance with regulations
When rendering services, the Supplier shall comply with all relevant laws and all administrative regulations.
The Supplier undertakes to provide the contractual Services in accordance with the general standards prevailing in the sector and with a level of quality that can be expected in the Supplier’s field of business.
(3) Notification obligation
If circumstances arise or become evident that suggest that it will not be possible to meet the agreed delivery schedule, the Supplier shall notify Ingenics thereof without delay in writing.
4. Delivery of goods
(1) Packing, shipping, transfer of risk
a. The Services are shipped and delivered free of all charges at the Supplier’s cost and risk. The Services shall be shipped at the lowest costs in each case, provided Ingenics does not stipulate a certain mode of transportation expressly in writing or unless in some individual case a different arrangement has been expressly agreed in writing.
b. The Supplier shall bear all additional costs arising from an accelerated transportation that may be necessary in order to meet agreed delivery times, unless the Supplier can prove that Ingenics is responsible for the need for this accelerated delivery.
c. Unless otherwise agreed in writing, the risk is transferred to Ingenics when the Service is delivered to the predetermined destination.
(2) Delivery times, quantities, deviations, amendments, partial performance
a. All delivery deadlines and periods indicated in the Orders or the Call-Offs are binding; compliance therewith is determined by the time the Service in question is delivered to Ingenics.
b. Ingenics is entitled to refuse acceptance of Services provided prior to the agreed time and to return any such early deliveries of Services to the Supplier or to store them with a third party at the Supplier’s cost and risk.
c. Ingenics is entitled to refuse surplus or excess deliveries.
d. No partial deliveries of a Service can be made unless otherwise expressly agreed in writing.
e. Any Services that are found to be faulty or otherwise not conforming to the relevant Order shall be collected from Ingenics by the Supplier at his own cost; Ingenics is also entitled to return such Services to the Supplier at the Supplier’s cost.
f. If and insofar as is necessary to ensure a smooth flow of Ingenics’ operations, Ingenics is entitled to change the agreed delivery time to a reasonable extent.
(3) Inspection of Services, complaints
a. Ingenics shall inspect the received Services within a suitable period for any defects or deviations in quality and quantity on the basis of the Ingenics quality criteria. It shall suffice for this obligation to inspect deliveries if Ingenics carries out inspections in the form of meaningful random tests.
b. Ingenics shall notify the Supplier of any obvious defects in good time such that the complaint is received by the Supplier within a period of five (5) working days. In cases of purchases on samples, no notice of defects is necessary if the delivery differs from the samples. Ingenics must report all other defects to the Supplier as soon as they have been established in the course of normal business operations. Within the scope of number 4 (3) b, sentences 1 to 3 above, the Supplier waives the defence of delays in formal complaint.
(4) Documentation of hazardous materials
Ingenics is obliged to accept deliveries of hazardous materials only if and insofar as the Supplier presents a safety data sheet at the time of delivery at the latest, corresponding to the relevant statutory requirements and ordinances (e.g. Ordinance on the Transport of Dangerous Goods by Road, Rail and Inland Waterways – GGVSEB, Kreislaufwirtschafts- und Abfallgesetz, the Germany Recycling and Waste Management Act).
5. Rendering Services, works and other services
(1) Freedom from instructions, location of activities
a. The Supplier shall generally act free of instructions. The Supplier must, however, comply with the specific requirements drawn up by Ingenics and its customers, in particular the time limits and agreed deadlines.
b. If and insofar as it is necessary for rendering the Services that the Supplier is obliged to work at Ingenics’ or its customers’ premises, Ingenics shall by agreement make sufficient rooms available to the Supplier and, if necessary, designate a contact person working with Ingenics and/or its customers. In the premises of Ingenics and/or its customer, all applicable safety and accident prevention regulations are to be observed.
(2) Vicarious agents
The Supplier is entitled to make use of other persons when rendering the Services, provided these individuals have the qualifications necessary for the task. The Supplier shall notify Ingenics in advance of the names of the persons employed to fulfil its obligations and shall in all cases remain responsible to Ingenics for correct execution of the Services due. In certain specific cases, Ingenics shall be entitled to object to the appointment of certain persons if and insofar as their employment would impair Ingenics’ justified interests.
a. The Supplier shall request Ingenics on completion of the Services and in compliance with the agreed deadlines to accept the Services, unless acceptance is impossible in view of the nature of the Services in question. Acceptance shall be carried out formally.
b. There can be no partial acceptance unless otherwise agreed in writing. Any tests of interim results, and/or if partial payments are made in the context of milestone planning, shall not be considered acts of acceptance. A decision by Ingenics or a customer of Ingenics to use Services or parts thereof due to certain operational necessities, or the rendering of payment, shall not be considered acts of acceptance.
c. The Supplier can demand that the completed Services be accepted only when he has furnished proof that Services have been completed and are free of fault. Ingenics is not obliged to accept the Services if a fault is present.
d. The Supplier shall bear risk for the Services until they have been formally accepted by Ingenics. If the Services are damaged or destroyed before acceptance due to force majeure, war, civil unrest or other unavoidable circumstances for which the Supplier is not responsible, the Supplier’s claim to remuneration shall elapse.
6. Prices, taxes and charges, terms of payment
a. The prices indicated in the Order in question are agreed as fixed prices and are legally binding. The prices apply to the entire processing of an Order and may not be changed by the Supplier or subject to surcharges or mark-ups without the express written consent of Ingenics.
b. If and insofar as not otherwise agreed in writing or nor impossible due to the nature of the Service, the agreed prices relate to deliveries of Services “free house” including packaging.
(2) Taxes and charges
The prices indicated in the different Orders are quoted net and accordingly do not include the statutory rate of value added tax. The Supplier shall indicate separately any taxes and charges due.
(3) Terms of payment
Unless otherwise agreed in writing, Ingenics shall remit the agreed price
a. with a 3% discount when paid within 14 days of delivery and receipt of a correct invoice or
b. without discount when paid within 30 days of delivery and receipt of invoice.
7. Defect-related rights, right to substitute delivery, statute of limitations, insurance, indemnification (MiLoG/AEntG), liability
(1) Defect-related rights
a. Ingenics can exercise its statutory defect-related rights without any restriction, including the right to withdraw from a contract and claim damage compensation.
b. In the event of a defect, Ingenics is in particular entitled, at its own discretion, to demand that the Supplier removes the defect or provides substitute delivery, irrespective of whether a purchase contract or contract for work was concluded, unless the Supplier can prove that the chosen type of rectification or retrospective performance would lead to unacceptable costs for the Supplier. Ingenics expressly reserves the right in such situations to demand damage compensation, especially compensation instead of the ordered performance.
(2) Right to substitute delivery
By agreement with the Supplier, Ingenics may undertake removal of the defect itself at the Supplier’s cost or have it removed by a third party. The same applies in the case of faulty work services when the Supplier fails to fulfil its obligation to remove the defect within a suitable period set by Ingenics. In the case of imminent danger, Ingenics is entitled to remedy the defect itself at the Supplier’s cost or have it rectified by a third party including without prior agreement.
(3) Statute of limitations
The statute of limitations for defect-related claims is 36 months, starting at the time risk is transferred, unless some longer statute of limitations is provided by law and when the mandatory provisions of sections 478, 479 BGB do not apply.
The Supplier provides for the duration of the agreement a suitable public accident and liability insurance, and shall furnish evidence thereof each year when requested by Ingenics.
(5) Indemnification (MiLoG/AEntG)
If the Supplier employs personnel, it hereby states that it complies with the regulations of Mindestlohngesetz (MiLoG – German Minimum Wage Act) and Arbeitnehmerentsendegesetz (AEntG – German law on the posting of employees) and indemnifies Ingenics from all related claims, in particular claims based on section 13 MiLoG and section 14 AEntG.
Ingenics is liable for property damage in relation to the Supplier only in the case of malice aforethought and gross negligence and in the case of breach of essential contractual obligations (i.e. obligations which must be met if the agreement is to be executed and in compliance of which the contractor normally trusts and can trust). The above shall not prejudice liability for damages from injury to life, limb or health.
8. Rights to Services, inventions, documents, compensation, warranty against infringement
(1) Grant of rights
a. The Supplier transfers exclusively to Ingenics all rights to the results of its work in the context of its activities for Ingenics, in particular all transferrable rights of use in connection with the Services, including trademark and labelling rights and transferrable copyrights and other intellectual property rights that it acquires during the term of the contractual relationship and/or that are due to it, without restriction in terms of time, territory or content, and Ingenics accepts this transfer, if and insofar as these rights were acquired and/or arise directly or indirectly in connection with this contractual relationship. If assignment of such a right is not possible due to the nature of the right, the Supplier hereby grants to Ingenics an exclusive license to the right in question without any restrictions in terms of time, territory or content, and Ingenics accepts this grant of license.
b. The transfer of rights and grant of license according to the above number 8 (1) (hereinafter together “Grant of Rights”) covers all forms of use and thus also the right of Ingenics to use the Services and their results in Germany and abroad in both tangible and intangible form – against payment or without payment – as well as to disclose publically (including a right of exhibition, recital and presentation), to duplicate, distribute, to record in digital or analogue form on image, data and audio media of all kinds and to reproduce, duplicate and distribute these in turn.
c. All aforementioned rights shall be assigned to Ingenics as exclusive rights at the latest at the time they arise and can be further assigned by Ingenics according to its own wishes and discretion in part or in full, including in the form of exclusive or non-exclusive rights to a third party.
d. If the Supplier uses when rendering the Services pre-existing industrial property rights, copyrights or know-how of the Supplier (hereinafter jointly “Supplier IP”), the Supplier shall grant to Ingenics a non-exclusive right to use this Supplier IP without restriction in terms of time or territory and that can be sub-licensed, if and insofar as the Supplier IP is required by Ingenics for utilising the work results. The aforesaid right of use includes all types of use, in particular those indicated under this number 8.
e. The Supplier grants to Ingenics the right to process and modify the works and other Services the Supplier provides and to duplicate, publish and distribute the works thus processed or modified.
f. Ingenics is not obliged to register or utilise the rights of use. The right of rescission that may be due to the Supplier pursuant to section 41 Urheberrechtsgesetz (German Copyright Act) due to failure to utilise the different rights of use transferred here shall not apply for a period of five years from the time the rights are transferred.
g. Ingenics is not obliged to name or indicate the Supplier as being the author.
The Supplier shall report to Ingenics without delay all inventions or other patentable results arising in connection with the contractual services and that relate to them, and to provide Ingenics with all necessary information in this regard. All inventions are to be transferred to Ingenics. If Ingenics is not interested in registering an industrial property right for an invention, Ingenics shall reassign such inventions to the Supplier, with Ingenics retaining a simple, unremunerated and otherwise unrestricted right of use.
a. The documents created by the Supplier in connection with the rendering of the contractual Services shall become the property of Ingenics and shall be surrendered on request, but at the latest when the contractual relationship comes to an end. The Supplier is entitled to retain copies as evidence of his delivery of the Services.
b. Documents, data, information and other objects that Ingenics provides to the Supplier in the course of the agreement being executed shall remain the property of Ingenics or – if they belong to a customer of Ingenics – the property of the Ingenics customer.
All works, inventions and other Services created by the Supplier in connection with this contractual relationship shall be considered duly compensated in full with payment of the remuneration pursuant to number 6.
(5) Guarantee of freedom from encumbrances
a. The Supplier guarantees the legal validity of the rights transferred to or licensed to Ingenics under this number 8 and ensures that these rights have not been assigned to any third party in part or in full, or encumbered with any copyrights or neighbouring rights, personal or other rights of a third party and/or that no third party has been authorised to utilise these rights.
b. In the context of the above warranty, the Supplier indemnifies Ingenics and all sub-licensees from all third-party claims and is also liable even without own fault for all damage arising in this regard, in particular for all necessary and appropriate costs of legal action.
9. Term, cancellation
a. The contractual relationship shall continue for the term agreed in the Order.
b. The right to extraordinary cancellation applies. An important reason justifying extraordinary cancellation by Ingenics shall in particular obtain when
i. normal execution of the agreement is evidently jeopardised by a lack of capacity on the part of the Supplier to provide the due performance,
ii. the Supplier or its legal successors fails to provide the contractual services correctly despite receiving a warning with a suitable period of grace,
iii. certain facts become known that give reason to suspect the Supplier is engaged in bogus self-employment, or
iv. the Supplier, through his behaviour or conduct in relation to one of Ingenics’ customers, threatens to damage Ingenics’ or the customer’s image. There is no need for a warning in the case of a significant risk of loss of image.
c. Expiry of the contractual relationship, irrespective of the legal reason, shall not affect the Grant of Rights pursuant to number 8.
10. Property, retention of title
(1) Property of Ingenics, supply, processing, restructuring, mixing of items provided.
a. Ingenics reserves all rights to all illustrations, drawings, models, templates, calculations and other documents and information that Ingenics provides to the Supplier. The documents and information mentioned here may be used by the Supplier exclusively for rendering the Services. At the request of Ingenics, but at the latest after the contractual relationship has expired, all of these materials are to be returned to Ingenics voluntarily.
b. Ingenics reserves title to all and any materials provided to the Supplier. Any processing or restructuring of such items by the Supplier shall be carried out exclusively for Ingenics. If an object belonging to Ingenics is processed together with third-party objects, Ingenics shall obtain joint ownership of the new object thereby created in proportion to the value the object belonging to Ingenics (purchase price plus value added tax) has in relation to the other processed objects at the time processing takes place.
c. If an object belonging to Ingenics is mixed with third-party objects, Ingenics shall obtain joint ownership of the new object thereby created in proportion to the value the object belonging to Ingenics (purchase price plus value added tax) has in relation to the other combined objects at the time the mixing takes place. If the mixing takes place such that one object of the Supplier can be considered the principle item, it is hereby agreed that the Supplier transfers to Ingenics its share in the joint ownership. The Supplier shall maintain and protect Ingenics’ sole ownership or joint ownership on behalf of Ingenics.
(2) Retention of Supplier’s title
a. The Supplier reserves ownership of the goods delivered until such time as the Supplier is paid by Ingenics, provided the Supplier reserved title to the items prior to or on delivery.
b. No additional or extended retention of title is agreed.
11. Confidentiality/public disclosure/treatment of data media/return of materials
a. The Supplier is obliged to maintain strict confidentiality regarding the details of his activities, the amount of his remuneration and regarding all confidential matters and operations that come to his attention in the course of his work for Ingenics.
b. The Supplier shall in particular not make any statement regarding the content of the contractual services or regarding facts or circumstances that come to his attention in connection with or on the occasion of his rendering Services, unless such disclosure has been approved by Ingenics in advance.
c. The confidentiality obligation must not be considered to apply only to information or circumstances relating to Ingenics, but also to information and circumstances that are of significance for the Ingenics customer in question. When requested by Ingenics, the Supplier shall also sign any confidentiality undertakings required by the Ingenics customer, unless the Supplier cannot reasonably be expected to sign in some individual case.
d. The confidentiality obligation shall continue also after the contractual relationship has come to an end. The Supplier can, however, demand release from the confidentiality obligation after the contractual relationship has expired if and insofar as he has a justified interest in such release and Ingenics can be reasonably expect to grant the request.
e. When data media of any form are being used, the Supplier is obliged to examine these for viruses and other malware in accordance with the latest state of the art and to protect the data media and data suitably from unauthorised access by any third party. The Supplier shall furthermore comply with any IT guidelines of Ingenics or – when forwarded by Ingenics – its customers.
12. Data protection
The Supplier undertakes to comply with statutory regulations regarding data protection.
13. Applicable law
The agreement and all associated non-contractual claims are subject to the law of the Federal Republic of Germany; the terms of UN sales law (UN Convention on Contract for the International Sale of Goods – CISG) and conflict of laws shall not apply.