The orders of Bierther Submikron GmbH, (hereinafter: “BSM” or “we”) shall be made exclusively on the basis of the following Terms and Conditions of Purchase (“General Terms and Conditions of Purchase”). Our General Terms and Conditions of Purchase are freely available on the internet/intranet/extranet at www.submikron.com at any time and can be saved and printed out by the Supplier in reproducible form. Unless otherwise agreed, the General Terms and Conditions of Purchase in the version valid at the time of our order or, in any case, in the version last communicated to the purchaser in writing shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case. Any conflicting terms and conditions of sale of the Supplier are hereby expressly rejected. Any deviations and additions by the Supplier to these Terms and Conditions of Purchase shall only be recognized by BSM if BSM expressly agrees to their validity in writing. They shall only apply to the transaction for which they were made in the individual case. This requirement for consent shall apply in any case, for example even if BSM accepts the Supplier’s deliveries without reservation in the knowledge of the Supplier’s terms and conditions of sale. Furthermore, the currently valid Incoterms shall apply.
1.2 Upon acceptance of an order by the Supplier, at the latest upon delivery of the ordered goods or performance of the ordered service, the Supplier shall acknowledge the sole binding nature of these General Terms and Conditions of Purchase. The General Terms and Conditions of Purchase shall equally apply to the purchase of movable goods (hereinafter also referred to as “Deliveries”) as well as works and services (hereinafter also referred to as “Services”). Furthermore, the General Terms and Conditions of Purchase shall apply in particular to contracts for the purchase and/or delivery of movable goods (hereinafter also referred to as “Goods”), irrespective of whether the Supplier manufactures the Goods itself or purchases them from Suppliers (Art. 433, 650 of the BGB (German Civil Code)).
1.3 Purchase orders shall only be binding if they have been placed in writing. There are no verbal collateral agreements when the contract is concluded. Orders or supplements placed orally or by telephone as well as changes to orders already placed or contracts already concluded must be made in writing to be effective.
1.4 Individual agreements made with the Supplier after the conclusion of the contract (including collateral agreements, supplements and amendments) shall take precedence over these General Terms and Conditions of Purchase in any case. The content of such agreements shall be governed by a written contract or our written confirmation, unless there is evidence to the contrary.
1.5 These Terms and Conditions of Purchase shall apply exclusively to entrepreneurs (Art. 14 of the German Civil Code), legal entities under public law or special funds under public law within the meaning of Art. 310 para. 1 of the German Civil Code.
2.1 The acceptance of our orders shall be confirmed in writing within 3 days after submission of the order and/or executed without reservation, in particular by dispatching the goods. An order confirmation received later or whose content deviates from the order shall be deemed a new offer and must be accepted in writing by BSM in order to be effective.
2.2 Call-offs for deliveries or services shall become binding after 2 weeks at the latest if the Supplier has not objected to them in writing by then.
2.3 The transfer of the order to third parties, including the assignment of the resulting rights and claims, requires the prior written consent of BSM. In the event of non-compliance with this provision, BSM reserves the right to withdraw from the contract by written declaration and/or to claim damages. Furthermore, Clause 6 of these General Terms and Conditions of Purchase shall also apply to the Supplier’s services.
3.1 If no special agreement has been made, the prices shall be understood to include the legal value added tax free our works including packaging to the address determined by us (place of destination). The agreed prices are fixed prices for the entire order quantity, regardless of how the delivery or service is provided, in particular whether the goods are accepted all at once or in partial deliveries. The respective place of destination shall also be the place of performance for the delivery or service and any subsequent performance.
3.2 If, by way of exception, a price “ex works” or “ex warehouse” is agreed, we shall only bear the most favorable freight costs. All costs incurred until handover to the carrier, including loading and cartage, shall be borne by the Supplier. The agreement on the place of performance is not affected by the type of pricing.
3.3 The customs clearance of deliveries from abroad including the payment of any import duty due shall be undertaken by the Supplier (Incoterm “DDP”). The Supplier shall provide information on the country of origin, marking and classification of goods subject to export control and, upon request, certificates of origin or proof of preference.
4.1 The agreed delivery and performance dates shall be deemed to have been met if the goods have been received at the delivery address at the time stipulated in the order or if the service has been rendered on the agreed date.
4.2 Deliveries or services before the deadline in accordance with Art. 4 a) of these General Terms and Conditions of Purchase shall be only permitted with the consent of BSM.
4.3 If agreed dates and deadlines are exceeded, BSM reserves the right to withdraw from the contract by written declaration after the expiry of a reasonable grace period. Moreover, the Supplier is obliged, in addition to further legal claims, to compensate for the following lump-sum damage caused by delay:
4.4 The Supplier undertakes to inform BSM immediately and in writing, stating the reason and the presumed duration, of all circumstances that could affect timely delivery or performance as soon as these circumstances became apparent. BSM reserves the right to grant an extension of the delivery dates.
4.5 The Supplier shall enclose a delivery or service bill with each delivery or service, stating the Supplier and purchase order number. The Supplier shall enclose the relevant test certificates with the delivery. The delivery or service bill must also correspond exactly in wording to the purchase order and the order confirmation and contain all relevant details, in particular the date (issue and dispatch) and the contents of the delivery (all individual parts, weights, dimensions, goods no.) as well as BSM’s order number and order date.
4.6 If force majeure, outbreak of war, natural disasters, strikes, lockouts, official measures and other unforeseeable serious events beyond the control of BSM and for which BSM is not responsible result in the delivery not being accepted or delivered or the service not being provided or accepted, BSM shall be released from the respective acceptance obligation for the duration of the disruption and to the extent of its effect, to the exclusion of any claims for compensation against BSM, and shall be entitled to withdraw from the contract. BSM shall adapt its own obligations to the changed circumstances in good faith. This may mean that BSM shall waive the remaining deliveries or services in whole or in part or demand the continuation of the deliveries or services even after the disruption has been remedied.
5.1 BSM is not obligated to accept partial deliveries that have not been agreed upon. If partial deliveries are agreed, BSM may determine their order. BSM is entitled to use partial deliveries without thereby acknowledging the contractual conformity of the delivery.
5.2 The condition, type, quantity and weight of a delivery shall be determined by the values determined during the incoming goods inspection at BSM.
5.3 BSM is entitled to reject excess and short deliveries outside the customary tolerances. Deliveries with deviations of more than 5% from the order quantity shall in any case require the prior written consent of BSM.
6.1 The Supplier shall perform its services under its own responsibility with its own personnel, material and tools. The Supplier shall always provide the service itself. Subcontracting is only possible with the prior written consent of BSM. BSM undertakes to provide the Supplier with all information, documents and materials available to BSM and necessary for the performance of the services.
6.2 The subcontractors are obliged to comply with the applicable General Data Protection Regulation (GDPR) and the Code of Conduct of BSM. BSM reserves the right to take appropriate measures in the event of a breach of the obligations arising from these regulations
7.1 The delivery address specified in the order is decisive for the delivery. Deliveries shall be made free delivery address (unless the parties agree otherwise in individual cases).
7.2 The risk of accidental loss and accidental deterioration of the item (transfer of risk) shall pass upon handover of the goods at the place of performance, i.e. in the case of regular delivery free delivery address upon receipt of the goods and an acknowledgement of receipt by BSM.
7.3 BSM can determine the method of packaging and shipping. If this is not done, the Supplier shall select a type of packaging and shipping that is specifically favorable and suitable for each item. In the event of culpable non-compliance with this obligation, all costs incurred, such as replacement for damaged goods, additional freight, disposal and the like, shall be borne by the Supplier.
8.1 Changes to the content of the contract - in particular with regard to quantity or delivery or performance date - shall be regulated by mutual agreement between BSM and the Supplier and recorded in writing, whereby Clause 1d) of the General Terms and Conditions shall remain unaffected.
8.2 Notwithstanding the provision in this Clause 8 a) of the General Terms and Conditions of Purchase, BSM may at any time request reasonable technical changes to the goods or services ordered by BSM. Immediately after receipt of the request for change, the Supplier shall provide a proposal for possible additional or reduced costs as well as information on postponements of deadlines, etc. The Supplier shall not make such technical changes before BSM has given its written consent.
8.3 Changes to the object of delivery or service on the part of the Supplier require the prior written consent of BSM.
9.1 Invoicing by the Supplier shall be made in euro, or in the currency specified in the purchase order. Value added tax shall be stated separately in percentage and currency amount on the order confirmation and invoice. The invoice must contain all relevant details of the delivery or service bill.
9.2 The contractually agreed price for the deliveries or services is a fixed price and applies to the deliveries or services free delivery address or place of performance. It includes packaging, freight, import duty, cartage, insurance and the like, unless otherwise agreed.
9.3 Unless special agreements have been made, invoices shall be paid either within 14 days with a 3% discount, or within 30 days without discount, in each case calculated from receipt of the invoice by BSM in Bretzenheim. If the goods are received only after the invoice, this day shall be decisive for the assessment of the term of payment and the discount period. Incomplete invoices that are not verifiable, in particular invoices without an order number, order date or note of receipt, shall be returned to the Supplier for completion. The term of payment shall run only after receipt of the correspondingly completed invoice. In the case of bank transfer, payment shall be deemed to have been made on time if our transfer order is received by our bank before the expiry of the payment deadline; we shall not be responsible for any delays caused by the banks involved in the payment process.
9.4 If advance payment has been agreed with a Supplier, it shall provide security at our discretion. A separate written agreement shall be concluded on the granting of security.
9.5 BSM shall be entitled to rights of retention and the defense of non-performance of the contract to the extent provided by law. In the event of incomplete or defective performance, BSM shall be entitled to withhold the payment due pro rata in value until proper performance.
9.6 BSM shall be entitled to offset the claims that the Supplier asserts against BSM against all claims that BSM is entitled to against the Supplier. The offsetting of claims of the Supplier against BSM is only permitted with undisputed or legally established claims of the Supplier.
10.1 The Supplier currently maintains and shall continue to maintain a quality assurance system with the minimum requirement of DIN ISO 9001 and/or extended by IATF 16949. The application and effectiveness can be verified by BSM at the Supplier’s site through audits. For this purpose, the Supplier shall grant access to the individual production steps and inspection of the processes and quality documentation after reasonable advance notice. The Supplier and BSM shall inform each other about the possibilities of quality improvement.
10.2 The Supplier shall comply with the agreed technical data for his delivery. All goods delivered to BSM shall comply with the current legal requirements, in particular also with the requirements of the EU regarding prohibited and declarable contents. For products according to EC directives, the corresponding declarations of conformity, etc., are part of the delivery. Products bearing the CE marking are considered to be approved for the free movement of goods.
10.3 If goods are manufactured for BSM in accordance with their delivery specifications, production may not commence until agreed reference samples have been tested and approved by BSM.
10.4 Irrespective of an initial sample inspection and release, the Supplier shall constantly check the quality of the delivery items. If the type and scope of the tests as well as the test equipment and test methods have not been firmly agreed between the Supplier and BSM, the Supplier shall, at the request of BSM, discuss the tests with BSM within the scope of its knowledge, experience and possibilities in order to determine the state of the art of testing technology required in each case.
10.5 The Supplier is obliged to carry out an outgoing goods inspection based on the inspection criteria agreed with BSM. He shall attach to each delivery a test certificate in which the test results are recorded.
11.1 The legal provisions (Art. 377, 381 of the German Commercial Code) shall apply to the commercial obligation to examine the goods and to give notice of defects, subject to the following conditions: BSM shall inspect purchased goods immediately after delivery in accordance with the circumstances of a proper course of business for possible defects that become apparent during the incoming goods inspection at BSM under external inspection including the delivery documents (e.g. transport damage, wrong delivery and short delivery) or are recognizable during a quality inspection by BSM - as far as usual also in a random sampling procedure. Defects within the meaning of these General Terms and Conditions of Purchase are material defects or defects of title, excess, insufficient or incorrect deliveries as well as the absence of a quality or durability of the service or delivery guaranteed under certain circumstances. Obvious defects in the goods are still notified by BSM in good time if they are notified to the Supplier within 2 weeks of receipt of the goods by BSM. If the defect is a hidden defect, this period shall begin according to Clause 11 a) p. 3 with the discovery of the defect.
11.2 If the Supplier owes a work performance, a formal acceptance must be carried out. The formal acceptance shall not be replaced by the use of BSM, further processing or shipment of the object affected by the work performed or notification of completion of the work performance on the part of the Supplier.
12.1 The legal provisions shall apply to our rights in the event of material defects and defects of title of the goods or services (including incorrect and short delivery as well as improper assembly, defective assembly, operating or operating instructions) and in the event of other breaches of duty by the Supplier, unless otherwise stipulated below.
12.2 In accordance with the statutory provisions, the Supplier shall be liable for ensuring that the goods or services have the agreed quality when the risk passes to us. Agreements on quality are those concerning the delivery item or service, such as in particular with regard to the agreed design and quality, the intended use, and that the delivery and service comply with the latest state of the art, the relevant regulations of the authorities and the legal provisions. Furthermore, those product or service descriptions which are the subject of the respective contract, in particular by designation or reference in our order, or which have been incorporated into the contract in the same way as these General Terms and Conditions of Purchase, shall in any case be deemed to be agreements on quality. It makes no difference whether the product or service description originates from us, the Supplier or the manufacturer.
12.3 If defects in goods or parts thereof are discovered at BSM before the start of production, the following shall apply: The Supplier shall, at BSM’s option, immediately deliver new contract products free of defects or repair the defective goods, provided this is technically possible. Any sorting or other reworking required for this purpose shall be carried out by the Supplier in consultation with BSM. All costs caused by the delivery of the defective goods (sorting out, transport costs, rework costs, etc.) shall be borne by the Supplier.
12.4 The Supplier’s warranty also extends to the parts supplied by its sub-Suppliers. The Supplier is not entitled to assign its claims against the respective sub-Supplier to us and to make its own warranty obligation dependent on the fact that our action against the sub-Supplier was unsuccessful.
12.5 If a defect is discovered after the start of production at BSM, the provisions in Clause 12 c) of these General Terms and Conditions of Purchase shall apply first; in addition, the following shall apply:
12.6 If the defect is discovered even before delivery of the end products to BSM’s customers, the Supplier shall bear, if possible, in addition to the costs of rectification, the costs of replacement delivery, rework costs and the removal of the defective item and the installation or fitting of the rectified or re-delivered defect-free item.
12.7 If a defect is not detected until after delivery of the end products to BSM’s customers, the Supplier shall additionally bear a share of the costs incurred for recovery actions corresponding to the Supplier’s contribution to the cause. BSM shall notify the Supplier after becoming aware of such errors and determine the further course of action.
12.8 The Supplier shall bear the expenses necessary for the purpose of inspection and subsequent performance even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request to remedy a defect shall remain unaffected; in this respect, however, we shall only be liable if we recognized or were grossly negligent in not recognizing that there was no defect.
12.9 BSM may carry out the rectification itself, have it carried out by a third party or obtain replacements from third parties and demand reimbursement of the expenses required for this from the Supplier or a corresponding advance payment if the Supplier does not comply even after BSM has requested rectification within a reasonable period, if the rectification has failed or is otherwise unreasonable for BSM.
12.10 In all other respects, the legal claims of BSM for defective deliveries and services shall remain unaffected; this shall apply in particular to claims for damages and reimbursement of expenses, withdrawal from the contract or reduction in the purchase price for defective goods.
12.11 Acceptance of the delivery or service and payment shall not be deemed an acknowledgement of proper performance.
ordnungsgemäßer Leistung.
13.1 The mutual claims of the contracting parties shall prescribe in accordance with the legal provisions, unless otherwise stipulated below.
13.2 In deviation from Art. 438 para. 1 no. 3 of the German Civil Code, the general prescription period for claims for defects shall be 3 years from the transfer of risk. Insofar as an acceptance has been agreed, the prescription shall begin with the acceptance and shall also be 3 years in the case of Art. 634 a para. 1 no. 1 of the German Civil Code. The three-year prescription period shall apply mutatis mutandis to claims arising from defects of title, whereby the legal prescription period for claims in rem for the surrender of property by third parties (Art. 438 para. 1 no. 1 of the German Civil Code) shall remain unaffected; in addition, claims arising from defects of title shall in no case be prescribed as long as the third party can still assert the right against us, in particular for lack of prescription.
13.3 The prescription periods of the law on sales including the above extension shall apply, to the legal extent, to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular legal prescription period (Art. 195, 199 of the German Civil Code) shall apply, unless the application of the prescription periods of the law on sales leads to a longer prescription period in individual cases.
14.1 Our legally determined recourse claims within a supply chain (Supplier recourse pursuant to Art. 445 a, 445 b, 478 of the German Civil Code) shall accrue to us without restriction in addition to the claims for defects. In particular, we shall be entitled to demand from the Supplier exactly the type of subsequent performance (repair or replacement) that we owe our customer in the individual case. Our legal right of choice (Art. 439 para. 1 of the German Civil Code) is not restricted by this.
14.2 Our claims under Supplier’s recourse shall also apply if the defective goods have been further processed by us or another employer, e.g. by incorporation into another product.
15.1 Insofar as the Supplier is obliged to compensate BSM for any damage to the product in accordance with the Product Liability Act or Art. 823 ff of the German Civil Code, the Supplier is obliged to compensate BSM for any damage incurred or to indemnify BSM against claims for damages by third parties at the first request, insofar as the cause lies within the Supplier’s sphere of control and organization and the Supplier itself would be liable in the external relationship. In the event of contributory negligence or contributory negligence on the part of BSM, the principles of Art. 254 of the German Civil Code shall apply.
15.2 Within the scope of its liability for the cases of damage specified in Clause 15 a) General Terms and Conditions of Purchase, the Supplier is also obliged to reimburse any expenses pursuant to Art. 683, 670 of the German Civil Code and pursuant to Art. 830, 840, 426 of the German Civil Code resulting from a recall action carried out by BSM.
15.3 The Supplier undertakes to maintain a product liability insurance with a lump sum coverage of at least EUR 2.0 million per personal injury/property damage. Unless otherwise agreed in the individual case, this must cover the risk of callbacks. Claims for damages by BSM in excess of the insured amount shall remain unaffected.
15.4 The Supplier is obliged to provide written proof of this insurance coverage upon request. If the Supplier is unable to provide evidence of insurance coverage within 2 weeks, BSM shall be entitled to take out such insurance at the Supplier’s expense.
16.1 BSM reserves all property rights and copyrights to pictures, drawings, plans, calculations, materials, models, designs, samples, tools, devices and other aids, objects or documents of BSM; they may not be made accessible to third parties, reproduced or used for purposes other than those intended by BSM without the express written consent of BSM. They shall be used exclusively for the execution of BSM’s order.
16.2 The parties undertake to treat all commercial and technical knowledge and information which is not in the public domain and which becomes known to them as a result of the business relationship as a trade secret and not to make it available to third parties. These obligations shall not apply if the Supplier discloses the information exclusively to authorized persons who require it for the performance of the contract. These obligations shall also not apply to such information insofar as the Supplier can prove this:
16.3 The Supplier undertakes to exercise at least the same care with regard to the confidentiality of information as he is accustomed to exercising in his own affairs, but in any case, at least the care required in the course of business.
16.4 All objects mentioned above in Clause 16 a) General Terms and Conditions of Purchase shall be insured by the Supplier at its own expense against fire and theft as long as they are in the Supplier’s possession.
16.5 The Supplier undertakes to oblige subcontractors used by him to comply with the above provisions.
17.1 The Supplier shall be liable for all claims arising from the infringement of industrial property rights and applications for industrial property rights of third parties (hereinafter referred to as “Property Rights”) in Germany, in the countries of the European Union, Asia and North America in the event of use of the delivery item or services in accordance with the contract.
17.2 The Supplier shall indemnify BSM and its customers against claims by third parties arising from the infringement of property rights. Any license fees shall be borne by the Supplier.
17.3 These aforementioned obligations shall also apply if the Supplier has not acted culpably, e.g. could not recognize that the products or services supplied by it would infringe property rights.
17.4 The parties undertake to inform each other immediately after risks of infringement and alleged infringements of property rights become known in order to counteract corresponding liability claims.
18.1 If the Supplier delivers under retention of title, ownership of the delivered goods shall pass to BSM upon payment in full. Any extended or expanded retention of title by the Supplier is excluded.
18.2 If BSM provides parts to the Supplier for subcontracting, BSM retains ownership of these. Any processing or transformation by the Supplier shall be carried out for BSM. If goods subject to retention of title are processed separately or inseparably with other items not belonging to BSM, BSM shall acquire co-ownership of the new item in the ratio of the value of BSM’s item to the other processed items at the time of processing.
18.3 Insofar as the Supplier manufactures tools for BSM, they shall become our property and/or that of our customers upon payment in full and shall be marked accordingly by the Supplier.
In the case of longer running contracts for the delivery of goods or for contracts for the provision of services, the following term and termination provisions shall apply:
19.1 Both parties are entitled to terminate such contracts in writing with a notice period of 3 months.
19.2 In cases in which the customer/buyer of BSM cancels its orders with BSM, ordinarily or extraordinarily, BSM is entitled to agree with the Supplier on a different arrangement of such circumstances.
19.3 Either party may terminate a contract at any time for an important reason in writing without observing a notice period. An important reason exists in particular in the following cases:
19.4 In the event of termination or other termination of a contract, the Supplier shall immediately return all items provided to it by BSM, including all drawings and other documents, devices and tools.
20.1 These Terms and Conditions of Purchase and the entire legal relationship between BSM and the Supplier shall be governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG).
20.2 The place of performance for all claims arising from the legal relationships with Suppliers, i.e. for all deliveries, services and payments, shall be the place where the goods are to be delivered or the service is to be rendered in accordance with the order.
20.3 The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the competent court at the registered office of BSM in Bretzenheim, insofar as the Supplier is a registered trader, a legal entity under public law or a special fund under public law. However, BSM is also entitled to sue the Supplier at its place of jurisdiction.
Version 22.05.2023
English 
German 
French 
Italian 
Spanish 
Polish