Terms and Conditions of Purchasing

1. Applicability

1.1. The following terms and conditions shall apply to all contractual relationships between M&C TechGroup Germany GmbH (hereinafter: “M&C“) and its suppliers. M&C does not and will not accept terms and conditions of suppliers which are different from the terms and conditions set forth herein. Any deviation from the following stipulations shall only be valid if individually agreed to by M&C in writing.

1.2. If there is a framework agreement in place between M&C and the supplier, these terms and conditions shall apply to both, the framework agreement and the individual purchase contracts.

2. Prices, Shipment & Packaging

2.1. The prices agreed are fixed and they exclude additional charges of whatever kind made by the supplier.

2.2. The supplier ́s reservation to increase his prices shall only be valid if agreed to by M&C in writing.

2.3. M&C shall bear the costs of packaging materials actually used up to the maximum cost price of the supplier, unless otherwise agreed.

2.4. Notifications of dispatch, bills of lading, delivery notes and all other documents and/or correspondence accompanying the goods shipped, shall clearly reveal the number of the respective M&C order.

2.5. The supplier shall take back packaging materials in accordance with applicable law. The products shipped must be packed in such a manner that damage in the course of shipment will be avoided to the maximum extent. Packaging materials shall only be used to the extent reasonably necessary to avoid damage during shipment.

3. Payment Terms & Default

3.1. M&C shall balance the supplier ́s invoices within 14 days with a cash discount of 3 per cent or within 30 days without discount.

3.2. Payment terms and terms for cash discount shall begin as of receipt of the respective invoice by M&C, but no earlier  than the day on which the invoiced products have arrived at M&C’s premises or, in the case of services requiring acceptance, not before their acceptance and, if documentation or similar documents belong to the scope of delivery, not before their contractual handover to M&C. M&C commits itself to examine supplies and/or services requiring acceptance regarding their compliance with the contractual agreements within a reasonable period of time and to draw up an acceptance report and to send it to the supplier.

3.3. Payments can, at M&C ́s discretion, be made by bank transfer (as a rule) or by cheque.

3.4. M&C shall at all times be entitled to exercise rights of retention and/or rights of set‑off that it may have against the supplier.

3.5. The supplier shall not be entitled to exercise rights of retention or rights of set‑off that it may have against M&C, unless M&C has acknowledged his respective claims in writing or if such rights have been acknowledged in a final and binding judgement by a court of law.

4. Term & Scope of Supply

4.1. Agreed time limits or dates for the supply of goods shall always be binding; where the supplier faces delay or has reason to expect a delay in supply, he shall notify M&C thereof as soon as possible.

4.2. In the event of a delay in delivery, M&C is entitled to all remedies provided by applicable law. In particular, M&C may withdraw from the contract and claim damages in lieu of performance after the futile expiry of a reasonable pe-riod of grace. If M&C claims damages, the supplier shall be entitled to prove that he is not responsible for the delay.

4.3. Partial deliveries shall only be permitted with the prior written approval of M&C. Excess or shortfall deliveries shall only be admissible within the normal scope of business and only with regard to products for which this cannot be avoided in terms of product technology.

5. Items Used for the Performance of M&C's Order

Molds, models, tools, lithographies, clichés etc. that the supplier manufactures or purchases for the purpose of performing M&C’s order, shall become the property of M&C upon payment and shall also be handed over to M&C without special request.

6. Confidentiality

The supplier shall keep in strict confidence all images, drawings, calculations and other documents, data and information received from M&C and such items shall only be disclosed with the express written consent of M&C if there is a need to do so. This confidentiality obligations shall survive the term of the contract and shall only terminate when the respective information has become public knowledge.

7. Materials Provided & Retention of Title

7.1. M&C reserves the ownership of all materials, parts and components (including tools) provided to the supplier. The parts, components and tools provided by M&C serve exclusively the purpose of processing and fulfilling the order entered into with M&C. In particular, any form of use for or transfer to third parties - even as a loan - or resale is expressly prohibited.

7.2. Any processing or reworking carried out by the supplier shall occur exclusively for and on behalf of M&C. M&C reserves its right of ownership also with respect to the results of reworking and/or processing. If and to the extent the supplier combines goods that are owned by M&C with third parties' goods, M&C shall become a co‑owner of the new thus generated product at a percentage which reflects the proportion of the value of the M&C goods and of the third party goods at the moment when the production occured. If the value of the components contributed by the supplier is, in proportion to M&C’s components, be regarded as the main item so that under applicable law, the supplier is deemed to have become the owner of the final product, the supplier shall establish co‑ownership in favour of M&C. Where the supplier has possession of goods owned or co‑owned by M&C, he shall keep such goods in safe custody on behalf of M&C.

8. Supplier's Retention of Title Rights

8.1. Where the supplier reserves retention of title to goods sold and delivered to M&C, title to such goods shall automatically pass to M&C upon payment. Any retention of title right exceeding the scope of a simple retention of title (such as extended or overall reservation of title or current account or group retentions of ownership including  “all sums due“ clauses) shall not be accepted and thus be void.

8.2. The supplier may only demand return of the goods if he rescinds the contract.

9. Limitations & Exclusions of Liability

Any limitations and/or exclusions of supplier's liability shall be void.

10. Warranty and Guarantees

10.1. The supplier shall guarantee the durability of the products supplied (in accordance with the provisions of § 443 of the German Civil Code referring to the freedom from material defects and defects of title) for a term of 24 months from the day of the passing of the risk to M&C.

10.2. Notices of defects in accordance with § 377 of the German Commercial Code shall under all circumstances be deemed as given in due time if they are received by the supplier within 5 working days following receipt of the goods by M&C or, in case of hidden defects, within 5 working days after detection of the fault by M&C.

10.3. The supplier shall indemnify and hold harmless M&C from all claims raised by domestic or foreign third parties, based upon the allegation that products supplied to M&C infringe upon national or foreign patents, utility models, designs, intellectual property rights or similar rights. Such indemnification shall include all costs, expenditures etc. that M&C will have to bear as a consequence of such third party's claim.

10.4. The supplier shall bear responsibility that all products and services supplied by him are free of defects, that they comply, in all respects, with M&C's requirements and that they are suitable for the intended use.

11. Certificates, Declarations and Conformities

11.1. The supplier shall bear sole responsibility and thus guarantee that all goods and services supplied (including those of pre‑suppliers and sub‑contractors) shall be in compliance with the latest state of the art, the relevant legal requirements, applicable norms, rules, standards, regulations, directives etc. of any competent authority, public body, employers' liability insurance, professional associations and such. This shall in particular apply to the following directives in their most recent versions, or in the version of any directives or any standards which may replace them  (including their national implementations):

  • ATEX Directive 2014/34/EU
  • “Machinery Directive“ 2006/42/EC
  • Electromagnetic Compatibility Directive 2014/30/EU
  • Low Voltage Directive 2014/35/EU
  • “REACH“-Directive 1907/2006/EC
     

If in certain situations and as an exception, deviations from such directives etc. should be or become necessary, the supplier must obtain M&C's prior written approval. Such approval shall in no way exclude or modify the suppliers' liability for defects.

11.2. The supplier is responsible for ensuring that all products supplied by him comply with the limit values of the Directive on the Restriction of Hazardous Substances 2011/65/EU in conjunction with 2015/863/EU (RoHS3) and its amendments at the time of delivery.

11.3. The supplier shall deliver the relevant safety data sheets to M&C together with the respective products. He shall indemnify M&C from all third party claims that may be raised because the required safety data sheets have not been delivered in a timely manner or if they are faulty. If the respective security data sheets are modified or revised after supply, the supplier shall advise M&C thereof without delay.

11.4. If and to the extent M&C needs certain certificates and/or declarations in order to resell the products purchased, such as certificates of quality, declarations of conformity and/or long‑term suppliers' declarations, M&C will advise the supplier of such necessity and the supplier shall thereupon deliver the required documents in their most recent version to M&C at his earliest convenience.

12. Code of Conduct

The supplier commits itself to observe and comply with the Code of Conduct of M&C which can be viewed and read here.

13. Place of Performance, Legal Venue and Applicable Law

13.1. Unless otherwise stipulated in the respective order, place of performance for all supplies, services and claims resulting from the respective contract and its performance shall be the registered place of business of M&C.

13.2. If the supplier is a commercial entity, a public authority or a public body, then exclusive legal venue shall vest in the courts having jurisdiction over M&C's registered place of business. M&C shall, at its discretion, be entitled to alternatively bring legal action against the supplier before a court of law having jurisdiction over supplier's place of business.

13.3. The legal relationship between the supplier and M&C shall exclusively be governed by German law.

  As of 03/2019