General Purchasing Terms and Conditions of feno GmbH (GPC)
- These General Purchasing Terms and Conditions (hereinafter referred to as “GPT&Cs”) apply to all business relationships with the supplier (hereinafter referred to as the “seller” or “supplier”) regarding the delivery of goods and/or the provision of services to feno GmbH (“feno”). The GPT&Cs only apply if the seller is an entrepreneur (as defined in § 14 of the German Civil Code (GCC)), a legal person under public law or a special fund under public law.
- Unless otherwise agreed, the GPT&Cs shall also apply as a framework agreement for similar future contracts in the version valid at the time of the order or in any case in the version last notified to the supplier in text form, without our having to refer to them again in each individual case. These GPT&Cs shall apply exclusively. Any other general terms and conditions of the supplier that differ from them, contradict them or supplement them shall only become an integral part of the contract if feno has expressly consented to their validity in writing. This requirement for consent shall apply in every case, for example even if the seller refers to its general terms and conditions in its confirmation of the order and feno does not expressly raise an objection.
- Individual agreements (such as framework delivery contracts and quality assurance agreements) and information contained in the order from feno take precedence over the GPT&Cs. In cases of doubt, commercial clauses shall be interpreted in accordance with the Incoterms issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time the contract is concluded.
- Any legally relevant declarations and notifications by the supplier in relation to the contract (such as deadlines, reminders and withdrawals) must be submitted in writing. “In writing” in connection with these GPT&Cs includes all written forms (letters, emails, etc.). Statutory procedural requirements and the need for further evidence, especially in cases of doubt regarding the legitimacy of the declarant, remain unaffected.
Offers from the supplier must correspond to the quantity, delivery date, quality and performance specified in the request. Any deviations must be notified in writing by the supplier. The production of samples and the preparation of offers by the supplier shall be free of charge to feno even if they have been submitted on feno’s request.
The agreed prices are maximum prices and are understood to be delivered duty paid (DDP, Incoterms 2010) and are therefore inclusive of all packaging, shipping and ancillary costs including customs duties.
§4 Orders / order confirmation
- Orders are only valid if they are made in writing or confirmed in writing by feno. Verbal agreements either face to face or by phone require written confirmation.
- Orders from feno are deemed accepted if the supplier does not object within 5 working days of receipt of the order. Objections can take the form of either a complete rejection of the order or confirmation of the order with changes. Confirmation that conflicts with the content of the order or delayed acceptance of the order constitutes a new offer and must be accepted in writing. Under no circumstances shall feno’s silence be interpreted as consenting to a conflicting order confirmation.
§5 Delivery / delay / withdrawal
- Delivery must be completed by the agreed date. Delivery dates given in calendar weeks, months or quarters shall be taken to mean the end of the week, month or quarter. From that point in time the supplier is in default without having to be sent a reminder. If timely delivery is not possible in whole or in part the supplier must notify feno as soon as it becomes aware of the delay, stating the reasons, and request that a new delivery date be set.
- The supplier shall be fully liable for all costs caused by the delay. feno is entitled to withdraw from the contract and to claim damages following fruitless expiry of a reasonable period of grace. Notwithstanding statutory claims, feno is entitled to claim compensation of 0.1% of the net order value of the supplies and services for which the supplier is in default for each calendar day after the onset of the delay, but no more than 5% of the total order value of the supplies or services. The supplier has the right to provide evidence to feno that no or significantly less damage has arisen as a result of the delay.
- The supplier must voluntarily provide feno with a long-term supplier declaration for the supplied products at least once a year.
- The supplies to feno and the contractual products contained in them must be marked in such a way to be clearly identifiable.
- Overdeliveries or underdeliveries are not permitted without the written consent of feno.
§6 Shipping / transfer of risk
- Shipments within Germany are free to the location specified in the order. If the destination is not specified and unless otherwise agreed, shipment shall be made to feno’s registered office. The destination is also the place of performance for the shipment and any subsequent performance (obligation to deliver). The supplier bears the risk of accidental alteration or deterioration of the goods up to the time of their handover to feno. Risk is transferred to feno when a person authorized by feno has acknowledged receipt. If acceptance testing has been agreed, this is crucial for the transfer of risk. In the case of acceptance testing, the statutory provisions of the law on contracts for work and services shall apply accordingly. Handover or acceptance testing is deemed to have taken place if feno is in default of acceptance. Statutory provisions shall apply in the event of a delay in acceptance. The seller must expressly offer his services if a specific or determinable calendar time has been agreed for action or cooperation by feno (e.g. provision of material). If feno is in default of acceptance, the seller may demand compensation for its additional expenses in accordance with statutory provisions (§ 304 GCC). If the contract relates to an unjustifiable item to be manufactured by the seller (one-off production), the seller shall only be entitled to further rights if feno obligated to collaborate and is responsible for failure to collaborate.
- Shipments for which it is expressly agreed that delivery is not FOB shall be shipped with the forwarding agent specified by feno. In this case, notification of readiness for dispatch must also be sent to feno. All additional costs incurred as a result of non-compliance with these freight forwarding regulations, as well as transport charges and the like at the place of dispatch, shall be borne by the supplier.
- Unless otherwise agreed, goods must be shipped in appropriate and commercially acceptable packaging. Packaging for electronic components or assemblies must be ESD protected. The supplier shall be liable for damage due to inadequate packaging.
- Each shipment must be accompanied by a delivery note showing the order number, order data and feno article numbers. Waybills, parcels, etc. must have the same information and match the delivery note. The supplier shall be liable for any damage incurred by feno as a result of non-compliance with these requirements.
§7 Warranty / liability / supplier recourse/producer liability
- Statutory provisions and, exclusively for feno’s benefit, the following amendments and clarifications shall apply to rights in the event of material and legal defects of the goods (including incorrect shipments, short shipments, improper assembly/installation and inadequate instructions) and in the event of any other breaches of duty by the supplier. In accordance with statutory regulations, the supplier shall be liable in particular for the goods having the agreed quality at the time of the transfer of risk. The product descriptions which are the subject of the relevant contract – in particular by designation or reference in the order – or which have been incorporated into the contract in the same way as these GPT&Cs are deemed to be an agreement on the quality. It makes no difference whether the product description comes from feno, from the supplier or from the manufacturer.
- In the case of goods with digital elements or other digital content, the supplier shall be liable for providing and updating the digital content to the extent that this requirement arises from a quality agreement or other product description issued by the supplier or by the manufacturer, or appearing in the order, on the internet, in advertising or on the label.
- If the supplier fails to meet its obligation with regard to subsequent fulfillment within a reasonable period of time set by feno, or if subsequent fulfillment has been wrongly refused by the supplier or has failed or is unreasonable for feno, particularly given a risk of default, feno may, in addition to exercising its statutory rights, take the necessary measures itself or have them carried out by third parties at the expense and risk of the supplier and without prejudice to the supplier’s warranty obligations.
- If, as a result of an inadequate shipment, an incoming inspection beyond the agreed scope needs to be carried out the supplier shall bear the relevant costs.
- In any case, feno is entitled, at its discretion, to demand either that the supplier remedies the deficiency or delivers a new item. feno expressly reserves the right to compensation for damages, in particular compensation for damages instead of fulfillment.
- The supplier is obliged to indemnify feno against third-party claims based on defects in the goods delivered by the supplier. The supplier is also obliged to bear all relevant costs and expenses in this connection, including the costs of any legal proceedings or recall/exchange action.
- Statutory provisions (§§ 377, 381 GCC) shall apply to the obligation to inspect and give notice of defects, with the following conditions: feno’s obligation to inspect is limited to defects which are revealed in an external assessment as part of the incoming goods inspection, including inspection of the delivery documents (e.g. transport damage, incorrect shipment, short shipment) or which can be detected during random quality controls. If acceptance testing has been agreed, there is no obligation to inspect. An additional consideration is the extent to which inspection is feasible in accordance with normal business practice, taking into account the circumstances of the individual case. The obligation to notify defects discovered at a later date remains unaffected.
- Statutory expenditure and recourse claims within a supply chain (supplier recourse according to §§ 478, 445a, 445b50 or §§ 445c, 327 Para. 5, 327u GCC) are available to feno without restriction in addition to claims for defects. In particular, feno is entitled to demand from the supplier precisely the kind of subsequent fulfillment (remedy or substitute shipment) that feno owes to its customer in each individual case; this also applies to the provision of necessary updates for goods with digital elements or other digital content. This does not restrict the statutory right to choose (§ 439 Para. 1 GCC).
- Claims arising from supplier recourse shall also apply if the defective goods have been combined with another product by feno, its customer or a third party, for example by incorporation, attachment or installation, or have been further processed in any other way.
- If the supplier is responsible for product damage, it shall indemnify feno from third-party claims insofar as the cause is within its sphere of control and organization and it is itself liable in relation to third parties.
- As part of its indemnification obligation, the supplier shall, in accordance with §§ 683, 670 GCC, pay expenses arising from or in connection with a third-party claim, including recall actions. The seller shall inform feno of the content and scope of recall actions – as far as possible and reasonable – and give feno the opportunity to comment. Additional statutory claims are unaffected.
§8 Production of goods / quality / regulations/audit
- The supplier must manufacture and carry out checks on the contract products in accordance with the environmental, safety and legal regulations applicable to the goods, taking into account standard quality requirements. The supplier must maintain a quality management system (QMS) that meets at least the requirements of DIN ISO 9001:2015 and must retain and develop it in accordance with the relevant standards for the period of cooperation.
- The supplier is responsible for ensuring that the products supplied by it comply with the provisions of EU Directive 2011/65/EU on the use of certain hazardous substances in electrical and electronic equipment and electronic components (RoHS) and that the products supplied by it comply with the provisions of Regulation (EC) No. 1907/2006 on registration, evaluation, authorization and restriction of chemicals (REACH regulation).
- feno does not allow products that violate the Conflict Minerals Reporting Template (CMRT). Compliance with the Code of Conduct for Suppliers is mandatory.
- feno is entitled to have inspections carried out by agents during normal operating hours at the supplier’s production sites to ensure compliance with contractual obligations for the manufacture of the goods. Excluded from this are such production areas in which the work being carried out or the production processes being used are subject to confidentiality. The supplier also agrees to the regular performance of supplier audits by experts commissioned by feno. The supplier audits shall cover all circumstances relevant to the supply relationship. The costs incurred by each party shall be borne by the respective party itself.
- If the supplier receives information in connection with the goods – regardless of how or why – that raises doubts about their marketability, it is obliged to inform feno immediately and without reservation. If the supplier is not also the manufacturer, the supplier guarantees that this obligation and compliance with this obligation are passed to its presellers and to the manufacturer.
§9 Transfer of ownership
It is agreed with the supplier that ownership of the ordered goods shall pass to feno upon payment. The supplier gives the assurance that no third party has any rights to the delivered goods. feno does not recognize any extended or expanded retention of title by the supplier.
The invoice must show the order reference (order number and date), order data and feno article number and must be emailed to email@example.com no earlier than the date of dispatch. If this information is not fully shown in the invoice, the invoice will be returned to the supplier and deemed as not submitted. Invoices for partial deliveries not agreed with feno will only be accepted from the date on which the entire delivery is completed.
§11 Payment conditions
Unless otherwise agreed, payments shall be made within 14 days with a 3% discount, otherwise 30 days net after proper invoicing. The period begins on receipt of the invoice and goods, unless feno has a valid reason for objecting to the invoice or receipt of the goods.
§12 Offsetting/assignment of claims
- In view of all due claims by feno against the supplier, feno is entitled to offset or assert rights of retention.
- The supplier may not transfer its contractual rights to any third party without the express written consent of feno. Payment claims by the supplier against feno are excluded from this prohibition of assignment.
§13 Property rights
- The supplier guarantees that the supply and use of the purchased goods do not infringe the property rights of third parties. The supplier shall indemnify feno from all third-party claims asserted against feno as a result of a breach of the above guarantee.
- feno reserves its property rights and copyrights on illustrations, plans, drawings, calculations, instructions, product descriptions and other documents. Such documents shall be used exclusively for performing the contract and must be returned to feno on completion of the contract.
- Substances and materials (e. g. software, finished and semi-finished products) as well as tools, templates, samples and other objects that feno provides to the supplier for production: provided they are not being processed, such items must be stored separately at the supplier’s expense and adequately insured against destruction and loss.
The supplier is obliged to treat all images, drawings, calculations and other non-public documents and information in strict confidence and not use them for its own purposes or for the purposes of third parties. feno and the supplier shall enter into a separate non-disclosure agreement to regulate the above obligation.
§15 Place of performance
The place of performance is the headquarters of feno.
§16 Court of jurisdiction
The place of jurisdiction is Munich District Court II, regardless of the amount in dispute, but feno is also entitled to sue the supplier at the supplier’s registered office.
§17 Applicable law
The law of the Federal Republic of Germany shall apply exclusively. Application of the United Nations Convention on the International Sale of Goods or any other conventions relating to the purchase of goods is excluded.
§18 Severability / final provisions
In the event that any provision of this agreement is legally invalid, the remainder of this agreement shall remain in full force and effect.