General Terms and Conditions of Purchase of Salamander Industrie-Produkte GmbH, Salamander Extrusion GmbH & Co. KG, and Salamander SPS GmbH & Co. KG
A. General
I. Applicability
We, Salamander Industrie-Produkte GmbH, Salamander Extrusion GmbH & Co. KG, and Salamander SPS GmbH & Co. KG (hereinafter referred to as "Salamander"), place orders exclusively on the basis of our General Terms and Conditions of Purchase (hereinafter referred to as "GTC"). The application of differing general terms and conditions of the supplier is excluded for the supplier and for all subsequent orders. The applicability of such other terms and conditions is expressly contradicted. These GTC also apply to all future contractual relationships with the supplier. There is no need to refer to these purchasing conditions again for future orders.
These GTC apply exclusively to entrepreneurs (§ 14 BGB).
The type and scope of the mutual services are governed in the following order of precedence:
The contents of the order,
The further contractual conditions listed in the order,
The provisions of the delivery contract,
The technical delivery conditions and quality assurance agreements,
These purchasing conditions.
Salamander reserves the right to change or supplement the purchasing conditions at any time with reasonable notice. Previous versions of the purchasing conditions thereby lose their validity. The current versions of the purchasing conditions or general terms and conditions are available at www.salamanderps.com in the footer.
II. Order and Order Confirmation, Certificates of Origin, Export Control
Orders placed by us are only valid if they are made in writing. Third parties, particularly our employees, are not authorized to make verbal side agreements or give verbal assurances that go beyond the content of the written contracts. Corresponding declarations do not establish any obligations on our part. Verbal and telephone agreements require written confirmation to be binding.
The supplier must confirm the order in writing. The order confirmation must reflect all details of the order. Deviations from our orders are only considered approved if they are confirmed by us in writing.
If the supplier recognizes that an order is incomplete due to his expertise, or that the purpose pursued by us with the order cannot be achieved through the delivery, he must inform us immediately and comprehensively.
The supplier must comply with all applicable requirements of national and international export, customs, and foreign trade laws for all goods to be delivered and services to be provided. He must provide Salamander with all information and data in writing as early as possible, but no later than two weeks before the delivery date, that Salamander requires to comply with the applicable customs and foreign trade regulations for export and import, as well as for re-export of goods and services in case of resale, and update them in case of changes.
By accepting the order, the supplier commits to specifying the exact country of origin of the goods and to providing a shipment-specific supplier declaration or a long-term supplier declaration for goods with preferential origin for EU-origin goods, and to sending a certificate of origin for third-country goods. For delivery from a preferential country, the supplier is obligated to create a valid preference certificate EUR.1 or a declaration of origin on the invoice. If the supplier cannot provide a shipment-specific supplier declaration or long-term supplier declaration for the preferential origin, he is obligated to provide a shipment-specific supplier declaration or long-term supplier declaration for the non-preferential origin. Should supplier declarations, preference certificates, or certificates of origin prove to be incorrect, the supplier is obligated to compensate for the resulting damage.
The supplier is obligated to inform Salamander upon request about any licensing requirements for (re-)exports of his goods in accordance with German, European, US export and customs regulations, as well as the export and customs regulations of the country of origin of his goods, in his business documents in writing, and to provide the following information:
The export list number according to Annex AL to the German Foreign Trade and Payments Ordinance or comparable list positions of relevant export lists,
For US goods, the ECCN (Export Control Classification Number) according to US Export Administration Regulations (EAR),
The commercial origin of his goods (according to the Customs Code) and the components of his goods, including technology and software,
Whether the goods are transported through, manufactured or stored in the USA, or manufactured using US technology,
The statistical commodity code (HS code) of his goods.
Furthermore, the supplier is obligated to inform Salamander immediately (before delivery of affected goods) of any changes to the above data in writing. Upon request by Salamander, the supplier will provide all further foreign trade data on his goods and their components in writing.
If the supplier violates applicable requirements of national and/or international export, customs, or foreign trade law or the information obligation from the above paragraphs, he agrees to indemnify Salamander against all resulting expenses, damages, and claims unless the supplier is not responsible for the violation. This does not entail a reversal of the burden of proof.
III. Prices, Shipping, Packaging, Transfer of Risk, and Ownership
The agreed prices are fixed prices and include statutory VAT unless otherwise agreed. Unless expressly otherwise agreed, fees, costs for packaging, freight, and transport to the recipient address specified by Salamander are included. The obligation to return the packaging requires a special agreement.
A price increase or decrease resulting from changes in execution must be reported to Salamander immediately in writing, whereby the agreement on a price increase or decrease requires the written consent of Salamander before delivery of the goods or provision of the service.
Partial deliveries are only permissible with prior written consent. Unless otherwise agreed, over- and under-deliveries are only permitted within a margin of 5% of the quantity of the individual order.
Shipments where non-free delivery is agreed must always be shipped at the lowest cost. Salamander is not obliged to pay for any additional costs arising from non-compliance with these regulations, as well as costs for additional charges, etc., at the place of shipment.
The delivery note must be attached to the goods shipment. The invoice must be sent separately from the goods shipment to the billing address specified in the order. The delivery note and invoice must be marked with the Salamander order number.
Shipping is at the supplier's expense and risk. The risk passes to Salamander after unloading with acceptance of the delivery by Salamander or at the agreed destination. This also applies if the supplier hands over the goods to a carrier or freight forwarder. If Salamander accepts the goods at the supplier's premises and the goods remain at the supplier's premises after acceptance by Salamander, the supplier bears the risk of accidental deterioration or accidental loss of the goods until the goods reach their destination and are unloaded there.
IV. Delivery Time
The agreed delivery dates are binding and are always understood without grace periods. The receipt of the goods at the place of use specified by Salamander or the timeliness of the acceptance is decisive for compliance with the delivery date or delivery period. Acceptance of a delayed delivery or service by Salamander does not constitute a waiver of claims for damages. If the delivery time is exceeded, the supplier is in default without the need for a reminder.
Events of force majeure, strikes, lockouts, operational disruptions, and other unforeseeable and unavoidable events that significantly impede Salamander from accepting and/or processing the ordered goods, especially sales stoppages, give Salamander the right to postpone acceptance periods or - if the obstacle is not only temporary and not attributable to Salamander - to withdraw from the contract without the supplier being entitled to claim damages. Salamander will inform the supplier of the necessary information immediately.
In the event of exceeding the delivery time, a contractual penalty of 0.5% of the order value for each commenced week of culpable delay, but no more than 5% of the order value in total, is agreed upon. This contractual penalty can also be claimed during the final payment without requiring a reservation upon acceptance. Salamander's assertion of further rights remains unaffected.
The supplier must inform Salamander in writing immediately of any circumstances that may lead to exceeding the agreed delivery or performance time, without prejudice to Salamander's statutory or aforementioned rights.
V. Invoice and Payment
The place of performance for payments is the location of Salamander's headquarters.
Unless otherwise agreed in writing, the payment term is 60 days net after receipt of the invoice with the Salamander order number and complete receipt of the goods or complete performance.
Any payment is made subject to Salamander's rights regarding any defects. A payment does not constitute acknowledgment, fulfillment, or waiver of warranty claims; this also applies to the receipt issued upon goods receipt. Salamander is entitled to withhold payment in whole or in part until defects are remedied or other counterclaims from the entire business relationship are satisfied.
Salamander is entitled to offset claims of the supplier against claims of companies affiliated with Salamander. The supplier may only offset or exercise rights of retention based on his claims if his counterclaims are legally established, undisputed, or acknowledged in writing by Salamander.
If weighing has not already been carried out on a calibrated scale at the place of shipment, the weight determined by Salamander is decisive for invoices based on weight. In any case, Salamander reserves the right to perform its weighing on a calibrated scale and to contact the supplier in case of discrepancies to clarify the weight differences.
If national or international foreign trade regulations, embargoes, or other sanctions oppose payment, Salamander will not pay and is not otherwise obliged to fulfill the contract.
VI. Warranty and Guarantee
The supplier must conduct a factory inspection of the products he delivers, particularly an outgoing goods inspection. The supplier commits to making records of the inspections carried out and archiving the test, measurement, and control results for 10 years. Salamander is entitled to inspect the aforementioned records and documents and make copies of them.
Unless otherwise agreed, incoming goods inspections at Salamander are carried out only as identity and quantity checks and for externally visible transport and packaging damage. The obligation to inspect and report obvious defects or quality deviations begins in all cases, even if the delivery has previously passed into Salamander's ownership or has been handed over to the carrier, forwarder, or other agents of Salamander, only when the proper shipping notice is received and the goods have arrived at the destination specified by Salamander. Salamander is only obliged to open the packaging and inspect the goods on a sample basis. All defects not recognizable due to packaging or not detectable during sample checks are considered hidden defects. The period for reporting defects is 10 working days from receipt of the goods at the receiving location specified by us, for hidden defects, 10 working days from discovery. For compliance with this period, the dispatch of the defect notification by Salamander is decisive.
The supplier is liable for his deliveries and services according to the statutory provisions. The warranty period for goods deliveries is 36 months from delivery. For goods that have been used according to their usual purpose for a building and caused its defectiveness, the warranty period is 5 ½ years from delivery. The 5 ½-year warranty period applies equally to the delivery of commercial goods and products for surface finishing.
Defects leading to refusal of acceptance and all defects discovered during the warranty period or upon transfer of risk must be remedied by the supplier at Salamander's option at the supplier's expense or new delivery or performance without defects.
If the supplier does not remedy the defect, deliver a new product, or perform within a reasonable period set by Salamander, Salamander may:
Demand a reduction in the price,
Withdraw from the contract wholly or partially,
Remedy or have the defect remedied at the supplier's expense, or
Purchase replacement from a third party and/or
Claim damages for breach of duty.
The above applies equally if the supplier declares himself unable to remedy the defect, deliver a new product, or perform within a reasonable period, whereby setting a subsequent deadline for exercising the aforementioned rights is not required if the supplier refuses performance, Salamander is unreasonably burdened with remedial action, or special circumstances justify immediate enforcement of the aforementioned rights, balancing mutual interests.
Further statutory claims remain unaffected.
The supplier bears the costs and risk of returning defective delivery items.
The supplier will indemnify Salamander against third-party claims for damages based on personal injury and property damage caused by a defect in the product under his control and organization and for which he is liable. If recall or service actions are carried out due to problems with delivery items from the supplier, the supplier bears all necessary costs of the recall or service actions if he is responsible for the problems. This also applies to costs invoiced by customers to Salamander. Salamander will inform the supplier about the content and scope of the recall measures - as far as possible and reasonable - and give him the opportunity to comment.
In urgent cases, Salamander is entitled to remedy defects in the delivery item at the supplier's expense or have them remedied without informing the supplier about the defect and the manner of its remedy or setting a subsequent deadline. Such a case exists if it is not possible due to special urgency to inform the supplier about the defect and the imminent damage and to set a reasonable deadline for his own remedy. The supplier's liability for compensation is limited to the reasonable extent.
The supplier must insure against the potential product liability risk beyond his normal business liability insurance and provide corresponding insurance policies upon request.
The supplier is not entitled to change the delivery item after the contract is concluded or during the delivery period.
In particular, for the purchase of raw materials, production materials, and technical components for resale, the supplier may not change the material specification of the delivery item, the production process, the production location, the machines and tools used, or the combination of pre-material specification and suppliers without prior written approval from Salamander. If the supplier wishes to change the delivery item, he must notify Salamander and present the changes at the earliest possible time. The implementation of such deviations is only permissible after our written approval, and Salamander is not obligated to give such approval.
If the supplier independently changes the delivery item or fails to comply with the aforementioned obligations culpably, Salamander is entitled to terminate the delivery relationship extraordinarily, including current orders, and the supplier must cover all costs incurred by us or third parties, such as replacement deliveries, re-examinations or treatments, expert opinions, etc.
The supplier assumes a dependent durability guarantee for his deliveries and services for 3 years from the transfer of risk, ensuring that his deliveries and services:
Are free from defects of any kind,
Are fully suitable for the intended or agreed purpose, and
Have the contractual or assured characteristics.
Salamander has the right to subsequent performance in the event of a guarantee case. If the supplier provides a longer or more extensive guarantee on his own, this guarantee offered or provided by the supplier applies, with statutory defect rights remaining unaffected.
VII. Drawings, Specifications, Tools
Salamander retains ownership and copyright to all illustrations, drawings, calculations, specifications, samples, software, tools, and other documents. They may not be made accessible to third parties without prior written consent. They are exclusively to be used for fulfilling the contractually owed services and returned to Salamander - without retaining copies - or deleted upon request, at the latest upon termination of the business relationship. The deletion must be promptly confirmed in writing to Salamander, along with the confirmation that no copies of the documents are still available or that they have been fully deleted. Any loss of the aforementioned documents must be reported to Salamander immediately.
The supplier is obliged to use tools manufactured based on Salamander's drawings, specifications, samples, specifications, or similar exclusively for manufacturing the goods ordered by us. He is further obliged to carry out necessary maintenance and inspection work at his own expense or have it carried out professionally. Any operational malfunctions must be reported to us immediately. If he fails to do so, we expressly reserve the right to assert claims for damages resulting from this. If the tool is owned by Salamander and work beyond normal maintenance and inspection is necessary to meet the required quality and tolerances demanded by Salamander, Salamander will cover these costs only if Salamander has agreed to or commissioned these works in writing.
VIII. Provision
All materials and items provided by Salamander, especially samples and tools, remain the property of Salamander, with the proviso that Salamander is considered the manufacturer and retains or directly acquires ownership of the items produced through processing these materials. The materials and items must be stored for Salamander under special labeling and insured against fire, water damage, and theft.
Wooden or steel pallets and other transport means provided by Salamander remain Salamander's property and must be returned to Salamander. In case of non-return, Salamander reserves the right to assert claims for damages.
IX. Intellectual Property Rights
The supplier grants Salamander a simple, irrevocable, worldwide license to its own intellectual property rights or other rights for the possession, distribution, and use of the delivered goods and resulting products.
The supplier must deliver the goods free from intellectual property rights or other third-party rights. If the delivered goods and/or their use infringe third-party intellectual property rights, the supplier must make all reasonable efforts to provide Salamander with an unrestricted right to use them.
The supplier is obligated to indemnify Salamander from all third-party claims due to the infringement of rights mentioned in paragraph 2 and to reimburse Salamander for all expenses related to the claim, including the costs of reasonable legal defense.
X. Confidentiality
The order and the information of a commercial and technical nature provided to the supplier by Salamander in this context must be treated strictly confidentially and may not be disclosed to third parties without Salamander's written consent unless necessary for fulfilling the contract.
XI. Environmental and Health Protection, REACH, RoHS
The supplier is obligated to comply with the recognized rules of technology and the valid legal and regulatory provisions and Salamander's operational rules and regulations. Unless further requirements are specified in the order, deliveries and services must be provided according to the recognized rules of technology, the specifications of any suppliers, and, if DIN, VDE, VDI, DVGW, or equivalent standards exist, in compliance with these standards. The delivery items and services must be manufactured so that they comply with all applicable legal and regulatory provisions, including those of the Equipment Safety Act and environmental protection, and meet the accident prevention regulations. In particular, the supplier must comply with the occupational health and safety regulations, the "General Regulations" BGVA 1, and the generally recognized safety and occupational medicine rules. Machines and technical working equipment must be delivered with an EC declaration of conformity and CE marking or a manufacturer's declaration in accordance with the Machinery Directive, and an operating manual must be included. They must also comply with the standards and other safety-related rules listed in Annexes A and B of the "General Administrative Regulation on the Law on Technical Equipment" and the occupational health and safety regulations.
If Salamander orders substances or preparations for which a safety data sheet is available, the supplier must provide this and the information required under Article 32 of the REACH Regulation free of charge and in the form corresponding to the REACH Regulation (EC) No. 1907/2006 to the purchasing department. This also applies to updates of safety data sheets. The use of carcinogenic substances is prohibited for the supplier. The supplier ensures that his deliveries comply with the provisions of the Registration, Evaluation, Authorization, and Restriction of Chemicals Regulation ("REACH Regulation"). In particular, the supplier ensures that the substances contained in the products he delivers are pre-registered or registered after the transition periods, as required under the REACH Regulation. If the supplier supplies articles within the meaning of Article 3 of the REACH Regulation, he ensures in particular that he fulfills his obligation to pass on certain information according to Article 33 of the REACH Regulation.
The supplier must comply with all requirements arising from the RoHS Directive 2011/65/EU and the resulting national implementation laws.
XII. Compliance with the Minimum Wage Act, Security Provision, Special Termination Right
The supplier guarantees that each of his employees receives regular wages at least equal to the applicable statutory minimum wage. The supplier will obligate subcontractors and lenders with whom he has contractual relationships accordingly and guarantees for them that each of their employees receives timely wages at least equal to the applicable statutory minimum wage.
The supplier indemnifies Salamander against liability under § 13 MiLoG in full. If Salamander is held liable under § 13 MiLoG by employees of the supplier, subcontractors of the supplier, or lenders with whom the supplier has contractual relationships, the supplier will bear all costs of the claim, regardless of fault.
In case of a breach of any of the obligations from paragraph 1 or if Salamander is claimed under § 13 MiLoG by employees of the supplier, subcontractors of the supplier, or lenders employed by the supplier, Salamander has the right to terminate orders and other agreements - even partially - without notice.
XIII. Advertising
Notwithstanding other written agreements, the supplier may not refer to the business relationship with Salamander for advertising purposes.
XIV. Compliance
The supplier commits to comply with all relevant legal regulations, especially anti-corruption and antitrust laws. The highest standards of integrity must be applied in all business activities. The supplier must pursue a zero-tolerance policy on all forms of bribery, corruption, extortion, and embezzlement. In particular, the supplier will not offer, promise, or grant any benefit to an employee of Salamander or a third party in return for the employee taking or refraining from an action in the procurement of goods or services and thereby violating his duties to Salamander. In case of non-compliance, Salamander explicitly reserves the right to file a criminal complaint immediately.
The supplier also commits to respecting the fundamental rights of his employees and ensuring their safety at work within his own organization. Furthermore, the supplier will comply with the prohibition of child labor in accordance with the Declaration of the International Labour Organization (ILO) on Fundamental Principles and Rights at Work. Salamander may withdraw from the contract or terminate it if the supplier does not comply with the aforementioned obligations.
XV. Data Protection
The necessary personal data of the supplier is collected, processed, and used for handling the delivery at Salamander. The supplier expressly consents to the collection, processing, and use of personal data for fulfilling the purchase contract and for safeguarding our legitimate interests. The supplier can revoke this consent at any time (Article 21 GDPR).
All data processing operations are carried out in compliance with the General Data Protection Regulation (GDPR) (Article 6 para. 1b GDPR). Certain technical and organizational measures secure the data of the customer stored by us from loss, access, or manipulation by unauthorized persons. If the supplier exercises his right to delete the data, all data that must not be expressly retained by law will be deleted immediately. Salamander will inform about the measures taken without delay.
The supplier's address and contact details may be passed on to the transport service provider entrusted with the delivery if this is absolutely necessary for delivery. Only the essential data will be transmitted in any case (data minimization). Our IT service companies, which contractually ensure reliable handling of the supplier's personal data, may have access to the supplier's personal data if necessary.
Detailed information on data protection and data subject rights can be found in the data protection information on our homepage at www.salamanderps.com.
Our data protection officer can be reached at datenschutzsps@sip.de or at the following postal address: SNS Systems GmbH, Palmbachstrasse 20, 65510 Hünstetten.
XVI. Place of Performance, Choice of Law, Jurisdiction
The place of performance is the receiving location specified by Salamander unless otherwise agreed in writing in individual cases.
The exclusive jurisdiction for all types of disputes with suppliers who are merchants, legal entities under public law, or special funds under public law is the court responsible for our headquarters. However, we reserve the right to sue at the supplier's place of business or residence or any other competent court under applicable law.
The legal relationship with the supplier is governed exclusively by the law of the Federal Republic of Germany, excluding uniform sales law and the UN Sales Convention.
If insolvency proceedings are filed over the supplier's assets, Salamander is entitled to withdraw from the contract for the unfulfilled part.
Should any provision of these terms be wholly or partially invalid or unenforceable, the validity of the remaining provisions shall not be affected. The invalid or unenforceable provision shall be replaced by a provision that comes as close as possible to the economic and legal purpose or intent of the invalid or unenforceable provision.
B. Special Regulations for Contracts for Services and Works
I. Performance of Services and Information Obligation
For the performance of the services owed by him, the contractor will employ suitably qualified personnel and ensure that required work permits are available.
The contractor will perform the services according to the current state of the art, whereby the contractor is free to organize the working hours.
The contractor is only entitled to use subcontractors with prior written consent from Salamander.
II. Changes in Performance
Salamander is entitled to request changes in the scope of services, provided this is not unreasonable for the contractor. If the desired change results in additional costs, the contractor must notify Salamander of this in writing and before executing the changed order.
III. Acceptance of Work Services
Work services are subject to an acceptance test after being provided by the contractor. If these are free from defects, Salamander will declare the acceptance of the service after the completion of the acceptance test.
If the work services are defective, the contractor must remedy them at his own expense within a reasonable period or, at Salamander's discretion, provide defect-free services anew. If the contractor fails to remedy the defects despite a reasonable grace period or fails to provide defect-free services anew, Salamander may withdraw from the contract or reduce the payment appropriately or remedy or have the defect remedied at the contractor's expense and claim damages. A prior grace period is not required for the exercise of the aforementioned rights if the contractor refuses performance, subsequent performance is unreasonable for Salamander, or special circumstances justify immediate assertion of the aforementioned rights, balancing mutual interests.
IV. Rights to Results
With their creation, and at any stage of processing, the results of the services (hereinafter referred to as "results") become the property of Salamander. The contractor will store the results for Salamander until their handover. If Salamander does not become the original sole owner of all rights to the results for legal reasons, Salamander has the exclusive, transferable, sublicensable, worldwide, unlimited right in terms of content and time to use the results in any known and unknown form of use, in whole or in part, to reproduce, modify, make public, publish, or exploit them.
The contractor will inform Salamander in writing immediately if results are created that are protectable by industrial property rights. Salamander is entitled to apply for protection rights for these in any country at its discretion and in its name, maintain them, or let them expire at any time. The contractor is prohibited from registering a corresponding entry in his name or that of a third party or directly or indirectly supporting third parties in this. Furthermore, the contractor waives the right to be named as the author concerning the results achieved.
The contractor will ensure that intellectual property arising in the course of performing the services is transferred to Salamander without additional costs.
The contractor will ensure in relation to his employees, freelancers, or third parties employed by him for performing services, that the rights belong exclusively and indefinitely to Salamander and are not affected by the termination of contracts between the contractor and the third parties. Otherwise, the contractor will compensate Salamander for all resulting damages and expenses, including the costs of reasonable legal defense and indemnify Salamander from claims by third parties.
The described rights of use are fully compensated by the contractually agreed remuneration.
V. Liability
In the event of breaches of contract of any kind, the contractor is fully liable according to the statutory provisions.
(Status: October 2022)