Conditions of purchase
These conditions of purchase shall apply for all purchase orders issued now or in the future by the business unit -Production- of our company, hereinafter referred to as SWG-PRODUCTION, unless different conditions are applied or agreed in individual cases.
The general terms and conditions of business of the supplier shall apply only to the extent that they have been explicitly agreed to by SWG-PRODUCTION in writing. These conditions of purchase shall apply also in the case that SWG-PRODUCTION accepts a delivery without reservation while in awareness of terms and conditions of the supplier contrary to or diverging from SWG-PRODUCTION’s conditions of purchase.
Deliveries for which written purchase orders are not available will not be accepted.
Our purchase orders are only binding on us when they were issued by us with an order number.
3 Obligation to inform
The supplier is obligated to inform SWG-PRODUCTION in a timely manner of all changes to manufacturing processes, materials or vendor parts for products or changes to services, relocation of production facilities, and additionally changes to procedures or facilities for testing of parts or other quality assurance measures in order that SWG-PRODUCTION can establish whether the changes have a negative impact on the product.
All documentation supplied by SWG-PRODUCTION including drawings and sketches as well as samples are exclusively the property of SWG-PRODUCTION. The supplier shall not disclose these items to third parties, shall use the documents and samples solely for the purpose of filling this order, shall not copy the documents, shall handle and store the documents and samples with due care and return them to SWG-PRODUCTION in full without delay on completion. In particular, after completion of this order, the supplier will maintain strict confidentially in respect of all production procedures made known to him by SWG-PRODUCTION and shall not use them for his own production or for deliveries to SWG-PRODUCTION’s competitors. SWG-PRODUCTION retains all rights in respect of new features that originate at SWG-PRODUCTION, in particular, for the case of granting of patent or registration as a utility model.
Products manufactured on the basis of materials such as drawings, models or the like designed by SWG-PRODUCTION or of confidential information supplied by SWG-PRODUCTION may not be used by the supplier himself nor may they be offered or delivered by third parties.
5 Transfer of risk, Place of performance
Up until arrival of the goods at the location designated by SWG-PRODUCTION as delivery destination, risk remains with the supplier without exception. As a basic principle, transfer of risk to SWG-PRODUCTION occurs at the point of handing over of the goods to the receiving agent designated by SWG-PRODUCTION.
Delivery within Germany is effected to the location specified in the order. The specified destination is also the place of performance. If no place of performance is agreed explicitly, it shall be deemed to be Waldenburg.
6 Transfer of title
After payment for the goods is effected, title for them transfers immediately to SWG-PRODUCTION.
7 Prices, payments
The prices applicable on the delivery date as agreed at the time of ordering are binding. Unless agreed specifically and in writing otherwise, prices are inclusive of delivery and packaging and transport materials.
Suppliers must make written notification of price increases three (3) months to the beginning of a quarter in advance. Such an announcement does not automatically imply acceptance of the demand.
The conditions of payment printed on the order form shall apply.
If certification of material tests has been agreed, this shall be forwarded to the purchaser together with the shipment. The payment period does not begin before the agreed certification is received.
8.1 Delivery deadline, compensation
The delivery date specified by SWG-PRODUCTION on the order form is binding. The supplier commits to meeting the delivery deadline agreed.
As soon as any impending failure to meet the delivery schedule becomes apparent, the supplier shall inform SWG-PRODUCTION accordingly without delay stating the reasons and the estimated duration of the delay.
When the supplier fails to meet agreed delivery dates for whatever reason, SWG-PRODUCTION is entitled, without prejudice to additional claims under statutory provisions and at its sole discretion, to withdraw from the contract and obtain replacement from a third party and/or to claim compensation for damages due to non-fulfilment. Specification of a period of grace for delivery with notice of intention to reject goods delivered later is not required. The supplier shall compensate for all costs caused by late delivery. Acceptance of a late delivery does not prejudice claims for compensation
Deliveries prior to the agreed delivery date shall be made only with the express approval of SWG-PRODUCTION. SWG-PRODUCTION reserves the right to return goods delivered early or to adjust the value date for the corresponding invoice.
8.2 Delivery quantity
Partial deliveries are permissible only if we have given express written approval. Excess deliveries of up to 10% are permissible.
9 Delivery slips/invoices
Every shipment shall be accompanied by a delivery slip. All shipping documents together with any other contractually relevant documents shall bear, in addition to the designation of the item, the material number, order number, position number on the order, date of order, quantity and packing type.
The basis for payment shall be the actual quantities, weights or other units specified for the delivery together with the agreed prices.
10 Origin of goods, Preference regulations in international trade
For all items delivered by him to SWG-PRODUCTION, the supplier shall present a long-term supplier's declaration confirming the preferential originating status of the goods ("Goods with EU preferential origin status" or "Goods without EU preferential origin status". If this commitment is not met or if the declarations are incorrectly issued, the supplier shall be liable for all losses suffered by SWG-PRODUCTION in consequence.
The supplier shall assess his products as to whether they are subject to bans, restrictions or authorisation requirements in international trade (e.g. with respect to the export control list, the Dual-Use Regulation, US Re-export regulations, etc.) and where this is the case, to make corresponding, comprehensible and unambiguous declarations on all tenders, order confirmations and documentation accompanying the goods.
If this commitment is not met, the supplier shall be liable for any losses incurred by SWG-PRODUCTION as a result, including additional claims for foreign customs duties, penalties and the like.
Designations of origin: D = third country / E = EU / F = EFTA
11 Warranty, safety requirements, quality assurance
Unless otherwise specified in the following, the statutory provisions shall apply in the case of material defects or defects in title (including incorrect or short deliveries, improper installation and inadequate installation, operating or user guides) as well as all other breaches of duty by the supplier.
In accordance with statutory regulations, the supplier is liable for ensuring that the goods have the contractually agreed quality at the point of transfer of risk to SWG-PRODUCTION. The contractually agreed quality is in any event defined by product descriptions that, in particular, by virtue of having been specified or referred to in the order constitute part of the contract or have otherwise been included in it in a similar way to these Conditions of Purchase. It is immaterial whether the product description originates with SWG-PRODUCTION or with the supplier.
By way of derogation from § 442 Para. 1 S 2 German Civil Code (BGB), SWG-PRODUCTION retains all rights to claim for damages without restriction in the case where the defect remained unknown to SWG-PRODUCTION at the time the contract was concluded due to gross negligence on its part.
The statutory provisions of §§ 377, 381 of the German Commercial Code (HGB) concerning a merchant’s obligations in respect of inspection and notification shall apply with the following proviso: SWG-PRODUCTION’s obligation to inspect is restricted to defects that become apparent during visual incoming goods inspection including the delivery slip as well as during quality control by sampling (e.g. transport damage, incorrect or short delivery). If an acceptance procedure has been agreed, there is no obligation to inspect. In addition, it is important to give due consideration to whether inspection corresponds to appropriate business practice in the light of the circumstances in a particular case.
The obligation to notify defects which only become apparent later remains unaffected.
If the supplier does not meet his obligation of supplementary performance – at the discretion of SWG-PRODUCTION through elimination of the defect (remedy) or delivery of a defect-free product (replacement) – within the reasonable period of grace specified by SWG-PRODUCTION, SWG-PRODUCTION can eliminate the defect itself and demand compensation for the expenditures required or a corresponding credit. If supplementary performance by the supplier is unsuccessful or for SWG-PRODUCTION unreasonable (e.g. due to particular urgency, risk to plant safety or the imminent threat of disproportionate burden) setting of a period of grace is not mandatory; the supplier shall be informed without delay and if at all possible, in advance.
Further, in accordance with statutory provisions, SWG-PRODUCTION is entitled in the case of material defects and defects of title to reduce the purchase price or withdraw from the contract. Additionally, again in accordance with statutory regulations, SWG-PRODUCTION is entitled to compensation for losses suffered and expenditures made.
The supplier shall have due regard to accepted technical practice and current, applicable statutory and official regulations (in particular: DIN, VDE, VDI and DVGW). The goods must be in compliance with all relevant statutory and official requirements applicable on the day of delivery, including those included in the Machine Safety Code and in environmental protection law as well as satisfying the applicable occupational safety regulations. If the subject of delivery is a hazardous substance in the sense of the German Ordinance on Hazardous Substances (GefStoffV) or a product during whose use the release of such substances cannot be excluded, the supplier shall without further request furnish SWG-PRODUCTION or its nominated agent with all data necessary to enable completion of the EG Safety Data Sheet (§14 GefStoffV).
The supplier shall perform quality assurance procedures appropriate in form and scope and corresponding to the technical state-of-the-art and shall demonstrate same to the purchaser upon request.
12 Intellectual property rights
In the case of a culpable violation of intellectual property rights, the supplier shall indemnify SWG-PRODUCTION and its respective customers against claims by third parties deriving from violation of copyright, trademarks or patents unless the design of the subject of delivery was provided by SWG-PRODUCTION.
13 Product liability
The supplier shall indemnify SWG-PRODUCTION against all claims on the basis of product liability deriving from a defect in product delivered by him.
Furthermore, the supplier shall be liable for losses suffered by SWG-PRODUCTION on account of reasonable preventative measures (e.g. public advertising measures) taken to avoid non-contractual liability for something rightly ascribable to the supplier
The supplier shall conclude adequate insurance against claims on him arising from product liability and shall maintain same for the duration of the contractual relationship with SWG-PRODUCTION; upon request he shall demonstrate the corresponding insurance by presenting the policy document.
14 Force majeure
Strike, lock-out, disruption to operations, official injunction and other cases for which SWG-PRODUCTION cannot be held responsible and which result in a reduction in demand shall be considered force majeure and shall entitle SWG-PRODUCTION to withdraw from the contract.
15 Prohibition of child labour
The supplier shall not employ children. The supplier shall ensure that none of his suppliers employ children either. Children in this context shall be understood to be all persons younger than 15 years of age. Exceptionally, children of 14 years of age may be employed, providing that the legal minimum working age is 14 in the country concerned.
16 Environmental protection
The supplier shall guarantee that products delivered by him do not contain substances included in the so-called candidate list according to Art. 59 (1, 10) of the EG Ordinance 1907/2006 ("REACH").
The supplier commits to informing SWG-PRODUCTION in writing without delay if for whatever reason, products delivered by him contain substances on the candidate list; this applies in particular in the case that the candidate list is extended or supplemented. The supplier shall specify the individual substances by name together with an estimate of the percentage by weight, which is as accurate as possible.
SWG-PRODUCTION is not obligated to accept products which contain substances on the candidate list.
17 Severability clause
In the event that one of the foregoing, agreed clauses becomes wholly or partially invalid, the validity of the remaining conditions of purchase shall be unaffected. The parties agree to replace the invalid provision with a valid one as similar as possible in terms and intent.
18 Court of jurisdiction
Provided the supplier is a merchant in a legal sense or is a legal entity under public law, the venue of jurisdiction in all disputes arising from the purchase orders and deliveries shall be Heilbronn.
We reserve the right to take legal action against the supplier elsewhere.
The law of the Federal Republic of Germany shall apply; the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) are excluded.
General terms and conditions of sale, of delivery and of payment
1 General provisions / Applicability
1.1 The scope of deliveries and services to be provided by SWG-PRODUCTION is determined by mutual declarations in writing together with the terms and conditions of business which follow.
1.2 SWG-PRODUCTION does not recognize or accept terms and conditions of the contractual partner that are contrary to or deviate from SWG-PRODUCTION’s own conditions of sale unless SWG-PRODUCTION has explicitly agreed in writing to their applicability. The terms and conditions of sale of SWG-PRODUCTION shall apply also in the case that SWG-PRODUCTION executes delivery without reservation while in awareness of terms and conditions of the contractual party contrary to or diverging from SWG-PRODUCTION’s own conditions of sale.
1.3 The general terms and conditions of sale shall also apply for all future contracts with the contractual partner.
2.1 Tenders supplied by SWG PRODUCTION are non-binding and subject to change. Declarations of acceptance and orders are legally valid only after confirmation by SWG-PRODUCTION in writing.
2.2 SWG-PRODUCTION reserves title and copyright in respect of illustrations, drawings, calculations and other materials. Transmission of such materials to third parties by the contractual partner requires explicit, written consent from SWG-PRODUCTION.
3 Prices and conditions of payment
3.1 Unless otherwise agreed, SWG-PRODUCTION prices are quoted ex works, including packaging, duty unpaid and excluding the applicable value-added tax. Transport aids will be invoiced.
3.2 Minimum order quantities: Unless otherwise agreed, individual order items should have a value not less than €250 (net of VAT). If the value of an order item is less, the quantity for the item will be increased until €250 is reached. In this connection, the packaging unit of the item in question must be taken into consideration, which may result in a value in excess of €250.
This minimum order value yet is only valid for items we carry in stock. With regard to production items the minimum value is significantly higher and a request for quotation has to be made in each individual case.
3.3 The date of delivery to or storage on behalf of the contractual partner is decisive in respect of invoicing. Unless otherwise agreed in the confirmation of order, the invoice amount is due and payable strictly net within 30 days of the date of the invoice. The statutory regulations applicable in the case of delayed payment shall apply.
3.4 The contractual partner shall only be entitled to offset payments against counterclaims if said claims are uncontested or legally established. The contractual partner is only entitled to exercise a right to withhold payment where his counterclaim derives from the same contractual relationship.
3.5 If the agreed delivery date is more than one (1) month after conclusion of the contract, SWG-PRODUCTION is entitled to invoice at the rates contained in the price list applicable on the day of delivery. In the event of an increase in the price of the necessary raw materials of 5% or more since the order was placed, SWG-PRODUCTION reserves the right to invoice the contractual partner for the corresponding price increment.
4 Production period and delivery date
4.1 Unless explicitly agreed otherwise in writing, all deadlines and durations nominated by SWG-PRODUCTION are non-binding. In addition, commencement of the delivery schedule provided by SWG-PRODUCTION presupposes the clarification of all technical issues as well as the timely and proper fulfilment by the contractual partner of his obligations.
4.2 If the contractual partner falls into default of acceptance or is culpably in violation of his contractual obligations to provide support, the risk of accidental loss or deterioration of the goods passes to the contractual partner at the time he falls into default of acceptance or payment. In this case SWG-PRODUCTION is entitled to demand compensation for losses suffered.
4.3 SWG-PRODUCTION is entitled to make partial deliveries in so far as these are reasonable for the contractual partner.
4.4 SWG-PRODUCTION is entitled to deliver quantities varying by up to 10% from the agreed amount and to invoice for them.
4.5 If SWG-PRODUCTION falls into default of delivery for reasons for which it is responsible and in as far as the contractual partner demonstrates that he suffered losses in consequence of this, the latter shall be entitled to compensation for said losses at the rate of 1% of the price for each full week of delay up to a maximum of 10% of the price for that part of the delivery not delivered in compliance with the contract by reason of the delay.
4.6 Additional claims by the contractual partner for compensation – for late delivery or instead of performance – beyond those covered by the above paragraph are excluded in all cases including after expiry of any delivery deadline set for SWG-PRODUCTION. This exclusion does not apply in cases involving malicious intent, gross negligence or loss of life, bodily injury or damage to health where liability is mandatory.
4.7 In the context of the applicable legal provisions, the contractual partner can withdraw from the contract only when SWG-PRODUCTION is responsible for a delay in delivery. The foregoing provisions do not constitute a change in the burden of proof to the detriment of the contractual partner.
4.8 The reliable shipment of the goods ordered is effected by the carrier commissioned by SWG-PRODUCTION. The contractual partners are in agreement that in contested cases, it is for the buyer to prove that a delivery was not received.
4.9 If delivery “ex works” is agreed, the contractual partner shall commission the carrier. SWG-PRODUCTION will inform either the contractual partner or the carrier, as stipulated, of readiness for shipment.
5 Transfer of risk
5.1 As a matter of basic principle, shipment is at the contractual partner’s risk and this applies also in the case of carriage-paid delivery or when transport is effected using SWG-PRODUCTION vehicles. Risk passes to the contractual partner when the delivery is handed over to the company/person charged with the transport. This applies also when the transport is performed by a vicarious agent of SWG-PRODUCTION.
SWG-PRODUCTION is liable for defects as follows:
6.1 All goods and services exhibiting defects whose cause existed prior to the point at which risk transferred to the contractual partner can, at the discretion of SWG-PRODUCTION, be remedied, replaced or performed anew free-of-charge.
6.2 The period of limitation in respect of claims for defects is 12 months, measured from the date of transfer of risk.
6.3 The statutory provisions regarding suspension, reinstatement and renewal of periods of grace remain unaffected.
6.4 If SWG-PRODUCTION fails to remedy the defect, the contractual partner may withdraw from the contract or reduce the purchase price.
6.5 The contractual partner may not refuse acceptance of deliveries on the grounds of immaterial defects.
6.6 Warranty claims may not be made in the following cases: immaterial deviation from the agreed quality, immaterial negative effect on usability, normal wear and tear or damage resulting from incorrect or careless treatment, excessive loading or from other exceptional external influences not foreseen in the contract.
6.7 Claims by the contractual partner in respect of expenditures necessary in connection with remedy, in particular costs for transport, travel, personnel and material are excluded to the extent that the expenditures are higher because the object of the delivery was moved to a place other than the place of business of the contractual partner.
6.8 The contractual partner has rights or recourse against SWG-PRODUCTION in accordance with § 478 BGB (German Civil Code) only in so far as the contractual partner has not reached any agreement with his customer that go beyond the statutory rights in respect of claims for defects. In addition, the provisions in the abovementioned paragraph in respect of the extent of the right of recourse of the contractual partner against SWG-PRODUCTION in accordance with § 478 II BGB apply.
6.9 In addition, the following Paragraph 7 applies in respect of claims for damages. More extensive rights or rights other than those listed there on the part of the contractual partner against SWG-PRODUCTION or its vicarious agents in respect of material defects are excluded.
6.10 Liability for negligence resulting in loss of life, bodily injury or damage to health remains unaffected, as does mandatory liability under the provisions of the German Product Liability Act.
6.11 Claims by the contractual partner for defects presuppose that he has correctly complied with the requirements of § 377 HGB (German Commercial Code) concerning his obligations in respect of inspection and notification.
6.12 In the event that SWG-PRODUCTION takes back goods without being legally or contractually obliged to do so, a charge of 20% of the net value of the goods will be invoiced for warehousing/reworking.
7 Hydrogen Brittleness
7.1 The parties to the contract understand clearly the multiple causes and problems associated with hydrogen-induced embrittlement, in particular, in the case of galvanized, high tensile and/or case-hardened items with tensile strength exceeding 1000 N/mm² and core or surface hardness exceeding 320 HV as described in DIN EN ISO 4042. For these types of items there exists, amongst others, the possibility of hydrogen-induced brittle fracture, which cannot be excluded.
7.2 If a reduction is observed in the risk of hydrogen-induced brittle fracture in the field of application of the product (e.g. due to design changes or as safety element), the purchaser commits to coordinating closely the processing and the procurement of feedstock with SWG.
7.3 DIN EN ISO 4042 is deemed to constitute an integral part of the contract. If the procedure is correctly adhered to, liability for defects deriving from hydrogen-induced brittleness is excluded, unless said defects result from malicious intent or gross negligence on the part of SWG or the purchaser claims compensation for loss of life, physical injury or damage to health. Liability under the provisions of the German Product Liability Act remains unaffected.
8 Zinc flake coating / Ruspert coating
Despite optimal process setting of the coater, missing parts with material accumulations (droplet formation) and addition marks (adhesions) can not be excluded at 100%. Accumulations / residues or a skin formation in the corners of the inner contour can occur, especially with screws with scooping indoor driving force. These missing parts can be selected through wage sorting, which we can offer to you upon request.
9 Total liability
9.1 Claims by the contractual partner for damages and compensation of expenditures, in particular for breach of obligation resulting from the contractual relationship or for tort are excluded.
9.2 The above does not apply in the case of mandatory liability, of malicious intent, of gross negligence, of loss of life, physical injury or damage to health or due to breach of material contractual obligations. Compensation for breach of material contractual obligations is limited to foreseeable damages typical for the type of contract at issue, except in the case of malicious intent, of gross negligence or of loss of life, physical injury or damage to health. The foregoing provisions do not constitute a change in the burden of proof to the detriment of the contractual partner.
9.3 The limitation in paragraph 1 applies also in the event that the contractual partner demands reimbursement of wasted expenditure instead of claiming compensation for damages in place of performance.
In the event of unforeseeable events in the sense of strike, lock-out, interruption to operations, etc., that materially change the economic significance or the content of the object of the contract or materially impact the operations of SWG-PRODUCTION, the contract shall be adapted appropriately having due regard to the principle of good faith.
11 Retention of title
11.1 SWG-PRODUCTION retains title to the goods supplied until all payments due under the contract have been received. In the case of breach of contract by the contractual partner and in particular in the case of default of payment, SWG-PRODUCTION is entitled to demand return of the goods. SWG-PRODUCTION’s taking back the goods constitutes withdrawal from the contract. SWG-PRODUCTION is entitled to utilise returned goods whereby the proceeds of said utilisation less reasonable utilisation costs are offset against the liabilities of the contractual partner.
11.2 The contractual partner is bound to handle the goods with due care and in particular, shall at his own expense insure these against loss or damage through fire, water and theft to the original value. If maintenance or inspection works are necessary, these shall be performed in a timely manner by the contractual partner at his own expense.
11.3 In the case of attachment or other intervention by third parties, the contractual partner shall immediately inform SWG-PRODUCTION in writing so that SWG-PRODUCTION may take legal action in accordance with § 771 German Code of Civil Procedure (ZPO). If the third party is not able to compensate SWG-PRODUCTION for its in-court and out-of-court expenses in relation to the lawsuit in accordance with § 771 German Code of Civil Procedure (ZPO) the contractual partner is liable for SWG-PRODUCTION’s loss.
12 Court of jurisdiction, applicable law
12.1 If the contractual partner is a merchant in a legal sense, the sole court of jurisdiction for all disputes arising directly or indirectly out of this contractual relationship is the State Court (Landgericht) in Heilbronn. SWG-PRODUCTION is also entitled to take legal action at the location of the contractual partner’s premises.
12.2 The law of the Federal Republic of Germany shall apply; the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) are excluded.
12.3 Place of performance is Waldenburg.
13 Severability clause
In the event that individual clauses of this contract become void or unenforceable, the validity of the remaining clauses is unaffected. This does not apply in the event that continued adherence to the contract would constitute unreasonable hardship for one of the parties.
Commercial register: Stuttgart HRB 580 857
Headquarters: 74638 Waldenburg
Directors: Dr. Roland Janner, Gösta Pietsch, Tobias Schneider, Alois Wimmer