General Terms and Conditions of Purchase
1. Scope
1.1 Any sale and delivery of goods and services by the Supplier to Zeiss shall be subject to the Terms and Conditions set forth herein to the extent no other agreements have been explicitly made.
1.2 Supplier’s general terms and conditions that are inconsistent with the Terms and Conditions set forth herein shall only be applicable to the extent Zeiss has explicit approved in writing.
2. Orders
2.1 Orders by Zeiss and any changes or additions to the orders must be made in writing or text form.
2.2 Zeiss shall be entitled to cancel orders free of charge if Supplier does not confirm an order in unmodified form within two weeks after receipt.
3. Time-limits, consequences of delay
3.1 Agreed time-limits for deliveries of goods and services shall be binding. If delays are expected or occur Supplier shall immediately notify Zeiss in writing or in text form.
3.2 If Supplier fails to deliver or perform within an additional reasonable grace period set by Zeiss, Zeiss shall be entitled to refuse acceptance, rescind the contract and/or demand compensation. Zeiss shall be entitled to rescind the contract even if the delay was not the fault of Supplier. Supplier shall bear any additional costs incurred by Zeiss because of Supplier’s default, especially those resulting from the necessity to purchase from third parties instead.
3.3 The right to demand an agreed contractual penalty for inappropriate performance (§ 341 BGB – German Civil Code) shall be reserved for Zeiss until the final payment.
4. Prices
Prices shall be fixed prices. They shall include all expenses in connection with the goods and services provided by Supplier.
5. Execution, delivery
5.1 Supplier may only subcontract with the consent of Zeiss, unless such contracts are merely for the supply of standard parts. Delivery call orders shall be binding with regard to the nature and quantity of the goods ordered and the delivery time. Part-deliveries shall require the consent of Zeiss.
5.2 All deliveries must be accompanied by a delivery note stating the Zeiss order number as well as details of the nature and quantity of the contents.
5.3 Deliveries shall generally include customary one-way standard packaging. If reusable packaging is used, it shall be provided on loan. Return of the reusable packaging shall be carried out on Supplier’s account and risk. If as an exception Zeiss takes over packaging costs, these costs shall be calculated on basis of verifiable net costs. The economical use of resources and energy shall be respected at any time.
5.4 In the event that equipment is delivered, a technical description and instructions for use shall be included free of charge. Where applicable technical data sheets regarding the energy efficiency shall be included. In case of software products, the delivery obligation shall only have been met once all the (systems and user) documentation has also been delivered. For software that is specifically developed for Zeiss, the source code shall also be delivered.
5.5 When Supplier is delivering goods or providing services on Zeiss’ premises Supplier shall obey the directions for non-employees concerning security, environmental- and fire protection and efficient use of energy currently in force.
6. Invoices, payments
6.1 Invoices shall be sent by the Supplier to Zeiss separately and shall state Zeiss’ order number.
6.2 Payments by Zeiss shall be due 60 days after receipt of the goods and Supplier’s invoice or at Zeiss’ choice within 14 days with a 3% discount. Payment shall be deemed to have taken place on the day Zeiss’ bank has received the transfer order.
6.3 Payments shall not be deemed as acknowledgement that the good or service is in accordance with the contract. In the event that a good or service is defective or incomplete, Zeiss shall be entitled, without prejudice to Zeiss’ other rights, to withhold an reasonable amount of payments with regards to debts based on the business relationship until Supplier has performed in accordance with its contractual obligations.
6.4 The cession of Supplier’s claims against Zeiss to third parties shall be excluded.
7. Compliance with applicable laws and regulations
7.1 Supplier shall be obliged to comply with all applicable laws and regulations, including but not limited to such laws and regulations relating to workplace and consumer safety and environmental protection. Supplier shall indemnify and hold Zeiss harmless from any and all claims by third parties resulting from Supplier’s failure to comply with the applicable laws and regulations.
7.2 Supplier shall be obliged to comply with the currently applicable regulations regarding restrictions on hazardous substances and not to use banned substances. Supplier shall specify all substances to be avoided and all dangerous substances and submit safety data sheets (at least in German or English) with Supplier’s offers and with the delivery note of Supplier’s first delivery. If Supplier has any evidence that its delivery has violated restrictions on substances or contained banned substances Supplier shall be obliged to immediately inform Zeiss.
7.3 With respect to deliveries and the performance of services Supplier alone shall be responsible for compliance with regulations for the prevention of accidents. Any necessary safety equipment and manufacturer’s instructions shall be supplied free of charge.
8. Import and export provisions, conflict minerals
8.1 For goods and services from a country (other than Germany) that is within the EU, the EU value added tax identification number shall be quoted. In case Supplier is located in an EU-member country, imported goods shall be delivered to Zeiss duty paid if not expressly agreed otherwise.
8.2 Supplier shall comply with all export regulations (especially the export control and customs regulations) applicable in the country of destination and at Supplier’s seat and – where applicable - the United States of America. Supplier shall clearly show the corresponding classification (Export Control Classification Number) as well as the applicable statistical product number (HS Code) and the country of origin in the documentation (shipping note, invoice, etc.) provided for all deliverables that are subject to export licenses or US (re-)export regulations. Supplier shall be obliged to provide at its own expense the required declarations and information under Regulation (EC) No. 1207 / 2001, allow checks to be performed by customs officials and furnish the requisite official letters of confirmation.
8.3 Where goods and services to be delivered to Zeiss involve technologies in terms of technical knowledge, which are subject to US (re-)export regulations (EAE, ITAR), the European Dual Use regulation or to the German Export Control List, Supplier shall be obliged to inform Zeiss in writing about this circumstance.
8.4 Supplier has implemented reasonable measures to ensure that its goods and services are in compliance with the requirements for use of so-called conflict minerals (e.g. tantalum, tungsten, tin or gold) under Section 1502 of the Dodd-Frank Act; the materials Supplier delivers to Zeiss shall not contain conflict minerals that directly or indirectly finance or benefit armed groups in the Democratic Republic of the Congo or adjoining countries.
9. Passage of risk, acceptance, title
9.1 Irrespective of the agreed price terms the risk passes to Zeiss in case of delivery without installation or assembly upon receipt at the delivery address provided by Zeiss and in the event of delivery with installation or assembly upon successful completion of the acceptance by Zeiss. Commissioning or use shall not replace the declaration of acceptance by Zeiss.
9.2 Zeiss shall acquire property of the delivered goods after payment. Any elongated or extended retention of title shall be excluded.
10. Obligation to examine goods and notification of defects, expenses
10.1 Examination of incoming goods will take place with regards to obvious defects. Hidden defects will be notified as soon as they are detected according to the circumstances of the orderly course of business. Supplier waives the objection of delayed notification for all defects notified to Supplier within 14 days after detection.
10.2 If Zeiss returns defective goods to Supplier Zeiss shall be entitled to debit back to Supplier the invoice amount paid plus a lump sum for expenses of 5% of the price of the defective goods. Zeiss reserves the right to proof higher expenses. Supplier’s right to proof lower or no expenses shall be reserved.
11. Warranty of defects of quality and title
11.1 Defective deliveries must be replaced immediately by deliveries that are free from defect, and faulty services must be repeated faultlessly. In the event of development or design engineering defects Zeiss shall be entitled to immediately assert the rights provided for under section 11.3.
11.2 Supplier shall require the consent by Zeiss to repair defective goods or services. Supplier shall bear the risk of loss during the time in which the good or service to be delivered is not in the possession of Zeiss.
11.3 If Supplier fails to remedy the defect within an additional reasonable period of grace that Zeiss has set Zeiss shall be entitled at its own discretion to rescind the contract or reduce remuneration and additionally in either case to demand compensation of damages.
11.4 In urgent cases (especially where operating safety is in jeopardy or for the purposes of preventing an exceptionally high damage or loss), for the removal of insignificant defects and in the event that Supplier is in default of remedying a defect, Zeiss shall be entitled, after notifying Supplier and after a reasonably short period of grace has expired, to remedy the defect and any resultant damage or loss by itselve or through third parties at Supplier’s expense. This shall also apply if Supplier delivers the good or service late and Zeiss has to remedy defects immediately so that Zeiss does not miss its own delivery deadlines.
11.5 The period of limitation for claims for defects of quality and defects of title shall be 36 months as from the passage of risk in accordance with section 9.1. The expiry of the period of limitation shall be suspended from the date of notification of defects until Zeiss’ claim for defects has been fulfilled.
11.6 If Supplier has to deliver or perform in accordance with Zeiss’ plans, graphs or other specific demands, Supplier expressly guarantees the conformity with Zeiss’ demands. If delivery or performance deviates from the demands Zeiss shall immediately have the rights under section 11.3.
11.7 Zeiss’ statutory rights shall in any case be reserved.
12. Repeated default
If, after receipt of a warning letter by Zeiss, Supplier is again late in supplying essentially identical or similar goods or services, or such goods or services are again defective, Zeiss shall immediately be entitled to rescind the contract. In this case Zeiss shall be entitled to rescind contracts with regards to future delivery of goods and services on basis of this or another contractual relationship, too.
13. Indemnification in the event of defects
Supplier shall indemnify Zeiss against all claims raised against Zeiss by third parties –for whatever legal reason– due to a defect of quality or title or another defect of a product delivered by Supplier and shall also reimburse Zeiss’ expenses necessary for the defense against the claims.
14. Technical documentation, tools, means of production
14.1 All technical documents, tools, in-house standard sheets, means of production, etc., that Zeiss provides shall remain the property of Zeiss; all trademark, copyright or other property rights shall remain with Zeiss. They, together with all duplicates that Supplier may have been made, must automatically be returned to Zeiss as soon as the order has been executed. Supplier shall not be entitled to assert a right of retention in this respect. Supplier may only use the said objects to execute the order. Supplier may not pass them on, or make them otherwise accessible, to unauthorized third parties. The said objects may only be duplicated in so far as it is necessary for the execution of the order.
14.2 In the event that Supplier wholly or partly creates the objects mentioned in sentence 1 of section 14.1 for Zeiss at the expense of Zeiss, section 14.1 shall apply accordingly. Zeiss shall own the objects on a pro rata basis according to its share of the costs of manufacture, and Supplier shall keep these objects safe for Zeiss free of charge; Zeiss may, at any time, acquire Supplier’s rights in respect of the object by compensating for expenses that have not yet been amortized and reclaim the object.
14.3 Supplier shall be obliged to service and maintain the aforementioned objects as well as to mend defects caused by normal wear and tear at its expense. If Supplier, in order to execute the order, after prior consultation with Zeiss at the cost of Zeiss subcontracts the production of samples and tools to a third party Supplier shall cede to Zeiss Supplier’s claims for cession of property in those tools and samples against the subcontractor.
15. Provision of materials
15.1 Materials that Zeiss provides shall remain the property of Zeiss. Supplier shall store them free of charge with due care and diligence. Supplier shall keep them separate from its property and mark them as the property of Zeiss. They may only be used to implement the order for Zeiss.
15.2 In the event that Supplier processes or transforms the materials provided, this shall be done for Zeiss. Zeiss shall become the direct owner of the resulting new objects. If the materials provided only constitute a part of the new objects Zeiss shall be entitled to ownership of the new objects on a pro rata basis according to the value of the materials provided and contained therein.
16. Confidentiality
16.1 Supplier shall be obliged to handle confidential and not pass on to third parties all non-evident commercial and technical data that Supplier becomes known to through the business relationship with Zeiss.
16.2 The prior written consent of Zeiss shall be required for the manufacture for third parties and exhibition of products manufactured specifically for Zeiss, especially those made according to drawings and manufacturing specifications of Zeiss, for publications relating to ordered goods and services and for references to this order vis-à-vis third parties.
16.3 Zeiss points out that personal data in relation to the contractual relationship may be stored by Zeiss and may be transferred to companies associated with Zeiss in the Carl Zeiss group.
17. Miscellaneous
17.1 The place of performance shall be the given delivery address.
17.2 The place of jurisdiction, provided that Supplier is a merchant, a legal person under public law or a special fund under public law, shall be the place of business of the Carl Zeiss group company using these general terms and conditions. However, Zeiss may also take legal action against Supplier at Supplier’s place of business.
17.3 Governing law shall be the law of Germany with the exclusion of the international conflict of laws provisions thereof and with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). 17.4 Should any of the clauses of these General Terms and Conditions be wholly or partially invalid or void, the validity of the remaining clauses or parts thereof shall not be affected.