I. Concluding Contracts
- Only contracts concluded and orders awarded in text form shall be binding for the Parties. Oral arrangements and collateral agreements shall become binding only after confirmation by N&M. The same shall apply to subsequent amendments and supplements to contracts and orders.
- If a Contracting Partner does not accept an offer to conclude a contract or an order from N&M within 2 weeks of receipt, N&M shall be entitled to cancel.
- Cost estimates are binding and shall not be remunerated unless something different was explicitly agreed by the Parties.
II. Delivery Deadlines, Contract Deadlines and Delay Penalties
- The deadlines and schedules cited in the contracts and orders are binding. This applies in particular to contractual delivery deadlines and contractual completion schedules. The performance of the agreed services at the agreed place of performance (e.g. by handing over the goods to be provided at the place of delivery is the case of purchase or rental contracts) shall be decisive for compliance with the delivery deadline or schedule. If works contract law applies, acceptance of the delivery or performance shall be decisive for compliance with the delivery deadline or schedule.
- Unless otherwise agreed, if the Contracting Partner is delayed in providing his performance or delivery, N&M may - in addition to further-reaching statutory or contractual claims - demand flat-rate reimbursement for the damage caused by the delay in the amount of 0.15% of the net price per completed calendar day, however, in total no more than 5% of the net price of the goods delivered late or the service provided late. N&M reserves the right to prove that higher damages have been incurred. The Contracting Partner reserves the right to prove that no damage whatsoever or only much less severe damages have been incurred.
- The Contracting Partner shall undertake to inform N&M in text form without undue delay if an agreed deadline or an agreed schedule - for any reason whatsoever - probably cannot be complied with.
- Partial deliveries and partial services by the Contracting Partner shall be permitted only after the explicit consent of N&M in text form (email). Additional costs caused by partial deliveries or partial services shall be borne by the Contracting Partner, unless the Parties have explicitly agreed otherwise.
- A delivery and/or transfer of the goods by the Contracting Partner before the delivery deadline agreed for it shall be permitted only with the prior consent of N&M in text form (email shall suffice) and shall otherwise be excluded. If N&M accepts a delivery before an agreed delivery deadline, N&M shall not be required hereby to pay the agreed remuneration before the due date originally agreed for payment of the remuneration.
III. Prices and Renumeration
- Unless explicitly otherwise agreed between the Parties, the agreed prices are fixed prices with which all performances, costs and expenses of the Contracting Partner, including freight costs, duties, transportation costs, travel expenses and costs for packaging, are covered.
- If remuneration for services rendered or invoicing according to unit prices is agreed, the following regulations shall apply:
- Remuneration shall be in return for services rendered on the basis of the remuneration rates or unit prices arising from the contract or the order. Travel times and waiting times shall not count as times of service provision.
- The invoice shall be drawn up on the basis of a payment plan agreed between the Parties with submission of corresponding proof on the content and extent of the services rendered in the case concerned.
- Unless explicitly agreed otherwise, the order total included in the contract or order is the maximum amount of the remuneration to be paid by N&M. The Contracting Partners shall undertake to inform N&M in time if the expenditure-related invoicing is likely to exceed the order total or maximum amount named in the contract or order.
- Costs (travel expenses, etc.) shall be reimbursed only if this has been explicitly agreed. Proper supporting documents shall be submitted to N&M as proof of costs incurred. The costs of third parties shall be proved by corresponding invoices from the third party concerned.
IV. Guarantee Rights
- N&M’s legal warranty rights are based on the statutory provisions unless explicitly otherwise agreed in these General Purchasing Conditions.
- The Contracting Partner shall provide his performances free of material defects and legal defects. He shall work to ensure that the performances have the agreed properties and are free of material, construction or manufacturing defects at the time of the transfer of risk to N&M. In any event, those service and product descriptions that are transferred from the Contracting Partner to N&M before conclusion of the contract or that he publishes on his website or a comparable medium shall be deemed to be an agreement on the properties. In this connection, it makes no difference whether the service and product description concerned originates from the Contracting Partner or from a third manufacturer. Moreover, the agreed properties of the performances also include that the performances have been professionally manufactured, using suitable materials and comply with the state of the art, the relevant statutory provisions and the applicable regulations and guidelines from authorities, employers’ liability insurance companies and specialist associations.
- The Contracting Partner is required, at his own expense, to remove any defects to the performances without undue delay after reporting of the defect by N&M (hereinafter referred to as “supplementary performance”). At the discretion of N&M, this subsequent performance shall be either by rectification of defects or by new delivery.
- In response to a defect report from N&M, the Contracting Partner shall contact N&M within two working days at the latest and introduce suitable fact-finding measures and action to rectify the fault (“first measures”).
- The Contracting Partner shall be responsible for all of the expenditure required for subsequent performance, in particular transport, road, installation and expansion costs as well as labour and material costs.
- If the Contracting Partner does not meet his obligation for subsequent performance within 21 calendar days, N&M may remedy the fault itself and demand compensation for the necessary expenses for this or a corresponding advance payment from the Contracting Partner (“right of self-remedy”). If subsequent performance by the Contracting Partner has failed or is unacceptable to N&M (e.g. due to particular urgency, risk to operational safety or imminent occurrence of disproportionate damage), there is no need for N&M to set a deadline.
- If subsequent performance by the Contracting Partner has failed, the Contracting Partner refuses to carry out subsequent performance or if the Contracting Partner makes no attempt at subsequent performance, in spite of requests and a deadline being set, within the subsequent performance deadline set for him, N&M shall also be entitled to reduce the remuneration by a commensurate amount and/or withdraw from this contract by means of a unilateral declaration and thus fully or partially terminate the contractual relationship. Other rights and claims shall remain unaffected by this and reserved to N&M.
- Rectification shall be deemed as failed after the unsuccessful first attempt at subsequent performance by the Contracting Partner unless something else arises from the nature of the goods or the defect or the other circumstances.
- The Contracting Partner shall exempt N&M from all claims that third parties - for whatever legal reason - lodge against N&M due to a material or legal defect or another fault that is the responsibility of the Contracting Partner and shall reimburse N&M the necessary costs of litigation in this respect.
- The warranty period is 24 months from the transfer of risk to N&M, unless there is a longer warranty period on the basis of a statutory or special contractual regulation. The course of the warranty period shall be stopped for the period starting with the sending of the defects report by N&M and ending with receipt of the fault-free delivery or service by the Contracting Partner. In the case of rectifications, new production and replacement deliveries, the warranty period for N&M shall recommence with fulfilment of the relevant defect warranty obligation by the Contracting Partner.
- The Contracting Partner shall be responsible for the culpability of his subcontractors, vicarious agents and contracting partners in the same way as his own culpability.
V. Operating Manuals, Service Manuals, etc.
- If operating manuals, work drawings, operating regulations, service manuals, spare parts lists or comparable documents (“product documents”) are necessary or standard for the operation, maintenance and/or service of the products and/or goods to be supplied by the Contracting Partner, the supply of these product documents shall be considered a key element of the service to be provided by the Contracting Partner. The product documents shall be transferred to N&M in a suitable digital version upon delivery at the latest. Unless explicitly agreed otherwise, the costs of this shall be deemed to have been priced into the remuneration for the agreed service and as covered by payment of the agreed remuneration.
VI. Product Liability
- If a liability claim is asserted against N&M, the Contracting Partner shall be required to exempt N&M from such claims provided and to the extent that the damage has been caused by a fault in the products supplied by the Contracting Partner within the scope of his performance. In cases of fault-based liability, however, this shall apply only if the Contracting Partner is to blame. If the cause of the claim is within the responsibility of the Contracting Partner, he must prove that he is not to blame.
- In this case, the Contracting Partner shall pay all of the costs incurred by N&M from this, including the costs of necessary litigation or legal defence.
VII. Payment Terms and Withheld Payments
- Invoices may be submitted only after complete delivery or performance. The contract or order number and, if known, the project name must be stated in the invoice.
- Payments shall be made by N&M subject to the proper performance or delivery as well as correct prices and calculations.
- In the event of a defect of the goods or services supplied under warranty law, N&M shall be entitled to retain payment of the remuneration in the amount of three time the costs necessary for remedying the defect until the defect has been finally remedied by the Contracting Partner.
VIII. Offsetting and Rights of Retention
- The Contracting Partner may offset demands only that result from the same contractual relationship and that are undisputed or have been established as final and absolute. Otherwise, offsetting is excluded.
- Assigning claims against N&M and transferring rights and obligations of the Contracting Partner outside the area of application of Article 354a N&M shall require the prior consent of N&M in text form and are excluded without such consent.
IX. Usage Rights
- If the use of commercial protected rights, copyrights or unprotected knowledge (know-how) of the Contracting Partner is necessary for the use or utilisation of the Contracting Partner’s services by N&M, N&M shall receive a non-exclusive, irrevocable, time-, geographic- and content-unlimited, transferable usage right to all types of use of these commercial protected rights, copyrights and the unprotected knowledge (know-how).
- The Contracting Partner shall undertake to maintain secrecy without any time limits about all business secrets (cf. Article 2 No. 1 of the German Business Secrets Act) of N&M and N&M clients made and to be made available to him and his employees in association with the cooperation between the Contracting Partner and - unless necessary to achieve the purposes of the cooperation - not to record them or pass them on or use them in any other way.
- If the Contracting Partner avails himself of assistance from third parties, the Contracting Partner shall ensure by means of suitable contractual arrangements with the third party working for the Contracting Partner that this party too shall explicitly refrain from all use, passing on or unauthorised recording of business secrets without time limit, in particular the business secrets explicitly named in para.1. The Contracting Partner shall undertake to require his own employees in particular to maintain the relevant secrecy. In any event, the passing on of business secrets shall be limited to such information that the third party concerned needs to perform his tasks. The Contracting Partner shall be liable for all damage incurred by N&M from violation of the secrecy requirement by his employees or by third parties commissioned by the Contracting Partner.
- At the request of N&M, the Contracting Partner is required to prove without undue delay the written conclusion of the confidentiality agreements with third parties corresponding to paras 1 and 2 above.
- The Contracting Partner is required to secure business secrets made and to be made accessible to the Contracting Partner against access and/or inspection by unauthorised parties in accordance with the state of the art.
- All documents, data carriers, samples, drawings and other materials containing or embodying trade and business secrets of N&M (hereinafter referred to as “confidential documents”) are and shall remain the property of N&M. The Contracting Partner is required to release all confidential documents - including all copies made of them - to N&M without undue delay or to destroy them at the request of N&M. In the case of destruction, this shall be confirmed in writing without undue delay by the Contracting Partner.
- The confidentiality requirements shall not apply to such business secrets that were already generally known, i.e. published or generally accessible, at the time of receipt without the Contracting Partner violating these confidentiality requirements or that subsequently become generally known without the Contracting Partner violating these confidentiality requirements.
- If the disclosure of business secrets is legally mandated by an authority or court, the Contracting Partner shall be entitled to disclose to the extent that the order concerned requires. In this case, the Contracting Partner is required to inform N&M without undue delay of the order requiring the Contracting Partner to disclose so that N&M is in a position to take judicial remedies or legal action against such an official or court order in time in order to prevent disclosure.
- N&M is not required to impart, announce or disclose business secrets or to conclude further reaching agreements.
- Conclusion of the contract shall be treated in confidence. In advertising materials, on the Contracting Partner’s website and in comparable media as well as in declarations to third parties, reference may be made to the conclusion of the contract with N&M only after approval by N&M in text form.
- Otherwise, the regulations of the German Business Secrets Act apply.
XI. Data Protection
- The Contracting Partner shall undertake to process personal data transmitted to him by N&M only for the purposes for which it was transmitted to him and, when processing, to respect all statutory and contractual data protection obligations. Prior to processing, he shall require, in text form, employees and vicarious agents entrusted with processing data to comply with data secrecy.
XII. Information Security
- The Contracting Partner shall undertake to take appropriate organisational and technical measures to ensure the confidentiality, authenticity, integrity and availability of the Contracting Partner’s operations and his deliveries and services. These measures shall be standard for the sector and contain an appropriate management system for information security in agreement with standards, such as ISO/IEC 27001 or IEC 62443 (where applicable).
XIII. Code of Conduct
- When providing his services, the Contracting Partner shall undertake to respect the Code of Conduct of Neumann&Müller GmbH & Co KG (hereinafter referred to as “Code of Conduct”). In particular, the Contracting Partner shall explicitly undertake to respect the anti-corruption, cartel and competition provisions, the sanction provisions (e.g. anti-terror provisions, embargo provisions, etc.), as well as human rights and environmental law duties of care (in particular in accordance with the German Supply Chain Duty of Care Act) named in the Code of Conduct. He shall obligate his employees and subcontractors (where subcontracting has been provided for or agreed by the contractor under this contract) in the same way.
- If the Contracting Partner infringes these General Purchasing Conditions or the provisions of the Code of Conduct and does not remedy this infringement within an appropriate time after request by N&M, N&M shall be entitled to terminate the contract for good cause with immediate effect or to withdraw from the contract. In the case of an infringement of the applicable anti-corruption or cartel and competition provisions, sanction provisions (e.g. Anti-terror provisions, embargo provisions, etc.), as well as human rights and environmental law duties of care (in particular in accordance with the German Supply Chain Duty of Care Act) or other serious infringements of duties against the obligation of these General Purchasing Conditions above, N&M shall also be entitled to terminate the contract for good cause or to withdraw from the contract without setting a grace period.
XIV. Liability of N&M
- The liability of N&M shall be unlimited for personal injuries (injuries to life, limb and health) resulting from negligent or deliberate infringements of duty by N&M, its legal representatives or vicarious agents.
- In the case of material damage and pecuniary loss resulting from negligent or deliberate infringements of major contractual duties by N&M, its legal representatives or vicarious agents, the liability of N&M shall be limited to the foreseeable damage typical of the contract, but limited to a maximum of the sum insured by N&M’s liability insurance policy in the amount of EUR 15,000,000.00 for material damage and EUR 15,000,000.00 for pecuniary loss. Major contractual duties are those that protect essential contractual items of the Contracting Partner, i.e. those that the contract has to grant him, the fulfilment of which actually enable the contract to be fulfilled and upon compliance with which the Contracting Partner should be able to rely. The claim for damages due to infringement of major contractual duties shall be limited to the foreseeable damage typical of the contract.
- In the case of other material damage and pecuniary loss resulting from grossly negligent or deliberate infringements of duty by N&M, its legal representatives or vicarious agents, the liability of N&M shall be limited to the sum insured in the liability insurance policy in the amount of EUR 15,000,000.00 for material damage and EUR 15,000,000.00 for pecuniary loss.
- Otherwise, the liability of N&M is excluded. Liability due to culpable injury of life, limb or health shall remain unaffected; this also applies to mandatory liability according to the German Product Liability Act. Moreover, the liability limitation shall not apply if N&M has fraudulently concealed a defect or, exceptionally, accepted a properties or durability guarantee or a procurement risk.
XV. Other Agreements
- If individual regulations of these Conditions wholly or partially infringe mandatory law or are void or ineffective for other reasons, the validity of the other provisions shall remain unaffected by this. Void or ineffective provisions shall be replaced by provisions that are the closest to the economically desired regulatory purpose intended by the parties.
- The court at the headquarters of N&M is responsible for any disputes arising from the contractual relationship or associated with it. The headquarters of N&M is in 73730 Esslingen.
- The law of the Federal Republic of Germany shall apply. The language of the contract is German. The provisions of UN Sales Law are excluded.