(1) These General Purchasing Terms and Conditions apply to all suppliers of TUNAP (referred to below as the “Supplier”) with regard to the delivery of movable items (referred to below as the “goods” or “product(s)”) and/or services, regardless of whether the Supplier performs itself or whether it buys-in from upstream suppliers. The General Purchasing Terms and Conditions only apply if the Supplier is an undertaking (§ 14 German Civil Code; referred to below as “BGB”), a legal entity under public law or a public law special trust.
(2) General Purchasing Terms and Conditions in their current version apply also apply as framework agreement to contracts concerning the sale and/or delivery of movable items and/or services to the same Supplier in the future, without the need for TUNAP to refer to such again in each single case; the current version of the General Purchasing Terms and Conditions can be called-up at www.tunap.com.
(3) These General Purchasing Terms and Conditions apply exclusively. The Supplier’s general conditions of business that deviate from, contradict or supplement these General Purchasing Terms and Conditions only become a component of contract insofar as TUNAP expressly approves their validity in writing. This requirement of approval applies under all circumstances, even if, for example, TUNAP makes deliveries without reservation in the knowledge of the Supplier’s general conditions of business.
(4) Individual agreements made with the Supplier in a stand-alone case (including auxiliary accords, supplements and changes) have priority over these General Purchasing Terms and Conditions. A written contract or written confirmation by TUNAP is nevertheless decisive for the content of such agreements.
(5) Declarations and notices with a legal relevance which must be issued to TUNAP by the Supplier after conclusion of contract (e.g. setting deadlines, reminders, declarations of rescission) require the written form to be effective.
(6) References to the validity of legal provisions only have a clarifying meaning. Legal provisions apply even without such clarification, unless these are directly changed or specifically excluded in these General Purchasing Terms and Conditions.
(1) The Supplier’s offers, drafts, trials and samples are free-of-charge for TUNAP. At TUNAP’s request, they must be taken back by the Supplier without delay at own expense.
(2) Offers are binding on the Supplier and are valid for a minimum period of 12 (twelve) weeks starting from the date of the offer.
(3) Remuneration is not granted for visits or for working out offers, projects etc., unless remuneration has been specifically agreed or if a legal claim exists.
(4) When submitting an offer, the Supplier has a particular duty of inspection and care, particularly in references to supplier material numbers. TUNAP accepts the details provided by the Supplier on specifications (supplier material number) without further examination.
(5) The Supplier’s offers must always be submitted on the basis of the specifications provided by TUNAP. They require an analysis of manufacturing feasibility prepared by the Supplier. If this analysis should establish that the product cannot be manufactured in accordance with the specifications provided by TUNAP, the product can be offered alternatively as an absolute exception. An alternative offer must be submitted with a unique, clear marking on it. The marking “Alternative Offer” is essential. The features that deviate from the specifications provided by TUNAP must be clearly highlighted and the basis of the offer be depicted as a target/actual comparison.
(6) The Supplier shall notify TUNAP without delay in writing of obvious anomalies (e.g. spelling and calculation errors), incomplete inquiries, the lack of inquiry documents and contradictory inquiry bases (e.g. the TUNAP inquiry specifications differ from any supplier material numbers stated in the inquiry) for the purpose of correction or completion.
(7) If the Supplier violates its legal duties and the aforesaid obligations in contract initiation phase, it is liable for all the resulting losses.
(1) TUNAP orders are binding at the earliest upon presentation. Orders are submitted in writing or transmitted electronically. Suppliers who have no orders shall not be recognised. TUNAP’s silence towards offers, demands or other declarations made by the Supplier do not mean approval, unless such have been specifically agreed in writing.
(2) The Supplier shall notify TUNAP without delay in writing of obvious anomalies (e.g. spelling and calculation errors), incomplete inquiries, the lack of inquiry documents and contradictory inquiry bases for the purpose of correction or completion.
(3) If the Supplier fails to object to an order within 5 (five) work days from receipt, the contract enters force on the basis of this order. Objection is inadmissible unless it would be unreasonable for the Supplier to accept the order. Each deviation from the order represents an objection. Confirmations of order only have the declaratory effect that the Supplier has received the order. If TUNAP can prove that TUNAP has sent a declaration, it is assumed that the Supplier has received this declaration.
(1) The delivery time stated by TUNAP in the order is binding. The Supplier is obliged to inform TUNAP without delay in writing if it can be seen that the agreed delivery times cannot be met. The Supplier shall there by state the reasons and the likely delay. Part-deliveries before the agreed delivery date require prior approval from TUNAP in writing.
(2) If the Supplier fails to perform or does not do so in the agreed delivery time, or if it is in default, TUNAP’s rights – particularly of withdrawal and to claim damages – are determined by legal regulations. The provisions in Paragraph 3 remain unaffected.
(3) If the Supplier is in default, TUNAP can demand a flat-rate processing charge of Euro 50 per customer arrears and for each article in arrears. Insofar, the Supplier waives the objection of a continued violation. TUNAP is entitled to demand the flat-rate processing charge, apart from fulfilment, as the minimum amount of damages owed by the Supplier under legal regulations; the pursuit of further-going claims to damages remains unaffected. If TUNAP accepts late performance, TUNAP shall pursue the flat-rate processing charge at the latest by the final payment.
(4) The Supplier cannot invoke the objection that necessary documents have not been handed over by TUNAP unless it has sent a written reminder of the missing documents and has still not received these within a reasonable period of grace.
(5) TUNAP’s claim to delivery can be excluded by TUNAP if the Supplier, at TUNAP’s request, has paid damages to the full extent instead of making the delivery. Acceptance of the late delivery does not represent a waiver of claims to damages or of the flat-rate processing charge.
(6) An Act of God releases the contractual partners for the duration of the hindrance and in the scope of its effects on the duties of performance. The contractual partners are obliged, within the realms of what is reasonable, to give the necessary information without delay and to adapt their obligations to the changed circumstances to the best of their belief and knowledge. TUNAP is fully or partly released from the obligation of accepting the delivery/service ordered and is entitled to withdraw from the contract, if the delivery/service delayed by the Act of God can no longer be used by TUNAP, in consideration of financial aspects.
(7) If the delivery is made earlier than agreed, TUNAP reserves the right of return at the expense of the Supplier. If no return is made upon premature delivery, the goods are stored at TUNAP until the agreed delivery date at the Supplier’s expense and risk. In case of premature delivery, TUNAP reserves the right to not make the payment until the agreed due date.
(1) Delivery is advised in accordance with any transport and packaging instructions of TUNAP possibly issued separately. The Supplier shall bear all costs arising from handover to the freight forwarder, including loading and cartage.
(2) The Incoterm between European suppliers and TUNAP is CPT, the Incoterm between non-European suppliers and TUNAP is DAP Wolfratshausen/ Oberlichtenau (pursuant to the INCOTERMS 2010).
(3) The delivery shall be made in accordance with any transport and packaging instructions of TUNAP possibly issued separately.
(4) If the Supplier or its vicarious agents culpably violate the provisions of TUNAP’s transport and packaging instructions, TUNAP can demand a flat-rate processing charge of Euro 100 per delivery. Insofar, the Supplier waives the objection of a continued violation. TUNAP is furthermore entitled to invoice the Supplier for the costs of rework and any other expenses demonstrably incurred for the non-observance of TUNAP’s transport and packaging instructions; the pursuit of further-going damages remains unaffected.
(5) The Supplier shall ensure reasonable packaging that can withstand carriage (§411 HGB). Transport damages incurred due to non-recognition of inadequate packaging by insured parties are borne by the Supplier.
(6) The risk of the accidental destruction or deterioration of the item passes to TUNAP upon handover at the place of fulfilment. If acceptance has been agreed, this is decisive for the transfer of risk.
(7) The legal regulations apply to the advent of TUNAP’s default of acceptance. However, the Supplier must expressly offer its service to TUNAP even if a certain or definable calendar time has been agreed for an act or cooperation on the part of TUNAP. If TUNAP is in default of acceptance, the Supplier can demand recompense of its added expenditure in accordance with legal regulations.
(8) TUNAP shall only take-in the quantities or number of pieces it orders. Under-deliveries are inadmissible. Over-deliveries are only admissible after separate agreement with TUNAP. Over-deliveries shall only be taken-in with conforming packaging units. Over-deliveries with non-conforming packaging units can be scrapped at the expense of the Supplier.
(1) The Supplier shall inform TUNAP in good time by written notification of changes in manufacturing processes, changes in materials or upstream suppliers for products or services, the relocation of production sites, furthermore of changes in processes or equipment for the testing and inspection of parts or of other quality assurance action. TUNAP is entitled, in the necessary scope, to review whether the changes could have a disadvantageous effect on the product. On request, the Supplier shall provide the necessary documents for this and enable audits in the necessary scope.
(2) TUNAP must be informed in writing of the deployment of subcontractors, freelance workers, upstream suppliers and other third parties (referred to together as “commissioned parties”) who are not employees of the Supplier in the context of the provision of services owed to TUNAP. In its relationship with commissioned parties, the Supplier shall ensure that all services are executed properly and completely, that the proper provision of services can be comprehensively checked by corresponding documentation and regular audits by TUNAP and that the duties under the contractual relationship with TUNAP also apply in the relationship with commissioned parties.
(3) Commissioned parties are regarded as the Supplier’s vicarious agents. Failures, delays, disturbances, poor performance or other defects in the deliveries and services of commissioned parties, regardless of what these failures are based on, do not release the Supplier from its obligation of performance under the contract concluded with TUNAP.
(1) The price stated in the order is binding. The prices do not contain value-added tax, even if this is not itemised separately. The prices agreed are fixed prices and exclude subsequent claims of any kind. Auxiliary costs, such as the costs of packaging, minimum quantity surcharges, other flat-rate processing fees and customs duties, are contained in the agreed prices.
(2) Delivery notes, freight advices, invoices and all correspondence must contain TUNAP’s order number.
(3) Invoices shall be compiled as single item invoices, stating the invoice number, the order number, the TUNAP article number, the quantity, price and other features of assignment, and sent as PDF files to the following e-Mail address: Invoice.email@example.com. Invoices must conform to legal regulations. The Supplier is obliged to send one PDF file per invoice.
(4) In case of deliveries from regions outside the EU customs area, the goods delivery shall be accompanied by a copy of the invoice / a pro forma invoice.
(5) If a product delivered by the Supplier is subject to the reverse charge procedure, the Supplier shall inform TUNAP of this in the form of a separate invoice and shall mark such invoices with an appropriate reference to the reverse charge procedure.
(6) Payments are made in accordance with the terms of payment agreed individually. In case of bank remittances, payment is made on-time if TUNAP’s remittance order is received by TUNAP’s bank before the payment deadline has expired. TUNAP is not responsible for delays on the part of the banks involved in the payment procedures. Payment is made under the reservation of a review of the invoice.
(7) TUNAP does not owe any interest after the due date. Default interest is five (5) percentage points per annum above the basis rate of interest. The legal regulations apply to the advent of default of payment by TUNAP. However, a written reminder is required from the Supplier in all circumstances.
(8) TUNAP accrues rights of offsetting, rights of retention, rights of retention and the argument of a non-fulfilled contract in the scope allowed by law. In particular, TUNAP is entitled to withhold due payments as long as TUNAP still has claims against the Supplier from incomplete or defective performance.
(9) The Supplier does not have a right of offsetting or retention unless its counter-claims are not disputed or have been established by a court of law.
(1) Title must be transferred upon handover of the goods to TUNAP without fail and without regard to payment of the price. However, if TUNAP accepts the Supplier’s offer of assignment conditioned by payment of the purchase price in a stand-alone case, the Supplier’s reservation of title expires at the latest upon payment of the purchase price for the goods delivered. Every prolonged or extended reservation of title by the Supplier is excluded.
(2) If objects provided by TUNAP are processed, mixed or combined by the Supplier, this is done on TUNAP’s behalf. It is agreed that TUNAP accrues co-ownership to the manufactures produced using the provided objects in the ratio of the value of the provided objects to the value of the overall manufactures. This co-ownership shall be safeguarded for TUNAP until the date of handover by the Supplier.
(1) All business or technical information made available by TUNAP shall be kept secret from third parties, unless it is demonstrably publicly known. Such information shall only be provided to people in the Supplier’s own works who need to be involved for the purpose of the delivery to TUNAP and who have likewise been obliged to maintain secrecy.
(2) TUNAP reserves ownership and the copyrights to all documents and aids (in particular to drawings, illustrations, drafts, calculations, descriptions, plans, models, samples, technical specifications, data carriers, other written records, tools, parts and materials) provided to the Supplier by TUNAP to execute an order. Such documents and aids shall be used exclusively for the contractual service and returned in full to TUNAP (including any copies or records produced) upon completion of the order. Manufactures produced using the documents and aids of TUNAP may not be used by the Supplier itself, nor offered or delivered to third parties.
(3) Technical documents, drawings, diagrams, charts, graphics, photographs, layouts and other documentation – whether such be on data carriers, in printed form or are the material for preparing or setting printouts - and all samples, tools, materials and other means of operation produced by the Supplier in the course of executing the order become the property of TUNAP upon handover. Furthermore, TUNAP receives all rights of ownership, use and exploitation to all the aforesaid, copyrighted works, insofar as this is admissible under law. TUNAP does not owe any separate remuneration for the transfer of the foregoing rights; it is contained to the full extent in the prices stated in the orders.
(4) Without prior, specific permission in writing, the Supplier is not permitted to name TUNAP or the business relationship between the Supplier and TUNAP as a reference in any kind of form.
(1) Unless something different is determined below, legal regulations apply to the rights of TUNAP in case the goods have material defects or legal deficiencies and in case of other violations of duty by the Supplier.
(2) The Supplier is liable under legal regulations, particularly in that the goods have the agreed quality upon transfer of risk to TUNAP. The product descriptions apply as the agreement on quality in all cases. These descriptions are an object of the respective contract (particularly by designation or reference in the order from TUNAP) or are included in the contract in the same way as these General Purchasing Terms and Conditions. It makes no difference in this context whether the product description originates from TUNAP or from the Supplier.
(3) In deviation to § 442 Para. 1 P. 2 BGB, TUNAP accrues claims to defects without limitation, even if the defect is not discovered upon conclusion of contract due to gross negligence.
(4) The legal regulations (§§ 377, 381 of the German Commercial Code; “HGB”) apply to the commercial duty of inspection and complaint in accordance with the following regulation: TUNAP’s duty of inspection is limited to defects obviously recognisable upon the inspection of incoming goods by TUNAP, which involves a visual appraisal of the goods, including the delivery papers (e.g. transport damage, false deliveries and under-deliveries). If acceptance has been agreed, there is no duty of inspection. For the rest, it depends on the extent that an inspection is required as part of proper business procedures, in consideration of the circumstances prevailing in the particular case.
(5) The duty of complaint for defects discovered at a later date remains unaffected. A complaint by TUNAP (notification of defect) is regarded as having been made without delay and on-time in all cases if it is received by the Supplier within 10 calendar days after TUNAP recognises the defect.
(6) The costs incurred by the Supplier for the purpose of inspection and rework (including any costs of disassembly and reassembly) are borne by the Supplier, even if it transpires that a defect was not present. TUNAP’s liability for damages in case of an unjustified demand to rectify a defect remains unaffected; insofar, TUNAP is only liable if TUNAP has recognised that a defect was not present or if it fails to recognise this due to gross negligence.
(7) If the Supplier fails to achieve subsequent fulfilment (at the discretion of TUNAP, by rectifying the defect (rework) or by delivering a faultless item (replacement delivery)) within a reasonable period of grace set by TUNAP, TUNAP can rectify the defect itself and claim recompense for this or an appropriate advance payment from the Supplier. If subsequent fulfilment by the Supplier fails or is unacceptable for TUNAP (e.g. due to a particular urgency, if operational safety is endangered or if disproportionate damage threatens), it is not necessary to set a period of grace; under such circumstances, TUNAP shall inform the Supplier without delay, if possible in advance.
(8) If the Supplier fulfils its obligation of subsequent fulfilment by making a replacement delivery, the limitation period for the goods delivered as a replacement starts to run anew, unless the Supplier has expressly and accurately reserved the right of making the replacement delivery only as goodwill, to prevent disputes or in the interests of continuing the delivery relationship.
(9) In case of material defects or legal deficiencies, TUNAP is otherwise entitled to reduce the purchase price or withdraw from the contract in accordance with legal regulations. Moreover, TUNAP has a claim to damages and recompense of expenditure in accordance with legal regulations.
(10) In case TUNAP establishes a defect in a product delivered by the Supplier or if a defect is established at a later date due to a justified customer complaint and TUNAP has to take back and/or block the product for this reason, TUNAP is entitled to invoice a flat-rate processing charge of Euro 100 to the Supplier. The flat-rate processing charge is not offset against any claims to damages. TUNAP can collect defective articles, especially mass-produced items, and return them to the Supplier in larger units. TUNAP is entitled to invoice the normal freight costs for this and, additionally, a flat-rate processing charge of a maximum Euro 100 to the Supplier for each return of defective products. Insofar, the Supplier waives the objection of a continued violation. In this case, the Supplier is furthermore obliged to recompense TUNAP for the costs of rework required and any other expenditure.
(11) If products marked with the TUNAP brand are justifiably returned by TUNAP or are not accepted by TUNAP, the Supplier must destroy these products and may not resell them to third parties. A contractual fine amounting to double the value of the goods, although at least Euro 15,000, is agreed for each case of infringement, to the exclusion of a continued violation.
(1) TUNAP’s claims to recourse within a chain of delivery determined by law (recourse of the entrepreneur pursuant to §§ 478, 479 BGB) accrue to TUNAP without restriction apart from claims to defects. In particular, TUNAP is entitled to demand precisely the nature of subsequent fulfilment (rework or replacement delivery) from the Supplier that TUNAP owes in an individual case to its buyer. TUNAP’s cure chosen under law (§ 439 Para. 1 BGB) is not restricted by this.
(2) Before TUNAP recognises or fulfils a claim to defects pursued by its buyer (including recompense of expenditure in accordance with §§ 478 Para. 3, 439 Para. 2 BGB), TUNAP shall notify the Supplier, give a brief description of the facts and request a written appraisal. If the appraisal fails to arrive within a reasonable period of grace and if a mutual solution is not found, TUNAP owes the claim to defects actually pursued by its buyer; in this case, the Supplier must prove otherwise.
(3) TUNAP’s claims under Paragraph 1 also apply if the goods are further processed by TUNAP or further processed by a customer of TUNAP before being sold to a consumer. An example of reprocessing here is assembly.
(1) In case TUNAP is pursued on the basis of product liability, the Supplier is obliged to release TUNAP from such claims, insofar as the damage has been caused by a defect on the part of the goods delivered by the Supplier. In cases of culpability-dependent liability, however, this only applies if the Supplier really is culpable. If the cause of damage is the responsibility of the Supplier, it must prove that it is not responsible.
(2) Within the framework of its obligation of release, the Supplier shall bear all the costs and expenditure arising from or in connection with a third-party claim, including call-back campaigns performed by TUNAP. Before a call-back campaign, TUNAP shall inform the Supplier to enable it to cooperate adequately and to exchange views on efficient performance; this is not necessary if it is not possible to inform or involve the Supplier due to the particular urgency of the matter.
(3) For the rest, the Supplier is also liable for damages incurred by TUNAP due to reasonable precautions to protect against pursuit under non-contractual liability that are decisively attributable to the Supplier (e.g. public promotions and advertising).
(4) Further-going claims under law remain unaffected.
(5) The Supplier shall always maintain, at its own expense, adequate product liability insurance with a coverage sum for personal losses and material damages of at least Euro 10 million per case. The costs of disassembly and reassembly and of call-backs must be covered by the insurance policy. On request, the Supplier shall demonstrate the conclusion and existence of product liability insurance to TUNAP.
(1) Unless regulated otherwise by the following provisions in this Section, claims expire by limitation of time under legal regulations.
(2) In deviation to § 438 Para. 1 No. 3 BGB, the general limitation period for claims to defects is 3-years from the transfer of risk. The 3-year limitation period also applies accordingly to claims arising from legal deficiencies, whereby the legal limitation period for third-party, in rem claims to handover (§ 438 Para. 1 No. 1 BGB) remains unaffected; moreover, claims arising from legal deficiencies do not expire by limitation of time as long as the third-party can still pursue the right – particularly due to a lack of limitation by time – against TUNAP.
(3) The periods of limitation under commercial law, including the foregoing prolongation, apply to all contractual claims to defects in the scope allowed by law. If TUNAP also accrues non-contractual claims to damages due to a defect, the regular period of limitation under law (§§ 195, 199 BGB) applies, unless the application of limitation periods under commercial law leads to a longer limitation period in a stand-alone case.
(1) The Supplier is obliged to notify TUNAP of any duties of approval to which its goods are subject under prevailing German, European (EU) and US laws concerning exports, customs and foreign trade and under the laws concerning exports, customs and foreign trade of the country in which its goods originate, as early as possible before the delivery date in written form. The Supplier shall hereby provide the following information and data:
The Supplier is obliged to inform TUNAP without delay about all changes in the foregoing information and data in written form.
(2) If the Supplier infringes its duties under Paragraph 1, it shall bear all the expenses, damages and other disadvantages (e.g. subsequent demands for foreign input contributions, fines), which TUNAP incurs because of this. This does not apply if the Supplier is not responsible for the infringement of duty.
(1) The Supplier is obliged to comply with the provisions of the Minimum Wage Act.
(2) The Supplier is obliged to observe the recognised state-of-the-art (particularly DIN norms, VDE provisions, VDI directives, DVGW rules), the legal regulations governing product safety (particularly the Product Safety Act), the minimum standards of internationally prevailing labour laws, particularly all conventions of the International Labour Organisation (“ILO”) with regard to the rights of workers, working hours and industrial safety, as well as all other prevailing laws and official provisions.
(3) If hazardous substances are delivered in the sense of the Hazardous Substances Ordinance or products whose use cannot exclude the release of such substances, the Supplier shall provide the data required to compile the safety data sheet to TUNAP or to the service provider commissioned by TUNAP without prompting.
(4) If the products delivered by the Supplier to TUNAP are construction products in the sense of Regulation (EU) No. 305/2011 (“Construction Products Regulation”), the Supplier is obliged to provide TUNAP with all the information required to compile the declaration of performance or the declarations of performance to be compiled by the Supplier without delay, in a suitably permanent form. The Supplier shall install or have installed the CE marking on these products in accordance with the prevailing legal regulations (in particular, the Construction Products Regulation and Art. 30 of Directive (EC) No. 765/2008). Upon installing the CE marking, the Supplier guarantees the conformity of the construction product with the performance it declares and compliance with all prevailing legal regulations connected with the instalment of the CE marking.
(5) In case the Supplier violates one of the foregoing obligations, the Supplier shall release TUNAP, the undertakings affiliated to TUNAP as well as their customers from all costs, third-party claims (particularly from direct or indirect claims to damages) and from other disadvantages (e.g. fines) associated with infringement of the foregoing provision. This does not apply if the Supplier is not responsible for the infringement of duty. Furthermore, TUNAP is entitled to cancel the relevant order without delay and refuse to accept the delivery at any time, without TUNAP incurring costs for this. Any existing claims to damages are unaffected by this. A cancellation of the order or refusal of acceptance does not represent a waiver of any claims to damages.
(1) Unless agreed otherwise, the language of communication is German or English. All documents, such as testimonies, certificates, drawings and first sample test reports, shall be provided by the Supplier, at the latest at the first request, in German or English.
(1) German law shall prevail over these General Purchasing Terms and Conditions and all legal relationships between TUNAP and the Supplier, to the exclusion of international, uniform law (in particular, UN Commercial Law). The prerequisites and effects of the reservation of title are subject to the law of the place at which the goods are located, if the choice in favour of German law is inadmissible or invalid according to the provisions of the domestic law concerned.
(2) If the Supplier is a merchant in the sense of §§ 1 ff. HGB, a legal entity under public law or a public law special trust, the exclusive place of jurisdiction – also internationally - for all disputes arising from or connected with the contractual relationship is Wolfratshausen, Germany. This does not prevent TUNAP from taking action against the Supplier at any other admissible place of jurisdiction.
(As at May 2018)