General terms and conditions of purchase
Date: 2023-02-06
In the following the term „MSYS“ is understood to mean UNO MINDA Systems GmbH and all its subsidiaries.
The legal relations between the supplier and MSYS in the field of purchasing (including moulds, tools, other equipment, production material (raw materials, material, parts, components) and services (hereinafter „Delivery“ or „Delivery Item„) by MSYS shall be governed exclusively by the following terms and conditions („GPC“). Supplier’s terms and conditions and deviating agreements shall only apply, if MSYS has acknowledged them in writing. Neither the silence on the part of MSYS nor the unconditional acceptance of the performance or its payment shall be deemed recognition.
The GPC shall only apply if the supplier is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
Individual agreements made in individual cases with the supplier (including collateral agreements, supplements and amendments) shall in any case take precedence over these GPC.
Contract formation and alteration of contract
The individual contract for deliveries or services as well as any changes, additional agreements, termination and other declarations are required in the written form, unless otherwise agreed in this contract or provided for by applicable law.
The supplier shall notify us of obvious errors (e.g. spelling and calculation errors) and incompleteness of the order including the order documents for the purpose of correction or completion prior to acceptance; otherwise the contract shall be deemed not to have been concluded.
If the supplier does not unreservedly acknowledge an order within two weeks (also by shipment of the goods), MSYS is entitled to retract the order at any time, insofar as this has not been aborted anyway.
In case of deliveries of drawing parts, this contract contains the relevant quality assurance guideline of MSYS in its current version. These documents will be made available to the supplier upon request.
Delivery quantities in an individual contract are only for information and do not MSYSe an obligation of MSYS to accept delivery. In this case, the shipments are based on delivery schedules which contain the delivery quantity and the delivery date. Only the delivery schedules are binding for the supplier. Delivery schedules become binding for the supplier, if the supplier does not disagree within two working days after receipt.
Scope of delivery and scope of service / change of scope / spare-parts / sub-supplier
The supplier ensures that all relevant information and conditions, which he needs to fulfill the contract, as well as the use of his deliveries intended by MSYS are known to him in time. Any quotes prepared by the supplier are free of charge for MSYS. The supplier ensures that he has checked the local conditions in detail and has clarified the technical and other regulations which are relevant for the implementation of the contractual services. The supplier has to check any documents presented to MSYS for correctness, feasibility and if possible, the completion of preparatory work by third parties. If the supplier has concerns of any kind, he has to inform MSYS in writing by indicating the reasons and induce an agreement regarding the continuation of the works and/or services.
MSYS is entitled to demand reasonable design and execution modifications of the Delivery Item. The supplier has to conduct the modifications after a reasonable time. Regulations about the effects on additional or reduced costs, as well as delivery dates must be mutually agreed. If there is no agreement after a reasonable time, MSYS is entitled to decide at its own discretion.
The supplier shall bear the procurement risk for his supply / services unless otherwise individually agreed (e.g. limitation to stock).
The supplier ensures, to be able to deliver Delivery Items or spare parts to MSYS for a duration of 15 years after completion of the delivery agreement under reasonable conditions. The supplier carries out active obsolescence management. In the event of a discontinuation of electronic components (PCN), MSYS will inform the supplier of the expected total need for series and spare parts. MSYS and the supplier will then jointly decide whether the discontinued components should be purchased and stored in the appropriate quantity or whether a redesign should take place. The resulting additional costs shall be borne by MSYS.
The supplier may only assign tasks incumbent upon him to sub-suppliers with the prior written consent of MSYS. The supplier shall in any case be responsible for any fault of his suppliers (subcontractors) to the same extent as his own fault, even if and to the extent that the subcontractor does not fulfill any obligation of the supplier towards MSYS.
The supplier guarantees that the goods and services will be manufactured and rendered to MSYS in compliance with all national and regional laws and regulations on occupational health and safety, environmental protection and related areas applicable to the goods and services, the manufacture and the distribution of the goods and services by MSYS. This guarantee remains valid notwithstanding the acceptance or rejection of the goods and services by MSYS.
The supplier undertakes to enter in the International Material Data System all declarable substances used in his products in accordance with the VDA list for declarable substances prior to initial sampling.
The supplier undertakes to supply MSYS only with products that comply with the EU Directive 2000/53/EC of 18.09.2000, taking into account the decision of the European Commission of 27.06.2002 (2002/525/EC). If the supplier supplies products in which substances are processed which fall under the aforementioned EU Directive, the supplier undertakes to expressly inform MSYS of these substances prior to manufacture and delivery.
Prices / conditions of payment
The agreed prices are fixed.
All prices are inclusive of statutory value-added tax, unless this tax is indicated separately.
Unless otherwise agreed in the individual case, the price shall include all services and ancillary services of the supplier (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).
To the extent not otherwise agreed, the payments have to be made within 14 days with a discount of 3%, within 30 days with a discount of 2% or within 60 days without a discount. The deadline starts with the receipt of the contractual service/supply and a proper and verifiable invoice. With acceptance of premature deliveries, the deadline starts with the arranged delivery time. Invoices shall be submitted with the following information: order number, ordered items, assignment, place of unloading, number of the supplier, part number, delivered quantity and single item cost. If required by MSYS, the supplier will accept a credit memo procedure.
In the case of bank transfers, payment shall be deemed to have been made on time if our transfer order is received by our bank before expiry of the payment deadline; we shall not be responsible for delays caused by the banks involved in the payment process.
We do not owe any interest on maturity. The statutory provisions shall apply to default in payment.
The supplier is not entitled to assign claims to which it is entitled against MSYS without our prior written consent or to have them collected by third parties. Should the supplier assign claims or have them collected by third parties without the consent of MSYS, MSYS shall continue to be entitled to make payments to the supplier with discharging effect.
The supplier shall only be entitled to set off claims against MSYS or to assert a right of retention if and to the extent that his claim is undisputed or his counterclaim has become res judicata.
Place and Date of Delivery, Default
Deliveries shall be made in accordance with DAP (valid Incoterms) including packaging and conservation at the place of business of MSYS, unless otherwise specified. The respective place of destination shall also be the place of performance for the delivery and any subsequent performance (obligation to deliver). Each shipment must be reported to MSYS and to the consignee designated by MSYS on the day of delivery. Each delivery must be accompanied by two copies of the delivery note. The delivery note has to include the order, part and supplier number (all predefined by MSYS).
The risk of accidental loss and accidental deterioration of the goods shall pass to us upon delivery at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law governing contracts for works and services shall also apply mutatis mutandis to acceptance. If we are in default of acceptance, this shall be deemed to be equivalent to handover or acceptance.
The statutory provisions shall apply to the occurrence of our default of acceptance. However, the supplier must also expressly offer his services to us if a specific or determinable calendar period has been agreed for an action or cooperation on our part (e.g. provision of material). If we are in default of acceptance, the supplier may demand reimbursement of his additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract relates to an unrepresentable item to be manufactured by the supplier (one-off production), the supplier shall only be entitled to further rights if we have undertaken to cooperate and are responsible for the failure to cooperate.
Agreed dates and deadlines are binding. The date of receipt of the goods or services by MSYS or at the contractually agreed place of delivery shall be decisive for compliance with the delivery date or delivery period. The supplier undertakes to deliver the goods a maximum of two days in advance. The unconditional acceptance of the delayed delivery or service does not constitute a waiver of the claims of MSYS for delays due to the delayed delivery or service.
If the supplier does not provide his service or deliver the goods or does not do so within the agreed delivery period or if he is in default, our rights – in particular to rescission and damages – shall be determined in accordance with the statutory provisions. The provisions in para. 6 shall remain unaffected.
If the supplier is in default, we may – in addition to further legal claims – demand lump-sum compensation for our damage caused by default amounting to 1% of the net price per completed calendar week, but not more than a total of 5% of the net price of the goods / services delivered late. We reserve the right to prove that higher damages have been incurred. The supplier shall have the right to prove that no damage at all or only considerably less damage has been incurred.
In principle partial deliveries are inadmissible, unless MSYS has explicitly agreed to them or they are reasonably acceptable for MSYS.
The supplier has to notify MSYS immediately in written form of a noticeable delay in its service, stating the reasons and the expected exact duration of the delay. The supplier can only rely on causes of delay for which he is not responsible if he has complied with the obligation to notify.
The supplier must inform MSYS about the required official approvals and reporting obligations for the import and use of the Delivery Items.
The supplier is obliged, as far as applicable, to comply with export control laws and regulations. The supplier is obliged to obtain the necessary approvals prior to the transfer of technical information or items to MSYS and to inform MSYS unsolicited of the relevant export control classification number for such technical information and goods (for example US law: ECCN) and any restrictions on their transfer. The supplier undertakes to provide MSYS with all information required to comply with such regulations in individual cases. MSYS is entitled to extraordinary termination of contracts with the supplier, as far as changes in applicable national or international export control laws and regulations or, in the case of MSYS, internal regulations based thereon, make the acceptance of the contractual goods / services or the fulfilment of obligations arising from the contract impossible.
Acceptance of work performances/services
The formal acceptance of works takes place after completion of the work, by MSYS countersigning an acceptance protocol. In the case of services which can no longer be inspected and examined at a later date as a result of further execution, the Supplier shall request MSYS (in writing) to inspect them in good time in. A fictional acceptance by way of silence after an acceptance request of the supplier, by payment or by actual use is excluded.
Approved official acceptance of any kind, in particular acceptances by recognized experts, shall be arranged by the supplier at its own expense before acceptance of the service, unless this service is expressly excluded from the scope of supplies. Official certificates of faultlessness and any official acceptance are to be forwarded to us in good time before acceptance of the work/service.
Retention of Title
MSYS reserves the property and all other rights (such as copyrights) to the information provided by MSYS. Duplications may only be made by supplier with the prior written consent of MSYS. With their completion duplications become the property of MSYS. It is hereby agreed between the supplier and MSYS that the supplier stores the duplications for MSYS. The supplier has to carefully store, maintain and insure the documents and objects as well as duplications made available to him at his expense and, at MSYS’s request, at any time issue or destroy them. The supplier has no right of retention, for whatever reason. The complete return or destruction must be confirmed in writing.
The above provision shall apply mutatis mutandis to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items which we provide to the supplier for manufacture. Such items shall – as long as they are not processed – be kept separately at the supplier’s expense and insured to an appropriate extent against destruction and loss.
Any processing, mixing or combination (further processing) of items provided by the supplier shall be carried out on MSYS’ behalf. The same applies to further processing of the delivered goods by us, so that we are deemed to be the manufacturer and acquire ownership of the product in accordance with the statutory provisions at the latest upon further processing.
The transfer of ownership of the goods to us must take place unconditionally and regardless of the payment of the price. If, however, in individual cases, we accept an offer by the supplier to transfer ownership conditional on the payment of the purchase price, the supplier’s reservation of title shall expire at the latest upon payment of the purchase price for the delivered goods. In the ordinary course of business, we shall remain authorized to resell the goods, even before payment of the purchase price, with advance assignment of the claim arising therefrom (alternatively validity of the simple reservation of title extended to the resale). This excludes all other forms of retention of title, in particular the extended retention of title, the forwarded retention of title and the retention of title extended to further processing.
The supplier will keep the confidential information given to him by MSYS or affiliated companies of MSYS, such as drawings, documents, knowledge, samples, production equipment, models, data media, etc. secret, during and after termination of the contract  and not make them available to third parties (including subcontractors) without written consent from MSYS, and not use or realize such information  for purposes other than those specified by MSYS and return such information to MSYS after termination of the contract. This applies accordingly for duplications.
All data, information and documents that MSYS designates as confidential or whose secrecy MSYS has an obvious interest in shall be deemed confidential. As confidential shall also be deemed without a corresponding designation: (i) all documents and data about customers of MSYS and (ii) all know-how which MSYS discloses or makes available to the supplier in connection with the execution of the order.
This obligation does not apply to information that was already known at the time of receipt and without any obligation to maintain secrecy, or that becomes reasonably known without any obligation of secrecy, which is or becomes generally known – without breach of contract by one of the parties – or in relation to which written permission has been granted for any other use. The supplier may not advertise his business relationship with MSYS without the prior written consent of MSYS.
The supplier shall impose an equal obligation on its employees, workers, consultants and assistants for the duration of the contract and after its termination.
Furthermore, the supplier undertakes with worldwide validity neither to imitate the Delivery Items nor to have them imitated by third parties, nor to manufacture the Delivery Items himself in modified form or have them manufactured by third parties, nor to participate in companies which imitate the Delivery Items or produce them in modified form.
Quality Management
The supplier has to constantly monitor the quality of his services. Before the respective delivery of the Delivery Items, the supplier shall ensure that the Delivery Items intended for delivery are free from defects and that they correspond to the agreed technical requirements and confirm this in writing to MSYS.
Liability for Defects
Our rights in the event of material defects and defects of title of the goods (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 shall be governed by the statutory provisions, unless otherwise provided below.
In accordance with the statutory provisions, the supplier shall be liable in particular for ensuring that the goods have the agreed quality when the risk passes to us. Any product descriptions which – in particular by designation or reference in our order – are the subject matter of the respective contract or which have been included in the contract in the same way as these GPC shall in any case be deemed to be agreements on quality. It makes no difference whether the product description originates from us, the supplier or the manufacturer.
Contrary to § 442 Para. 1 S. 2 BGB, we shall be entitled to assert claims based on defects without restriction even if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.
The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial obligation to inspect and give notice of defects (§§ 377, 381 HGB) subject to the following proviso: our obligation to inspect shall be limited to defects which become apparent during our incoming goods inspection applying external inspection including the delivery documents (e.g. transport damage, wrong and short delivery) or which are identifiable during our quality inspection by random sampling. If acceptance has been agreed, there shall be no obligation to inspect. Otherwise, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later shall remain unaffected. Irrespective of our obligation to inspect, our complaint (notice of defects) shall in any case be deemed to have been made immediately and in good time if it is dispatched within the period of five working days from discovery or, in the case of obvious defects, from delivery.
Subsequent performance shall also include the removal of the defective goods and their reinstallation if the goods have been installed in another item or attached to another item in accordance with their type and intended use; our statutory claim to reimbursement of corresponding expenses shall remain unaffected. The supplier shall bear the expenses necessary for the purpose of testing and subsequent performance even if it turns out that no defect actually existed. Our liability for damages in the event of an unjustified demand to remedy defects shall remain unaffected; in this respect, however, we shall only be liable, if we have recognized or grossly negligently failed to recognize that no defect existed.
Irrespective of our statutory rights and the provisions in paragraph 5, the following shall apply: If the supplier does not fulfil his obligation of subsequent performance – at our option by remedying the defect (subsequent improvement) or by supplying a defect-free item (replacement delivery) – within a reasonable period set by us, we shall be entitled to remedy the defect ourselves and demand reimbursement from the supplier of the expenses required for this or an appropriate advance payment. If subsequent performance by the supplier has failed or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the supplier of such circumstances immediately, if possible in advance.
The supplier shall indemnify MSYS against material or legal defects of the Delivery Items from any existing claims of third parties, unless he is not responsible for the defect. The supplier shall indemnify MSYS against claims of third parties due to faulty delivery or faulty Delivery Items if and insofar as the damage was caused by a defect in the Delivery Item delivered by the supplier. In this context, the supplier is also obliged to reimburse any expenses arising out of or in connection with any recall action or any other deleterious or preventive measures taken by a customer of MSYS. In this respect, the supplier waives any objection of limitation against MSYS, unless MSYS itself can invoke limitation of action.
In addition, we shall be entitled to reduce the purchase price or withdraw from the contract in the event of a material defect or defect of title in accordance with the statutory provisions. In addition, we shall be entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.
If the supplier makes use of the provision of services by third parties, in particular if he does not produce Delivery Items himself, but obtains them from third parties, he shall be liable for these as well as vicarious agents.
Supplier Recourse
We are entitled to the legally determined recourse claims within a supply chain (supplier recourse in accordance with §§ 445a, 445b, 478 BGB) without restriction and in addition to the claims based on defects. In particular, we shall be entitled to demand from the supplier exactly the type of subsequent performance (rectification or replacement delivery) which we owe to our customer in individual cases. Our statutory elective right (§ 439 para. 1 BGB) is not restricted by this.
Before we acknowledge or fulfil a claim for defects asserted by our customer (including reimbursement of expenses pursuant to §§ 445a para. 1, 439 para. 2 and 3 BGB), we shall notify the supplier and request a written statement, briefly explaining the facts of the case. If a substantiated statement is not made within a reasonable period and no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the supplier shall be responsible for providing proof to the contrary.
Our claims arising from supplier recourse shall also apply if the defective goods have been further processed by us or another entrepreneur, e.g. by installation in another product.
Product Liability
If MSYS is prosecuted by third parties as a result of a defective contractual product due to domestic or foreign provisions on product liability, the supplier shall indemnify MSYS against such claims and shall compensate MSYS for any resulting damages (including reasonable legal defense costs). If the defect of the contractual product is due to a written instruction or order of MSYS, the obligation of the supplier to indemnify shall not apply.
Within the scope of his obligation to indemnify, the supplier shall reimburse expenses in accordance with §§ 683, 670 BGB which result from or in connection with a claim by third parties, including recall measures carried out by us. We shall inform the supplier – as far as possible and reasonable – of the content and scope of recall measures and give him the opportunity to comment. Further legal claims remain unaffected.
The limitation period for warranty claims shall be at least 36 months, unless longer periods are provided for by law or other agreements. If the Delivery Item is used by MSYS in products (original parts or spare parts) intended for motor vehicles, the following longer limitation period shall also apply: 36 months from the first registration of the vehicle or from the installation of spare parts, at the most 60 months from delivery. In the event of subsequent performance, the period shall be extended by the period in which the Delivery Item cannot be used in accordance with the contract. The same periods shall apply to subsequent performance. The limitation period for claims due to defects shall commence at the earliest two months after the claims of the end customer have been fulfilled, but shall end at the latest 60 months after delivery to MSYS.
Without prejudice to any other agreements, MSYS receives full or co-ownership to the extent that MSYS participates in the proven costs for tools for the production of the Delivery Item. The tools will transfer to MSYS (joint) ownership upon payment. They remain with the supplier on loan. The supplier is only authorized with approval from MSYS to actually or legally dispose of the tools, to relocate their location or to render them permanently inoperative.
The tools shall be marked by the supplier as MSYS (co-)ownership. The supplier is obliged to draw up a list of the tools (co-)owned by MSYS in accordance with MSYS’s specifications and to keep it up to date and to allow MSYS to inspect them at any time during normal business hours. The Supplier shall bear the costs for maintenance, repair and replacement of the tools. Replacement tools shall be the property of MSYS in accordance with MSYS’s share of the original tool. In the event of co-ownership of a tool, MSYS shall be entitled to a pre-emptive right to the co-ownership share of the supplier. The supplier shall use tools which are (co-)owned by MSYS exclusively for the production of the Delivery Items.
The supplier must return the tools to MSYS immediately upon request after completion of the delivery or at any time upon first request. In the case of tools co-owned by MSYS, MSYS shall reimburse the supplier for the current value of the supplier’s co-ownership share after receipt of the tools. Under no circumstances shall the supplier be entitled to a right of retention. The supplier’s obligation to surrender shall also apply in the event of a substantial impairment of the supplier’s financial situation or in the event of a longer-term interruption of supply. The supplier must insure the tool to the agreed extent and, if no agreement has been made, to the usual extent.
Long-term inability to deliver
In case of long-term inability to deliver or a significant impairment of the financial situation of the supplier, MSYS is entitled to resign from the contract regarding the not yet fulfilled part of this contract. If the supplier is affected by any of the above events the supplier will do its utmost to assist MSYS in transferring the production of the Delivery Item to MSYS or a third party, including the licensing of industrial property rights necessary for production under conditions customary in the industry.
Intellectual Property
The result of the agreed work and the delivery with respect to the tasks specified in the order documents or the contract belongs solely to MSYS; MSYS has the exclusive, irrevocable right to use the result of the agreed work. In particular, MSYS is exclusively entitled to assign rights of use related to the result to third parties. The result consists of all findings found by the supplier in the execution of the work and stored or recorded in records, descriptions, test arrangements, models, devices or installations.
It shall be presumed that all inventions in technical connection with the tasks specified in the order documents or the contract which were made by employees or subcontractors of the supplier after the date of the supplier’s offer or after a purchase order letter from MSYS or the contract date, whichever is earlier, are based on the agreed work and are due to MSYS, unless the supplier proves the contrary.
As far as the result includes proprietary rights or know-how of the supplier, which the contractor already possessed prior to conclusion of the individual contract, MSYS receives a non-exclusive right of use unlimited in time, place and subject matter. This right of use includes the right to sublicense to third parties.
The supplier warrants that it will not commit any acts or omissions which, regardless of the form of participation, could lead to disciplinary action or criminal prosecution, in particular for corruption or breach of antitrust or competition law, against the supplier, against persons employed by the supplier or against third parties commissioned by the supplier (hereinafter referred to as „breach“ or „infringements„). The supplier shall be responsible for taking appropriate measures to avoid such violations. In particular, the supplier shall obligate the persons employed by it or third parties commissioned by it to do so accordingly and provide comprehensive training with regard to the avoidance of violations.
The supplier undertakes, at MSYS‘ written request, to provide information on the aforementioned measures, in particular on their content and implementation status. For this purpose, the Supplier shall completely and truthfully answer a questionnaire provided by MSYS for the purposes of self-disclosure and provide MSYS with related documents.
The Supplier shall inform MSYS immediately of any infringement or of the initiation of official investigation proceedings due to an infringement. In addition, MSYS shall be entitled to demand information in written form about the infringement and the measures taken to remedy and prevent it in the future as well as immediate cease and desist in the event of indications of an infringement by the supplier.
In the event of a breach of one of the above provisions, MSYS is entitled to demand from the supplier the immediate omission and the reimbursement of all damages caused by the breach at MSYS and / or to terminate the individual agreements in writing without period of notice. The supplier will release MSYS against all third-party claims and liabilities towards third parties arising from a breach of one of the abovementioned obligations on the part of the supplier or its subcontractors used in each case.
In the case of a proven culpable antitrust violations in the form of core restrictions, which means in the case of price, submission, quantity, quota, area or customer agreements by the supplier, the amount of the damages shall be 10% of the net sales made with the cartel-related products or services of the supplier with MSYS before MSYS becomes aware of the breach. The proof of lower damages or the absence of damage by the supplier remains unaffected. This also applies to the assertion of higher damages as well as other contractual or legal claims by MSYS.
These GPC and the contractual relationship between MSYS and the supplier shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
If the supplier is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising from the contractual relationship shall be Ingolstadt. If the supplier is an entrepreneur within the meaning of § 14 BGB, the same shall apply. In all cases, however, we shall also be entitled to take legal action at the place of performance of the delivery obligation in accordance with these GPC or a prior individual agreement or at the supplier’s general place of jurisdiction. Prior statutory provisions, in particular regarding exclusive competence, shall remain unaffected.
Should a provision be or become ineffective, this shall not affect the validity of the remaining provisions. The parties are bound, in the context of reasonableness, in good faith, to replace ineffective provisions with effective regulations that are economically equivalent.
The German version of these GPC shall be binding.