Conditions of Purchase of company ACO Ahlmann SE & Co. KG
1. Applicability
1.1 These Conditions of Purchase of company ACO Ahlmann SE & Co. KG (hereinafter referred to as "ACO") apply exclusively. Any contradicting or deviating conditions of the supplier will not be recognized by ACO without its express written approval.
1.2 The Conditions of Purchase shall apply even if ACO is aware of contradicting conditions or of supplier conditions which deviate from these Conditions of Purchase and accepts the delivery of the supplier unconditionally.
1.3 The agreement between ACO and the supplier is based upon a written cooperation contract, if it has been concluded, and the written purchase order of ACO. If deviations between the cooperation contract/purchase order and the Conditions of Purchase occur, the cooperation contract and the purchase order have priority.
1.4 Any future business transactions with the supplier are also subject to arrangements from the cooperation contract and purchase order exclusively on the basis of these Conditions of Purchase.
1.5 These Conditions of Purchase also apply to contracts which pertain to the delivery of movable items to be manufactured or created. Article 651 of the German Civil Code (§ 651 BGB) is being specifically referred to.
2. Offers, Purchase Orders
2.1 To become effective the Offer (Purchase Order) aiming at concluding a supply contract requires the written form as business letter, fax, or e-mail.
2.2 The Supplier is obligated to accept the Purchase Order in writing within 14 days after the order date, stating the price and period of supply. In order to meet the deadline, it is hereby important that ACO receives the Supplier's acceptance in time. After expiry of the deadline ACO is no longer bound by its purchase order. No remuneration will be granted for generating offers, plans, drafts, and suchlike.
2.3 If nothing else has been stipulated the delivery is to be carried out "Free Works, Duty Paid" (DDP), including packaging. Even if ACO arranges the pick-up of the contract goods the agreed price includes costs for packaging if nothing else has been stipulated expressly.
3. Deadline and Delivery Dates
Any deadlines and delivery dates which have been arranged are binding. Adherence in this respect is subject to the receipt of the contract goods at ACO. If ex works has been stipulated the Supplier has to provide the contract goods, taking into account the usual time for loading and shipping.
4. Delivery Delay, Impossibility of Rendering Services, Contractual Penalty, Reasons for Rescission
4.1 The agreed specified delivery dates must be strictly adhered to. Culpable non-compliance with agreed or specified delivery dates shall result in an obligation to pay damages in addition to performance without further reminder. Further claims, in particular the right to withdraw from the contract, are expressly reserved.
4.2 The Supplier is obliged to grant ACO a compensation for any damage caused by delay.
4.3 Unless otherwise agreed, in the event of a delay in delivery ACO is entitled to demand a contractual penalty in the amount of 1% of the delivery value according to the final invoice per week or part thereof, but not more than a total of 5% of the delivery value according to the final invoice. ACO reserves the right to assert further claims arising from delay. ACO also reserves the right to assert further claims, in particular the right to withdraw from the contract.
The Supplier must reimburse the following costs, among others: Special travel costs (both from suppliers to ACO and from ACO to its customers, additional set-up costs in production, additional costs due to special shifts, production downtime costs, replacement costs/conversion costs, additional testing costs and lost profit). However, any contractual penalty due shall be offset against any claim for damages asserted.
ACO reserves the right to assert the contractual penalty until the final payment.
4.4 Acceptance of the delayed delivery or service shall not constitute a waiver of the contractual penalty, or the other claims based on the Supplier's delay. A declaration of reservation by ACO according to Article 341 Section 3 of the German Civil Code (§ 341 Abs. 3 BGB) is not required.
4.5 If performance is or becomes impossible for the supplier for reasons for which the supplier is responsible, the statutory provisions shall apply.
4.6 In the event of force majeure, such as war, lockout, strike or other unforeseeable circumstances that cause significant operational disruptions, ACO is entitled to withdraw from the contract, excluding any claims for compensation by the supplier.
The same applies if the supplier is unable to meet the delivery date due to force majeure events and no agreement is reached with ACO on a new delivery date.
4.7 If insolvency proceedings are opened against the Supplier's assets or if an application for the opening of insolvency proceedings is filed and the contract has not yet been fulfilled, this shall entitle ACO to withdraw from the contract.
4.8 Early deliveries shall only be accepted by ACO upon written agreement. If the supplier delivers the products earlier than the agreed delivery date, ACO reserves the right to return the products at the expense and risk of the supplier.
If ACO does not return the products in the event of early delivery, the products shall be stored at the expense and risk of the supplier until the agreed delivery date. In the event of early delivery, ACO shall be entitled to use the agreed delivery date as the basis for calculating the payment term.
For each case of culpable deviation from delivery and packaging instructions, premature delivery or overdelivery, ACO shall be entitled to claim its additional expenses for logistics as lump-sum compensation in the amount of EUR 150 (without prejudice to the right to prove higher damages in individual cases). In any case, the supplier shall be entitled to prove that ACO has incurred no damage or less damage than this lump sum.
5. Dispatch, Passage of Risk
The specifications of section 8.2 and a precise itemization regarding the
contents of the shipment have to be indicated on all consignment notes/delivery notes and parcel address labels. Part or final deliveries have to be stated separately for the ordering party and require express approval. Should insufficient or wrong specifications either by the Supplier or their forwarder lead to wrong or incorrect handling or customs clearing the Supplier is liable for the damage or extra costs resulting thereof. The passage of risk occurs upon arrival of the delivery at the receiving station indicated by ACO. In case of machinery and technical equipment the risk is passed over to ACO not before it has confirmed the positive outcome of functional tests.
6. Notice of Defects
6.1 ACO strives to inspect incoming deliveries as quickly as possible according to the situation of a proper business procedure and to inform the Supplier about any defects in writing as soon as possible. The Supplier waives the right to object by late notice of defects in case of obvious defects, wrong deliveries, and false quantities as well as in case of the absence of an agreed or guaranteed condition.
6.2 The Supplier guarantees that the delivery item does not show any defects deteriorating its value or its fitness, has the agreed or guaranteed condition, is suitable for the usage set in the contract, and that it meets the latest state of the art, the latest regulations of German authorities, the relevant requirements regarding safety regulations, the guidelines for safety and health at work as well as all other relevant provisions of controlling institutions. In case of mechanical equipment and machine parts which are designed for use in machinery the notice period starts with commissioning of the entire system.
7. Warranty and Product Liability
7.1 The warranty period shall be 24 months as of commercial commissioning or usage, but 30 months as of delivery at the latest. If statutory regulations allow for longer warranty periods, those shall apply.
7.2 In case of defective deliveries ACO may demand free-of-charge supplementary performance of its own choice, remediation of the defect, delivery of an item without defects or manufacture of a new product, rescission of the contract as per statutory regulations or reduction of the purchase price, or compensation or replacement of useless expenditures respectively. The latter also applies in case of omitted or failed remediation or delivery respectively. ACO is entitled to perform the remedy of defects itself or have it performed by a third party at the expense of the Supplier, if this action must not be postponed or in case of default or failure of the Supplier.
7.3 If the Supplier has guaranteed the condition or service life of the delivery item, ACO can thus also assert the guaranty.
7.4 Regarding the assertion of warranty claims the Supplier waives the plea of defense of limitation over a period of 12 months after expiry of the warranty period.
7.5 If the Supplier is responsible for product damage he has to indemnify ACO upon initial request against all claims for damages by third parties. This applies insofar as the cause for the product damage lies within the Supplier's sphere of control and organization and he himself is liable in relation towards third parties. The Supplier assures to conclude or maintain product liability insurance with a sufficient limit of indemnity for the delivered goods.
8. Payment – Abandonment
8.1 Payment is only made after ACO has received the goods according to agreement as well as the proper and verifiable invoice. Deliveries which are made before the agreed date are deemed to have taken place at the agreed date of delivery.
8.2 The Supplier has to make sure that the specifications on the delivery documents correspond with the specifications on the invoice. Each invoice must state the Supplier's number assigned by ACO, the purchase order number, and the division or branch the goods are intended for.
8.3 If nothing else has been agreed the term of payment is payment not later than 14 days after the goods and invoices are received less 4 % cash discount or not later than 60 days after the goods and invoices are received net. Furthermore, the term of payment requires delivery free of defects.
8.4 Payment is made via money transfer or cheque.
8.5 The Supplier may only assign his claims to third parties if ACO has agreed to this beforehand in writing.
8.6 If a delivery is faulty in some way ACO is entitled to refuse payment to an appropriate extent until the order has been properly fulfilled.
9. Trade Secrets, Other Confidential Information, Naming as Reference
1. The order from ACO must be treated as confidential.
2. During the phase of contract initiation or during the execution of the contract, ACO may provide or disclose confidential information to the supplier as defined by the Act on the Protection of Trade Secrets (german: GeschGehG). The parties ensure the protection of the confidential information by concluding separate agreements on secrecy protection.
3. Naming ACO as a reference requires prior express and written approval from ACO. Any approval granted is valid until revoked. ACO may revoke this approval at any time without observing a specific period and without stating reasons.
10. Provision of materials
10.1 The ownership in technical documents, designs, tools, printer's copies, drawings, and other means of production etc. which are manufactured by the Supplier at the expense of ACO passes to ACO as soon as payment has been effected. Like the means of production provided by ACO they too must be treated and stored with care, insured by the Supplier against the risk of fire, dampness or floods, theft, loss and other damage and may only be made available to or used for deliveries to third parties with the prior written consent of ACO. After the order has been processed the means of production have to be handed to ACO immediately and unsolicited.
10.2 If the goods provided by ACO are inseparably combined or mixed with other items that are not the property of ACO, ACO acquires co-ownership of the new product in proportion to the value of its reserved goods (purchase price plus VAT) to the other combined or mixed items at the time of combination or mixing. If the combination or mixing takes place in such a way that the supplier's items are to be regarded as the main item, it is agreed that the supplier transfers the co-ownership proportionally to ACO; the supplier stores and keeps the sole property of ACO or the co-ownership of ACO in the name of ACO for its account.
11. Quality/Documentation
11.1 Regarding his deliveries the Supplier has to comply with the state-of- the-art technology, safety regulations as well as agreed technical specifications.
11.2 Concerning the information on the condition of the item and the guarantees the Supplier is obligated to take special records in German on the production and testing proceedings, the details of which are agreed upon between the parties separately. Sub-or prior contractors have to be put under the same respective obligations.
11.3 The Supplier is responsible for ensuring that his deliveries meet the terms of Regulation (EC) No. 1907/2006 concerning the registration, evaluation, authorization and restriction of chemicals (i.e. the latest version of the REACH regulation). Should it be required according to the terms of the REACH regulation, the substances contained in the Supplier’s products need to be pre- registered or registered at the end of the transitional period as long as the substance is not exempt from registration. The Supplier shall provide the safety datasheets required by the REACH regulation or the information required according to Article 32 of the REACH regulation, respectively. If requested by ACO, the Supplier shall also provide the information according to Article 33 of the REACH regulation.
12. Industrial Property Rights
12.1 In case the Supplier is at fault he is liable for any claim that arises if the uses of the goods in accordance with the terms of the contract lead to the infringement of industrial property rights.
12.2 If and insofar as the Supplier did not produce the delivered item according to a description supplied by ACO and the Supplier could not know, while developing the delivered item, that it would infringe industrial property rights,
the Supplier exempts ACO from any claim which arises from the use of such industrial property rights. Beyond that, the right of ACO to claim for damages remains unaffected.
12.3 At the request of ACO the Supplier will list all industrial property rights he knows of or learns of and which he uses in connection with the items delivered or to be delivered. He reassures to respect these industrial property rights.
13. Secrecy Obligation
According to the particular provisions of the German Data Protection Act (BDSG) ACO is entitled to store, transmit, revise, or delete personal data of the Supplier as part of the business connections. The Supplier is hereby informed about this according to the provisions of the German Data Protection Act (BDSG).
14. Human rights and environmental protection
The following are the Supplier´s obligations under this art 14:
14.1 The Supplier takes note of and complies with the prohibitions in regard to human rights and the environment found in section 2(2) and (3) of the German Supply Chain Due Diligence Act Lieferkettensorgfaltspflichtgesetz, hereinafter “Supply Chain Act (see German Federal Law Gazette 2021 Part I no. 46, pp. 2959 and onward – only in German; “Human Rights Expectations”) and addresses them appropriately along its supply chain. The Supplier will also note ACO’s Code of Conduct (available under www.aco.com) and assures the performance of its services to be based upon them.
14.2 The Supplier provides ACO with appropriate and necessary support in fulfilling the due diligence obligations incumbent upon ACO according to section 3 of the Supply Chain Act (“Due Diligence Obligations”).
14.3 At ACO’s request, the Supplier provides ACO with the information necessary to fulfil the “Due Diligence Obligations” while complying with applicable data protection law. This applies in particular to information regarding the Supplier and its upstream suppliers that ACO needs to conduct regular or incident-related risk assessments, to plan and implement appropriate preventative and remedial measures, to organize processes for complaints and draw up the annual report. However, the Supplier is not obliged to grant access to its business secrets or any confidential documents of any third parties towards which the Supplier is obliged to maintain confidentiality.
14.4 If ACO identifies a risk of a breach of the Human Rights Expectations designated in the first sentence of no. 14.1 during the risk assessment, the Supplier supports ACO in anchoring appropriate preventative measures at the Supplier. ACO will align its preventative measures with the results of the risk assessment on a risk-based basis. At the Supplier’s request, ACO will provide information regarding specific identified risks and their prioritization. If and to the extent that ACO offers training courses on complying with the Human Rights Expectations, the Supplier attends such training courses at ACO’s request unless the Supplier can proof that it is already conducting adequate training courses on compliance with the Human Rights Expectations in its own company.
14.5 If the Supplier violates one or more of the Human Rights Expectations or it is to be assumed that such a violation is imminent, the Supplier informs ACO of this without undue delay and supports ACO in preventing or ending this situation by taking appropriate remedial measures. If the violation of a Human Rights Expectation at the Supplier is constituted in a way that makes it impossible to end it in the foreseeable future, the Supplier supports ACO in drawing up and implementing a plan consisting of suitable remedial measures to end the violation. The plan must include a specific timetable.
14.6 If there are factual indications that make a violation of one or more Human Rights Expectations in the Supplier’s upstream supply chain (at ACO’s indirect suppliers) seem possible (sub stantiated knowledge), the Supplier must inform ACO of this without undue delay. The Supplier cooperates in the risk assessment and supports ACO in implementing appropriate preventative and remedial measures, particularly in drawing up and implementing a plan to prevent, end or mitigate any such violation.
14.7 On the basis of a risk assessment, in the event of an identified violation and even in the event of suspicion of a violation of compliance with the Human Rights Expectations, ACO is entitled to verification by means of an audit on the Supplier’s premises. Such an audit will be conducted during regular business hours after an appropriate amount of advance notice and in compliance with applicable law, particularly in regard to data protection and competition law. The Supplier is not obliged to grant access to its business secrets or any confidential documents of any third parties towards which the Supplier is obliged to maintain confidentiality.
14.8 ACO reserves the right to end its business relationship with the Supplier if the Supplier commits a serious violation of one of the Human Rights Expectations, implementing the measures in the plan described under no. 14.5 has not remedied the situation by expiry of the time set in the plan and no other milder means with the same effect are available to ACO. The same applies if the Supplier refuses to support ACO in fulfilling the Due Diligence Obligations. In this respect, no. 14.9 remains unaffected.
14.9 The Supplier is entitled to refuse to provide any act of support to ACO that would constitute an excessive demand on the Supplier. This can be the case, for example, if the Supplier does not have the necessary resources despite all reasonable efforts. By two weeks after receipt of the request for support, the Supplier must provide ACO with suitable proof of the reasons why the request is excessive. This does not apply in the event of a serious violation of a Human Rights Expectation.
14.10 If and to the extent that the Supplier culpably violates one of its obligations designated above under nos. 14.2 to 14.7, the Supplier shall indemnify ACO against all third-party claims, official fines and the costs of officially ordered measures and/or court costs and other liabilities if and to the extent that they are asserted against ACO due to such violation of obligation.
15. General Provisions
15.1 All purchase orders/contracts are subject to German law, even if ACO buys goods from abroad. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
15.2 The place of jurisdiction is to be the locally competent court at the location of ACO. ACO may take legal action against the Supplier at his place of business.
15.3 Should any of the provisions be wholly or partially held invalid, the validity of the remaining provisions or parts thereof shall not be affected, if the inapplicable provision does not endanger the aspired business success of ACO. Any invalid provision is to be replaced by one which corresponds to or comes closest in spirit and purpose to that of the invalid provision.
15.4 Customary trade terms shall be interpreted in accordance with the Incoterms effective at the particular time.