General Terms and Conditions of Purchase
Gear Motion GmbH, Adolffstraße. 57, D-89584 Ehingen
§ 1. General – Scope of application
1.1 These General Terms and Conditions of Purchase apply to the conclusion of contracts with companies, Sec. 310 (1) of the German Civil Code (BGB), and legal entities under public law or a special fund under public law. Terms and conditions of the supplier or third parties do not apply, even if GEAR MOTION does not separately object to their validity in individual cases. Even if the supplier refers to a letter that contains or refers to the terms and conditions of the supplier or a third party, this does not constitute consent to the validity of those terms and conditions.
1.2 Additions and changes to the agreements made, including these General Terms and Conditions of Purchase, need to be confirmed in text form. Telecommunication transmission is sufficient for this, in particular by fax or email, provided that a copy of the signed declarations is sent. Verbal agreements are valid if GEAR MOTION confirms them in text form.
1.3 These General Terms and Conditions of Purchase also apply to all future transactions with the customer.
§ 2. Orders and contracts
2.1 Insofar as GEAR MOTION quotes (orders) do not expressly contain a binding period, GEAR MOTION is only bound by them for a week after the date of the quote. Receipt of the acceptance statement in text form by GEAR MOTION is decisive for timely acceptance. Changes and additions to quotes are only binding if GEAR MOTION has confirmed them in writing. The text form obligation is fulfilled by send a fax or email.
2.2 If the products ordered can no longer be used in GEAR MOTION's business operations due to circumstances that occur after the contract is concluded, GEAR MOTION is entitled to terminate the contract at any time by way of written declaration stating the reason. In this case, the supplier shall be remunerated for the part service they have rendered.
§ 3. Price
3.1 The price indicated in the order is binding and, unless otherwise specified, includes the costs of packaging, insurance, freight, transport and customs to the shipping address or place of use indicated by GEAR MOTION (DDP – Delivered Duty Paid in accordance with Incoterms 2010) – plus the applicable statutory VAT. If an EXW price (ex-works in accordance with Incoterms 2010) has been agreed in exceptional cases, GEAR MOTION only pays the most economical freight costs. In any event, the supplier bears the costs incurred until handover to the carrier, including loading.
3.2 The agreed prices are fixed prices. Claims based on supplementary deliveries and/or services can only be asserted following prior written agreement and when the contracting parties enter into a contract for the supplementary deliveries and/or services. GEAR MOTION benefits from discounts that come into force in the period between order placement and delivery.
3.3 GEAR MOTION is entitled to claim statutory setoff and retention rights.
§ 4. Payment/Invoice
4.1 Payment always takes place by bank transfer. The supplier must provide the appropriate bank details for this purpose. Payment by bill of exchange remains reserved.
4.2 Unless otherwise agreed, all payments are made in European currency.
4.3 Settlement of the invoice is not deemed as constituting approval of the delivery or waiver of notices of obvious or hidden defects.
4.4 In particular in the case of partial payments, GEAR MOTION reserves the right to secure these by bank guarantees that are to be agreed individually.
4.5 GEAR MOTION can only process invoices if they contain the order number shown on GEAR MOTION's order, along with the details and/or documents agreed when the order was placed and in accordance with the provisions of German VAT law. The supplier is responsible for all consequences arising from failure to comply with this obligation, unless they can prove that they are not responsible for said failure.
4.6 The deadline for payment of the invoice is 30 days and begins when GEAR MOTION receives a proper, verifiable invoice in accordance with Sec. 14 Value Added Tax Act (UStG), whereby the date on the receipt stamp and not the invoice date is decisive for compliance with the payment deadline. Invoices demonstrating defects or errors do not constitute a due invoice and GEAR MOTION can return them at any time. In the latter case, the due date is initially established on receipt of the correctly raised invoice.
4.7 In the event of a defective, incomplete, or not yet completed delivery or service, GEAR MOTION is entitled, without prejudice to its other rights and to a reasonable extent, to withhold payments on all claims arising from the business relationship without compensation until proper subsequent performance, and without the loss of rebates, discounts and similar payment concessions.
§ 5. Delivery dates, deadlines, delays
5.1 The delivery date detailed on the order is binding. GEAR MOTION reserves the right to make changes to the delivery dates. Compliance with the delivery date is determined by receipt of the goods by GEAR MOTION or at the designated delivery address.
5.2 Early delivery will only be accepted following prior agreement with GEAR MOTION. Without prior agreement, GEAR MOTION reserves the right refuse to accept the delivery and return it the supplier at their expense and risk.
5.3 The supplier is obliged to notify GEAR MOTION immediately in writing as soon as circumstances occur or become apparent to them, which indicate that the agreed delivery date cannot be met. GEAR MOTION reserves the right to make other arrangements to ensure timely procurement in cases in which it encounters scheduling problems due to delays.
5.4 If the agreed delivery or service deadline is exceeded, GEAR MOTION can withdraw from the contract after the expiry of a reasonable period of grace set by it and procure a replacement elsewhere. GEAR MOTION also reserves the right to claim damages for the direct and/or indirect damage caused by the delay.
5.5 In the event of a delivery delay, GEAR MOTION has the right to demand a contractual penalty of 1% per week or part thereof, up to a maximum of 5% of the total order value (final invoice amount excluding VAT). The right to assert further legal claims remains reserved.
§ 6. Packaging
6.1 Packaging may only be placed in invoice following prior agreement in writing.
6.2 GEAR MOTION reserves the right to return invoiced packaging that is still usable, subject to the amount invoiced.
6.3 Returnable packaging must be clearly marked as such and the number of items must be clearly indicated on the accompanying documents. The pallets used for transportation must be in perfect condition.
6.4 The goods must be packed in such a way that damage during transportation is avoided.
6.5 The supplier's obligation to take back packaging is governed by the statutory provisions.
§ 7. Acceptance of goods, risk transfer, property rights
7.1 Events caused by force majeure and operational disruptions, of whatever nature and for whatever reason, which make it difficult or impossible for GEAR MOTION to accept goods, as well as unpredictable deviations in quantity occurring at GEAR MOTION, give it the right to postpone acceptance deadlines or withdraw from the delivery contract on the basis of written declarations. In the event of withdrawal, GEAR MOTION shall reimburse the supplier for proven additional costs incurred up to the time of withdrawal.
7.2 Shipment takes place at the risk of the supplier. The risk of any deterioration, including accidental loss, remains with the supplier until proper and complete delivery to the shipping address or place of use specified by GEAR MOTION, unless otherwise agreed in individual cases.
7.3 In the case of deliveries that include installation or assembly, the risk passes to GEAR MOTION on successful completion, which is to be documented in an acceptance report.
7.4 Insofar as the supplier has to supply material samples, test reports, quality documents or other contractually agreed documents, the completeness of the delivery and service also presupposes the receipt of these documents by GEAR MOTION.
7.5 If goods are delivered subject to retention of title, GEAR MOTION is entitled to resell them in the ordinary course of business. GEAR MOTION becomes owner at the latest on full payment of the fee.
§ 8. Warranty, notice of material defects and defects of title
8.1 The supplier must guarantee to GEAR MOTION that their deliveries and services comply with the generally accepted technical rules and the contractually agreed properties, standards and regulations governing safety, occupational health and safety, accident prevention and other regulations, that their deliveries and services are of the quality assured by the supplier and that they are not defective. The corresponding statutory provisions apply in all other cases.
8.2 A warranty period of 36 months applies to all deliveries and services.
8.3 Notices of defects of an obvious nature are deemed to have been served if GEAR MOTION provides notice of the defect without delay, i.e. as soon as possible in the ordinary course of business. Notice of defects of a hidden nature are deemed to have been served if GEAR MOTION gives notice of them following discovery, at the beginning of or during the processing phase.
8.4 In the event that the notice of defects is served properly, GEAR MOTION can, depending on the requirement, assert the following rights in the event of defective delivery or service:
8.4.1 Reduction of the sales price if the goods can be used or if the defective service is accepted.
8.4.2 Delivery of replacement goods in perfect condition or repeat performance within a reasonable period of time, including free take-back of the rejected goods by the supplier. In the event of replacement or repeat performance, subsequent performance shall be deemed to have failed if the material defect has not been remedied after the first attempt at subsequent performance.
If this is impossible, GEAR MOTION is entitled to withdraw from the contract, to procure a replacement from an alternative source and to claim damages. GEAR MOTION is not obliged to waive warranty rights on acceptance of the defective delivery or service.
8.5 If the immediate rectification of a defect is necessary to avert greater disadvantage, GEAR MOTION is entitled to rectify the defect themselves or have it rectified at the expense of the supplier. The liability of the supplier in the event of the rectification of defects includes all damage and costs caused due to the defect.
8.6 If the supplier makes a new delivery or rectifies a defect within the scope of its obligation to rectify defects, the limitation period specified in Sec. 8 (2) commences again. The supplier also bears the costs and risk of measures required for subsequent performance (e.g. cost of returns, transportation costs).
§ 9. Liability and other claims
9.1 The supplier is liable for personal injury, property damage and consequential damage they cause within the scope of the statutory provisions.
9.2 To the extent that the supplier is responsible for such damage, they are obliged to indemnify GEAR MOTION against claims for damages by third parties.
9.3 If GEAR MOTION is obliged to undertake a recall campaign directed towards third parties due to a defect in a product supplied by the supplier, the supplier must bear all costs associated with the recall campaign.
9.4 If a claim is made against GEAR MOTION based on strict liability in accordance with non-mandatory law vis-à-vis third parties, then the supplier is liable to GEAR MOTION and shall indemnify GEAR MOTION at first request against such claims to the extent that they would also be directly liable. The principles of Sec. 254 German Civil Code (BGB) apply accordingly to compensation for damages between GEAR MOTION and the supplier. This also applies in the event of direct claims made against the supplier.
9.5 The supplier must take out appropriate liability insurance and provide evidence of this to GEAR MOTION on request.
§ 10. Copyright, inventor's rights, property rights (of third parties)
10.1 The supplier guarantees that no third party rights are violated in connection with their delivery.
10.2 If claims are made against GEAR MOTION in this regard, the supplier is obliged to indemnify GEAR MOTION against these claims.
10.3 The indemnity obligation of the supplier relates to all damages and expenses necessarily incurred by GEAR MOTION from or in connection with the claim by a third party.
§ 11. Drawings, models, technical documents, production equipment, provisions, confidentiality
11.1 The supplier is obliged to maintain strict confidentiality concerning all illustrations, drawings, calculations, templates, samples and know-how received, as well as other documents and information, and to return them without request after completion of the order. The supplier may not hand over otherwise make such items accessible to unauthorised third parties. Reproduction of such items is only permitted within the framework of operating requirements and subject to copyright approval.
11.2 The supplier's duty to maintain confidentiality also extends to personal data.
11.3 The obligation to maintain confidentiality also applies following the completion or failure of a contract; it expires if and to the extent that the manufacturing knowledge contained in the illustrations, drawings, calculations and other documents provided becomes known in the public domain. Upstream suppliers are to be placed under this obligation accordingly.
11.4 Insofar as GEAR MOTION supplies and/or provides substances and materials, these remain the property of GEAR MOTION. The supplier shall carry out processing or conversion on behalf of GEAR MOTION. If substances and materials belonging to GEAR MOTION are processed with other items that do not belong to it, it shall acquire co-ownership of the new item in the ratio of the value of its items to the other items processed at the time of processing.
11.5 The supplier may only promote the business relationship between the contracting parties with the prior written consent of GEAR MOTION. The supplier undertakes not to use the GEAR MOTION company name or trademarks without written consent.
11.6 The obligation to maintain secrecy and not to exploit the information and documents provided does not apply if it can be proven that the supplier has lawfully received them or that they were known in the public domain or accessible prior to the notification. The burden of proof lies with the supplier.
§ 12. Supplier code of conduct, security in the supply chain
12.1 The supplier is obliged to comply with the laws of the applicable legal system(s). In particular, the supplier shall not actively or passively, nor directly or indirectly participate in any form of bribery, child labour or violation of the fundamental rights of their employees. The supplier shall also assume responsibility for the workplace health and safety of their employees, comply with environmental laws and encourage and request that their upstream suppliers comply with this code of conduct to the best of their ability. Reference is made here to the GEAR MOTION Supplier Code of Conduct which can be viewed on the "www.gear-motion.de" website.
12.2 The supplier issues and undertakes take the necessary organisational instructions and measures, in particular in the areas of property protection, security of business partners, personnel and information, and packaging and transport, to ensure security in the supply chain in accordance with the requirements of the relevant internationally recognised initiatives based on the WCO SAFE Framework of Standards (e.g. AEO, C-TPAT). With regard to deliveries made and services rendered to GEAR MOTION or to third parties designated by GEAR MOTION, the supplier shall protect them against unauthorised access and manipulation. The supplier shall only use reliable personnel for said deliveries and services and shall oblige any subcontractors to take similarly appropriate measures.
12.3 If the supplier culpably breaches the duties set out under Sec. 12, GEAR MOTION is entitled to withdraw from the contract or terminate the contract, without prejudice to any further claims. If it is possible to eliminate the breach of duty, this right may only be exercised if a reasonable period of time for eliminating the breach of duty has fruitlessly expired.
§ 13. Export control
13.1 The supplier is obliged to meet all requirements of applicable national and international customs and foreign trade law (“foreign trade law”). The supplier is obliged to notify GEAR MOTION in writing, no later than two weeks after order placement and if changes are made, of all information and data that GEAR MOTION requires to comply with foreign trade law for export, import and re-export, and in particular:
- All applicable export list numbers, including the Export Control Classification Number as per the US Commerce Control List (ECCN);
- The statistical commodity code according to the current commodity classification of foreign trade statistics and the HS (Harmonised System) code, and the
- Country of origin (non-preferential origin) and, if required by GEAR MOTION, supplier declarations concerning preferential origin (for European suppliers) or certificates concerning preference (for non-European suppliers).
13.2 If the supplier breaches their duties pursuant to Sec. 13 (1), they shall bear all costs and damage incurred by GEAR MOTION as a result, unless they are not responsible for the breach of duty.
13.3 The fulfilment of the contract on the part of GEAR MOTION is subject to the condition that there are neither obstacles due to national or international regulations of foreign trade law nor embargoes and/or other sanctions.
Sec. 14 Data protection
Sec. 15 Hazardous substances
If the object of the contract is a substance or preparation with hazardous properties in terms of the Ordinance on Hazardous Substances (GefStoffV) or if these first arise during handling, then the supplier is obliged to classify these in accordance with the provisions of the aforementioned ordinance valid at the time of delivery, pack them accordingly and label them before placing them on the market. For initial sampling and the first series delivery, the supplier must send GEAR MOTION a current, dated safety data sheet in German and English, including information on the place of use and intended use. The safety data sheet must be resent without being requested whenever a change in the substance/preparation takes place and whenever the supplier revises the safety data sheet, but at the least every 3 years. If special handling regulations apply, GEAR MOTION must be informed separately in writing and advised on the use of the substance/preparation, taking into account the local conditions at GEAR MOTION. The provisions, and in particular the supplier's obligations under the Ordinance on Hazardous Substances (GefStoffV) in the version applicable at the time of delivery, remain unaffected.
Sec. 16 Assignment
The supplier is not entitled to assign their claims from the contractual relationship to third parties.
Sec. 17 Place of delivery, jurisdiction and applicable law
1. If insolvency proceedings are filed against the assets of one party, the other party is entitled to withdraw from the contract for the part not fulfilled to the extent permitted by legal possibilities.
2. Unless otherwise stated in the order, the registered office of GEAR MOTION is the place of performance.
3. If the supplier is a merchant, the registered office of GEAR MOTION is agreed as the place of jurisdiction. GEAR MOTION also reserves the right to bring an action against the supplier at the court where the supplier has their registered office.
4. The law of the Federal Republic of Germany applies excluding the United Nations Convention on Contracts for the International Sale of Goods of 11/04/1980 (UN Sales Convention).
5. If individual provisions in these General Terms and Conditions of Purchase are or become invalid, the remaining provisions shall continue to apply notwithstanding.
Gear Motion GmbH, Version 1.0, November 2021