§ 1 General – Scope of Application

(1) These General Terms and Conditions of Purchase apply exclusively to all business transactions of OMAG Maschinenbau GmbH with suppliers or other contractors (hereinafter collectively referred to as “suppliers”). We hereby explicitly reject any conflicting sales and delivery conditions or other terms of business of the supplier. These will not apply, even if they contain provisions beyond the scope of these purchase terms. Our purchase terms apply even if we accept and pay for the supplier’s delivery or service unconditionally while being aware of conditions that conflict with or deviate from our purchase terms.

(2) All agreements made between us and the supplier to fulfil the contract must be confirmed in writing to be effective.

(3) Our purchase terms apply only to businesses within the meaning of § 310 para. 1 BGB (German Civil Code).

(4) Our purchase terms also apply to all future transactions with the supplier. We reserve the right to modify these terms for the entire future business relationship with the supplier following prior notice. This notification will be in writing. If the supplier does not object to the changes within six weeks of receiving the notification, the amended terms will be deemed accepted. We will notify the supplier of this legal consequence in the notification.

(5) If a framework agreement exists between the supplier and us, these purchase terms apply to both the framework agreement and individual orders unless otherwise agreed in the respective framework contract.

(6) If any provision of these terms is or becomes invalid, the validity of the remaining contract provisions will not be affected. The invalid provision will be replaced by statutory provisions. Under no circumstances will the invalid provision be replaced by the supplier’s terms and conditions.

§ 2 Orders – Order Documents

(1) An order is deemed issued only when it is made in writing (including by fax or email). Oral or telephonic orders are binding only if subsequently confirmed in writing. Inquiries by us are non-binding and subject to confirmation.

(2) The supplier must accept our order within two weeks.

(3) By accepting the order, the supplier acknowledges that they have reviewed the nature and scope of the performance through the documents provided. Any evident errors, typographical, or calculation errors in the documents provided by us do not constitute binding obligations. The supplier must notify us of such errors for the correction of the order. This also applies to missing documents.

(4) By accepting the order, the supplier agrees to comply with external company regulations for behavior on our premises or facilities necessary for the execution of the order. The supplier must sign relevant guidelines upon entering our premises or facilities, if such guidelines exist.

§ 3 Prices – Invoices – Payment Terms – Assignment 

(1) The price specified in the order is binding. All prices are net prices plus statutory VAT. Additional costs such as customs duties, insurance premiums, and similar expenses are borne by the supplier.

(2) Unless otherwise agreed in writing, the price includes delivery “free domicile” and packaging. If, by written agreement, we exceptionally bear shipping costs, the supplier must choose the shipping method specified by us or the most cost-effective method available. Shipments from the supplier to us marked “ex-works” must exclusively use our designated house carrier, whose address is indicated in our order footnotes. This applies to all collective, partial, or full loads, which must be marked with precise delivery addresses and unloading points. Failure to adhere to this delivery policy may result in additional costs being charged to the supplier.

(3) We can process invoices only if they include the order number and the buyer’s name as specified in our order. Invoices must be submitted in paper or electronic form. If the supplier fails to include the required details, we reserve the right to return the invoice unprocessed at the supplier’s expense. The supplier is liable for any resulting consequences unless they prove they are not responsible. Additionally, invoices must comply with VAT law requirements.

(4) Unless otherwise agreed in writing, and provided no counterclaims exist, we will pay the purchase price within 14 days of delivery and proper invoicing with a 3% discount or within 60 days net. The discount period starts from receipt of the correct invoice. Incorrect invoices or those missing required details are
considered received only after correction. Payment is deemed made on the day our bank receives the transfer order.

(5) If the contract involves performance of work, acceptance replaces delivery.

(6) We are entitled to statutory rights of offset and retention.

§ 4 Delivery Dates – Delivery and Performance

(1) The delivery date specified in the order is binding.

(2) We are not obligated to accept goods before the delivery date. In the case of early delivery, we may return the goods or store them at the supplier’s expense and risk.

(3) The supplier must promptly notify us in writing if circumstances arise or become apparent that may prevent adherence to the agreed delivery date.

(4) If the supplier is in default due to reasons, they are responsible for, we may charge a penalty of 0.1% of the agreed price per calendar day of delay, up to a maximum of 5% of the order value (excluding VAT). Further damage claims remain unaffected. The supplier may offset the penalty only against legally established or acknowledged counterclaims. We may claim the penalty until payment to the supplier for the delayed delivery.

(5) The supplier must ensure, at their own expense, that there are no impediments to the proper and timely execution of the work shortly before performance. Any defects or obstacles not within the supplier’s scope of work must be reported to us at least three working days in advance. Any additional costs due to late defect notification or resulting additional efforts are borne by the supplier.

(6) Further statutory claims, such as withdrawal or damages in lieu of performance, remain unaffected.

(7) When performing deliveries or services on our premises, the supplier must adhere to the applicable safety, environmental, and fire protection regulations.

§ 5 Transfer of Risk – Documents

(1) Unless otherwise agreed in writing, delivery shall be “free domicile.”

(2) Regardless of the agreed price conditions, the risk passes to us upon receipt at the delivery address specified by us for deliveries without installation or assembly. For deliveries with installation or assembly, the risk transfers to us upon successful completion of acceptance. Neither commissioning nor usage constitutes acceptance.

(3) Deliveries of drawing-based components must include the following documents: original drawings, specifications, or parts lists. Otherwise, the delivery is deemed incomplete. For multiple deliveries of identical parts, corresponding copies must be attached.

(4) The supplier is obligated to state our order number, order position, part name, identification number, and order reference on all shipping documents and delivery notes. Failure to do so may result in processing delays, which are not attributable to us.

§ 6 Inspection for Defects – Warranty – Defect Liability – Quality Assurance – REACH

(1) We are obligated to inspect the goods within a reasonable period for any apparent quality or quantity deviations. Complaints are deemed timely if made within 15 calendar days after receipt of goods or, for hidden defects, after discovery. Hidden defects will be reported as soon as they are identified during the normal course of business. Otherwise, § 377 HGB (German Commercial Code) does not apply.

(2) The delivered goods must be free of defects, conform to the specifications provided by us, be developed and manufactured in accordance with the latest technical standards, and be fully suitable for the intended contractual use. The goods must comply with applicable legal and regulatory safety requirements in the Federal Republic of Germany. The supplier guarantees to perform a final inspection to ensure compliance with material, drawing, and standard specifications before delivery.

(3) We retain all statutory defect claims. In particular, we may demand, at our discretion, either rectification of the defect or delivery of a new item. The right to claim damages, especially in lieu of performance, remains explicitly reserved.

(4) If the supplier repeatedly provides defective or late deliveries or services after a written warning, we may immediately withdraw from the contract. This right of withdrawal also extends to any future obligations the supplier may have under this or other agreements.

(5) In cases of urgency or imminent danger, we may rectify defects ourselves at the supplier’s expense.

(6) The limitation period for claims related to material and legal defects is three years, starting from the delivery or acceptance of the goods. For software installation and report preparation, the limitation period is four years, starting at the end of the calendar year in which delivery/acceptance occurred. The limitation period for spare parts ordered simultaneously with the main item begins upon proper commissioning and ends no later than three years after delivery unless delivered with the main item. For repaired or replaced items, the limitation period restarts after the repair or replacement is completed. Longer statutory limitation periods remain unaffected.

(7) If the order involves the production of cast parts, the supplier must verify the conformity of the model and drawing and guarantee the technical feasibility of the casting. Objections due to defective design are excluded.

(8) The supplier must implement consistent quality assurance measures, including suitable checks and controls before shipping. These measures must be documented. We reserve the right to verify the supplier’s quality assurance processes on-site, including at their subcontractors. We may also conclude a quality assurance agreement with the supplier.

(9) The supplier guarantees compliance with the EU regulations (EC) 1907/2006 (“REACH”) and (EC) 1272/2008 (“CLP Regulation”). This includes registration, information duties under REACH, and compliance with the CLP Regulation for classification, labeling, and packaging. The supplier must provide safety data sheets free of charge upon request and deliver updated versions as required. Non-compliance may result in liability claims, for which the supplier indemnifies us in advance.

§ 7 Product Liability – Indemnification – Insurance Coverage

(1) The supplier shall indemnify us against all claims for damages asserted by third parties based on the regulations governing tort liability, product liability, or other legal provisions due to defects or faults in goods manufactured or delivered by us or the supplier, provided such claims would also be valid against the supplier or have become invalid solely due to the statute of limitations. Under these circumstances, the supplier shall also indemnify us against the costs of legal disputes arising from such claims brought against us.
If the claims asserted against us are valid or have only become invalid due to the statute of limitations, we are entitled to a proportional indemnification claim against the supplier, the extent of which shall be determined according to § 254 BGB (German Civil Code).
Our rights to indemnification, reimbursement of expenses, and claims for damages under §§ 437 no. 3, 478, 634 no. 4 BGB remain unaffected by the aforementioned provisions.

(2) As part of their liability for damages under paragraph (1), the supplier is also obligated to reimburse expenses under §§ 683, 670 BGB, as well as §§ 830, 840, 426 BGB, incurred by us as a result of or in connection with a product recall conducted by us. We will inform the supplier about the content and scope of the recall measures, as far as possible and reasonable, and give them the opportunity to comment. Other statutory claims remain unaffected.

(3) The supplier commits to maintaining product liability insurance with a coverage amount of €5 million per personal injury/property damage incident (aggregate) and must provide proof of this insurance upon request. Any additional claims for damages to which we are entitled remain unaffected.

(4) If we should have detected a defect attributable to the supplier and/or undertaken measures to prevent damages, only intentional misconduct and/or gross negligence on the part of our executives, employees, or agents shall be attributable to us in relation to the supplier.

(5) The supplier waives the right to assert claims for recourse against us in connection with product or producer liability. This waiver does not apply in cases of intent, gross negligence, or negligent breach of essential contractual obligations on our part, nor does it apply to intentional or negligent injury to life, body, or health caused by us.

§ 8 Intellectual Property Rights

(1) The supplier guarantees that no third-party rights are infringed in connection with their delivery.

(2) If we are held liable by a third party for such infringements, the supplier must indemnify us upon first written demand.

(3) The indemnification includes all expenses incurred by us due to the third-party claim.

(4) The limitation period for such claims is ten years from the contract’s conclusion.

§ 9 Retention of Title by the Supplier

(1) Retention of title by the supplier is excluded for goods that, due to their nature or intended use, must be sold promptly by us. Ownership transfers to us upon delivery at our site.

(2) Provisions for extended or expanded retention of title in the supplier’s general terms and conditions, order confirmations, delivery notes, or invoices are invalid without explicit objection on our part.

§ 10 Provision of Materials

(1) If we provide materials to the supplier, we retain ownership. Processing or transformation by the supplier is done on our behalf. In case of mixing with third-party goods, we acquire co-ownership proportional to the value of the provided and other goods.

(2) If mixing results in an inseparable combination where the supplier’s item is predominant, co-ownership is transferred to us.

(3) We will release security rights exceeding the unpaid goods’ value by more than 10%.

§ 11 Models, Drawings, Samples, Tools

(1) All models, drawings, calculations, and documents remain our property and may not be shared with third parties without our explicit consent. They must be returned upon order completion.

(2) Tools provided by us remain our property and must be used exclusively for our orders. The supplier must maintain these tools at their expense and insure them against damages.

(3) If subcontractors produce tools or samples, claims against these subcontractors are assigned to us.

§ 12 Confidentiality

(1) The supplier is obligated to keep strictly confidential all illustrations, drawings, calculations, and other documents and information received from us. Disclosure to third parties is permitted only with our prior consent. This confidentiality obligation remains in effect even after the conclusion of this contract.
The supplier is not bound by confidentiality, or the obligation ceases to apply, if the illustrations, drawings, calculations, and other documents provided were publicly known at the time they were handed over to the supplier. Should the documents and information become publicly known at a later time, the confidentiality obligation ceases with their public disclosure. The confidentiality obligation also ceases if the documents/information are lawfully disclosed to the supplier by a third party or if the supplier is required to disclose them due to a judicial or official order.

(2) If the supplier breaches their confidentiality obligation, they are required to pay us a reasonable contractual penalty for each breach, which we shall determine at our reasonable discretion. Both the supplier and we are entitled to request that the competent court review the amount of the contractual penalty.

§ 13 Environmental Management

The supplier commits to applying the environmental management principles of the relevant standards, such as DIN EN ISO 14001 or EMAS, in the execution of their deliveries and services. Deliveries and services must always be environmentally friendly and recyclable, and the use of prohibited substances is not allowed. The supplier guarantees compliance with all environmental laws and regulations applicable to the procurement and/or manufacture of the delivery items.

§ 14 Assignment

The assignment of claims by the supplier arising from the contractual relationship with us is not permitted without our prior written consent. In the event that the supplier has assigned a counterclaim against us to a third party, we are entitled to make payment with discharging effect to the supplier via the third party.

§ 15 Applicable Law – Jurisdiction – Place of Performance

(1) This contractual relationship is governed exclusively by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG), even if the supplier’s registered office is located abroad or the delivery is made from abroad.

(2) The exclusive place of jurisdiction is Emden, provided the supplier is a merchant, a legal entity under public law, or a special fund under public law. However, we also reserve the right to bring legal action against the supplier in the court of their registered office.

(3) Unless otherwise stated in the order, the place of performance is Emden.

Version: May 2017