1.1. The following Terms shall exclusively apply to individuals and legal entities or
incorporated partnerships who, at the conclusion of a transaction, are acting in
the performance of their commercial or self-employed business activity (entrepreneurs
as defined in Section 14 of the German Civil Code [BGB]).
1.2. We order goods or services from entrepreneurs solely on the basis of our following
Terms. These Terms shall also apply to all future orders from a supplier,
without the need for us to refer to them again in each individual case; the latest
version of the Terms is available on www.maxfrank.de. Any deviating terms or
conditions of the supplier’s which we have not expressly accepted shall not
become a part of any contract, even if we have not expressly contradicted them.
If we accept deliveries or services without reservation, this shall not on any
account be regarded as acceptance or approval of any deviating terms or conditions.
2.1. Our offer to conclude a purchase/service contract (order) shall only be binding
on us if submitted in writing (by mail, fax, or e-mail). Verbal agreements shall
only be binding if confirmed by our purchasing department and shall be put
down in writing without delay by the parties’ responsible employees. The same
shall apply to any alterations and/or additions to orders.
2.2. Unless otherwise expressly agreed, we shall be bound by our order for a period
of two weeks after submission of the order. Provided that no change to the order
is necessary on the part of the supplier with respect to quantity, price or delivery
date, we will generally not require a written order confirmation. On our express
demand, however, the supplier shall confirm the order in writing within (2) weeks
or perform delivery without delay and without reservation.
2.3. In the case of devices, a technical description and operating instructions as well
as any other documents necessary to be able to use the devices shall be supplied
free of charge. In the case of software products, this obligation will not be
fulfilled until the complete relevant (system and user) documentation has been
handed over as well. In the case of programs that are specially designed for us,
delivery of the program shall also include the program in source format.
3. Delivery – Delivery Dates – Delay in Delivery
3.1. Each delivery shall be accompanied by a delivery note including our purchase
order number as well as a description of the contents by nature and quantity.
3.2. Any partial deliveries of goods or services shall be contingent upon our prior
3.3. It is your responsibility to make sure that the goods are adequately packed and
safely loaded for transport. Where our orders specify a certain mode of packing,
it shall be your responsibility to meet those specifications.
3.4. It is your responsibility to provide appropriate insurance for the transport of
goods, and you shall provide proof of transport insurance to us upon request.
3.5. Agreed dates of delivery of goods and services shall be binding. In the event of
anticipated or actual delays, you shall immediately notify us thereof in writing.
3.6. If you are in delay, we shall be entitled to exercise our statutory rights. If we
claim damages, you shall be entitled to provide proof to the effect that the
breach of your obligations was due to circumstances beyond your control. If you
still fail to perform delivery of goods or services within a deadline set by us after
the due date, we shall further be entitled to withdraw from the contract. This
right to withdraw shall not be affected by whether or not you were responsible
for the breach of obligations. Any extra costs we may incur due to the delay, in
particular through the necessity to obtain the goods or services in question from
another source, shall be at your expense.
3.7. Until final payment is made, we reserve the right to claim a contractual penalty
as agreed upon for improper performance (Section 341 BGB).
4. Invoices – Payment – Assignment – Set-off
4.1. Unless otherwise agreed between the parties, the following shall apply: The
prices indicated by us in the purchase order shall be binding and delivery shall
be Free Domicile (DDP named place of destination according to INCOTERMS
2010) to the place specified in the order. The place of destination specified shall
also be the place of performance (“seller‘s obligation to deliver“). Any and all
additional costs, e.g. the cost of delivery, packing, transport insurance, etc.,
shall be included in the price. Prices shall be exclusive of VAT.
4.2. Invoices shall be submitted to us under separate cover and must show our
purchase order number (cf. sub-clause 3.1.).
4.3. Unless otherwise agreed in writing, payment shall be effected within 14 days
less 3 % cash discount, or net within 40 days. The period allowed for payment
shall begin on the date on which the invoice is received at the invoice address
specified by us; not, however, prior to receipt of the goods.
4.4. We reserve the right to choose the mode of payment.
4.5. Where payment is made by bank transfer or cheque, the obligation to pay shall
be deemed duly fulfilled as soon as the transfer order has been transmitted to
our bank or when the cheque has been posted to you.
4.6. All risks involved in sending the cheque shall be borne by you. In addition to the
risk of theft and unauthorised cashing, you shall also assume the responsibility
for any and all additional damage incurred by us as a result thereof, in particular
banking fees for stopping cheques.
4.7. The making of any payment shall not be considered an acknowledgement of the
delivery of goods or services as being in compliance with the contract. In the
event of faulty or incomplete delivery of goods or services, we shall be entitled,
irrespective of any other rights, to withhold a reasonable amount of payments
owed to the party in default until such party’s obligations have been properly
4.8. Any assignment of accounts receivable from us to any third party shall be ruled
out. Section 354a of the German Commercial Code [HGB] shall remain unaffected.
4.9. Set-off is only possible against undisputed or legally established claims. This
shall not apply to claims being in a reciprocal relationship. FRANK shall be entitled
to set off any and all of the supplier’s accounts receivable, due or not,
which are owed by Frank or a company of the Frank Group, against accounts
receivable by Frank or any of the companies named. The companies of the
Frank Group are listed at http://www.maxfrank.com/intl-de/kontakt/frank-international.
5. Import and Export Regulations, Customs
5.1. In the case of goods and services delivered from an EU country outside Germany,
the EU VAT ID number has to be indicated.
5.2. Imported goods shall be delivered duty paid. It shall be your responsibility, at
your expense, to make declarations and give information, allow inspections
by customs authorities and provide official certificates as required pursuant to
Regulation (EC) no. 1207/2001.
5.3. You shall provide us with a detailed written notification, free of charge, in the
event of any (re-)exports requiring permission under German, European and US
export and customs regulations as well as export and customs regulations of
the country of origin of the goods or services in question.
6. Safety, Environmental Protection
6.1. Goods and services delivered must be in compliance with the relevant legal regulations,
in particular safety and environmental protection regulations including
the German Hazardous Substances Ordinance, the German Electrical and Electronic
Equipment Act (ElektroG) as well as the safety recommendations of the
competent German expert bodies and expert associations, such as VDE, VDI,
DIN. Relevant authentications, test certificates and documents shall be supplied
free of charge. In effecting your deliveries, you shall act in compliance with the
relevant legal regulations of the European Union and the Federal Republic of
Germany, such as the REACH Regulation (Regulation (EC) No. 1907/2006).
6.2. It shall be your responsibility to be up to date on and comply with relevant
directives and laws regarding restrictions on substances. Furthermore you shall
not use any banned substances. Substances to be avoided or hazardous substances
according to the relevant laws and directives shall be indicated in the
specifications. Where applicable, safety data sheets shall be supplied (at least in
German or English) with the offers and with each first delivery together with the
delivery note. Any indication of violations of substance restrictions or delivery of
banned substances shall be notified to us immediately.
6.3. Compliance with accident prevention regulations when delivering goods or services
shall be your sole responsibility. Any subsequently necessary protective
devices as well as any instructions of the manufacturer shall be supplied free of
6.4. When performing deliveries of goods or services on our premises, you shall furthermore
act in compliance with our instructions on safety, environmental and
fire protection for external persons (as amended), which will be made available
to you upon request.
7. Transfer of Risk, Acceptance, Ownership
7.1. Unless otherwise agreed, the risk shall be transferred to us when delivery is
received at our specified delivery address (DDP named place of destination according
to INCOTERMS 2010). In cases where the contract specifies setup or
installation in addition to delivery, the risk shall be transferred to us upon final
inspection and acceptance. Formal acceptance shall be deemed agreed; operation
or use shall not replace our declaration of acceptance.
7.2. Simple reservation of ownership regarding unprocessed goods will be recognised
by us as far as applicable. Ownership of goods delivered shall pass to us
upon payment of the same. Any prolonged or extended reservation of ownership
shall be ruled out.
8. Inspection of Goods and Notification of Defects
8.1. Incoming goods will be inspected for patent defects. As far as acceptance has
been agreed, there shall be no duty of inspection. Latent defects will be notified
by us as soon as they are discovered in the normal course of business.
8.2. Notification of defects shall be deemed to have been given in time if received
within a reasonable period of time; as a rule, such period of time shall be two
weeks, beginning on delivery of the goods in the case of patent defects, and
beginning on discovery in the case of latent defects.
9.1. Warranty shall be subject to the applicable legal regulations, unless otherwise
agreed in the following:
9.2. During any time in which goods are not in our custody as a result of a claim for
rectification of defects, you shall bear the risk of accidental loss or deterioration.
9.3. If you do not fulfil your duty of rectification within a reasonable period of time
set by us, we shall be entitled to take any necessary measures ourselves, or
have them taken by a third party, at your expense and risk. In urgent cases (in
particular in the event of a risk to operational safety or to prevent extreme damage
or to avoid our own deliveries being delayed) and in order to remedy minor
defects, we shall be entitled, after prior notification of defects and having set a
reasonable deadline for rectification, or after consultation with you, to remedy
defects ourselves or have them remedied by a third party at your expense.
9.4. Notwithstanding Section 442, subsection 1, sentence 2 BGB, we shall be entitled
to unrestricted warranty claims even in the event that a defect remained
unnoticed due to gross negligence at conclusion of contract.
9.5 Any and all costs incurred by the supplier for the purpose of investigating and
remedying defects (including, where applicable, any costs of removal and installation)
shall be borne by the supplier even if it is found that no defect actually
existed. FRANK’s liability for damages in the event of an unjustified demand for
rectification of defects shall remain unaffected; however, FRANK shall only be
held liable if FRANK realised, or did not realise due to gross negligence, that no
9.6. If the supplier fulfils his obligation of rectification by way of replacement, the period
of limitation for the goods delivered as replacement shall start again upon
delivery of the same, unless the supplier has expressly and appropriately stated
to be delivering the replacement only by way of goodwill, to avoid disputes, or
in the interest of continuing the business relationship.
9.7. The period of limitation for our claims regarding defects of quality shall be 36
months as from the transfer of risk according to sub-clause 7.1; the period of
limitation for our claims regarding defects in title shall be ten years as from the
transfer of risk according to sub-clause 7.1.
10. Guarantees – Warranted Qualities
10.1. Where your goods or services shall be in accordance with our plans, drawings
or other special requirements, compliance of the goods or services with such
requirements shall be deemed expressly warranted.
10.2. If warranted qualities are missing, we may choose to withdraw from the contract
or reduce payment and in addition claim damages in either instance.
11. Repeated Impairment of Performance
In the event of repeated defective or delayed delivery of basically the same or similar
goods or services by the same supplier, we reserve the right to withdraw from the
contract, after prior written warning, even in respect of goods or services that the
supplier has yet to deliver to us in future on the grounds of this or any other contract.
General Terms and Conditions of Purchase (“Terms”)
of Max Frank GmbH & Co.KG and Max Frank Pressig GmbH (“FRANK”)
12. Right of Withdrawal due to Lack of Ability to Perform
Where it becomes obvious after conclusion of contract that the performance of our
delivery is jeopardised on account of an unforeseeable impediment which cannot be
overcome using reasonable endeavours, we shall be entitled to withdraw from the
contract. This shall apply in particular in the event of impossibility of performance
on your part or risk to performance due to force majeure, strike or natural disaster.
In the event of an impediment for which we are responsible, we shall not be entitled
13. Technical Documents, Tools, Equipment
13.1. Any technical documents, tools, technical data sheets, manufacturing equipment,
data, etc., provided by us, including all trademarks, copyright and other
intellectual property rights shall remain our property. They shall be returned to
us, together with any and all duplicates made, without delay and without special
request on completion of our order, or at any time upon request; you shall have
no right of retention in this respect. You must not use the aforesaid items for
any purpose other than the execution of the respective order, and you must not
give or make them available in any other way to any unauthorised third parties.
Duplication of the items mentioned shall only be allowed to the extent that is
necessary for executing the order.
13.2. You shall, on a free-of-charge basis, take care of and maintain the aforesaid
items and repair normal wear and tear. If a sub-supplier is commissioned to
manufacture tools and samples in connection with the execution of our order,
any and all claims against such sub-supplier regarding the transfer of ownership
of such tools and samples shall be assigned to us.
13.3. Any technical or other documents, drawings, diagrams, schemata, charts, photographs,
layout templates or other documentations created by the supplier in
connection with the execution of our order – whether on data storage media,
in printed form or as materials for printing preparation or printing – as well as
any and all samples, tools, materials or other means of production shall become
the property of FRANK on being made available. Furthermore, FRANK
shall receive – to the extent allowed by the law – any and all rights regarding the
ownership, use and exploitation of the aforesaid copyrightable works. No extra
remuneration shall be owed by FRANK for the transfer of the aforesaid rights;
such transfer shall be fully included in the prices stated in the purchase orders.
14. Intellectual Property Rights
14.1. You shall make sure that no trademarks, patents, licences or other intellectual
property rights, or third-party applications for intellectual property protection
pending at the time of acceptance of delivery, are violated by the delivery and
the agreed use of the goods and/or services. This will not be verified on our part.
14.2. You shall immediately inform us of any cases of claimed infringement or risk of
infringement which become known to you.
14.3. If the use of deliveries made by the supplier has been prohibited by a court
order, or if in the opinion of either party legal proceedings on the grounds of
infringement of intellectual property rights are imminent, the supplier shall provide
a remedy unless he is not to be held responsible for such infringement.
Such remedy can consist in the supplier procuring the rights at issue to FRANK
or modifying or re-performing his contractual obligations in such a way that
intellectual property rights are no longer violated. If remedy is not provided or
remains unsuccessful, FRANK shall be entitled to withdraw from the contract.
In the event that we are held liable by any third party because you negligently
violated a third party’s intellectual property rights by delivering your goods/
services, you shall, upon our first demand, indemnify us against such claims
and any and all expenses necessarily incurred in connection with being held
liable by such third party and in defending their claims. We will not recognise
any claims of any third party without your written consent, nor will we make any
agreement with the third party in such respect. The period of limitation for such
rights of indemnity shall be 36 months as from the transfer of risk.
14.4. The provisions of sub-clause 14.3. shall not apply where goods or services are
based on drawings, models or any other equivalent descriptions or specifications
provided by us and if it was impossible for you to realise that the products
you developed would infringe on intellectual property rights.
15. Indemnity – Damages – Product Liability
15.1. In the event of claims made on FRANK on product liability grounds, the supplier
shall indemnify us against such claims insofar as the damage has been caused
due to a fault in the goods delivered by the supplier. In cases of liability based
on fault, this shall however only apply if the supplier actually is at fault. Insofar
as the cause of damage lies within the supplier’s sphere of responsibility, the
supplier shall have to prove that the fault lies not with him.
15.2. As part of his obligation of indemnification, the supplier shall assume all the
costs and expenses arising from or in connection with third-party liability claims,
including any recalls made by FRANK. Prior to any recall, FRANK will inform the
supplier, enable him to participate adequately and consult with him on how to
best proceed; this shall not be requisite in cases where notification or participation
of the supplier is not possible due to extreme urgency.
15.3. You shall take out product liability insurance with a minimum cover of €10 million
per event and maintain the same during the duration of the contract; we shall be
entitled to request confirmation of cover from your insurer. This provision shall
not apply in cases where said insurance cover will be out of proportion with any
foreseeable damage; in such cases, sentence 1 shall apply on the understanding
that product liability insurance shall be taken out to provide sufficient cover.
15.4. You shall indemnify us against any and all claims which any third parties – no
matter on what legal grounds – may raise against us in respect of any defect in
quality or in title or due to any other fault in a product delivered by you, and you
shall reimburse to us any and all costs necessarily incurred in asserting our legal
rights in such event.
15.5. In the event that our customer raises claims against us in connection with a
purchase of consumables and those claims are due to a fault in goods delivered
by the supplier, the period of limitation for our rights to damages shall be three
years starting from the date on which the supplier delivered the goods to us.
16. Minimum Wages
16.1 Without our prior written consent, the supplier shall not be entitled to have the
service owed to us performed by any third party (e.g. subcontractors, freelance
16.2. The supplier agrees and confirms that all of his employees are paid at least in
accordance with the provisions of Sections 1, 2 and 20 of the German Minimum
Wage Act [Mindestlohngesetz] as well as any other legal regulations and
collective agreements for the observance of which we are responsible pursuant
to Section 14 of the German Employee Assignment Act [Arbeitnehmerentsendegesetz]
and/or other comparable regulations.
16.3. The supplier shall pay the employees assigned to perform the services ordered
according to the underlying contract at least minimum wages pursuant to the
Minimum Wage Act of 11 Aug. 2014. We shall be entitled, at any time during
the duration of the services ordered, to demand from the supplier written proof
of payment of minimum wages, in which case the supplier shall furnish such
written proof without delay, at the latest however within three working days from
receipt of the demand.
16.4. The supplier shall, upon our first demand, indemnify us against all claims made
in the event of a violation of the provisions of the Minimum Wage Act by the supplier
or any of his subcontractors. Irrespective of any other rights of termination
or withdrawal, we shall be entitled to withdraw from the contract or terminate
the contract with immediate effect if the supplier and/or any of his subcontractors
culpably violated the aforementioned regulations and/or the Minimum
Wage Act of 11 Aug. 2014. The supplier shall compensate us for any and all
damage incurred by us as a result of such withdrawal or termination. Any claims
on the part of the supplier for non-performance shall be ruled out. Otherwise the
consequences of withdrawal or termination shall be subject to the applicable
17. Confidentiality, Title to Products
17.1 All business, accounting or technical documents, information and data, in particular
personal data, in connection with this business relationship, or any other
facts that become known to you as part of this business relationship, shall be
kept secret from any third parties and shall be treated with strict confidentiality.
In your own company, they may only be made available to such persons who
need necessarily be involved in their use and who have also signed a written
declaration of secrecy. They shall remain our exclusive property. Without our
prior express consent, such information must not – except for the purposes of
this contract – be used, reproduced or commercially exploited. You shall treat all
the knowledge, information and data acquired in connection with this contract
confidentially even beyond this contract.
17.2. This obligation to secrecy shall not apply insofar as information, secrets or
know-how are generally known, or become or have become generally known
without your fault, or were already known to you prior to conclusion of this contract,
or have to be disclosed to an authority or another authorised third party
upon their demand.
17.3. Products you have specially made for us in accordance with documents designed
or provided by us, such as drawings, models or other know-how materials,
or according to our confidential specifications, or using equipment designed
or provided by us, must not be used nor disclosed or offered to any third
party without our prior written consent.
17.4. FRANK reserves all rights in information under sub-clause 17.1 (including copyrights
and the right to file applications for industrial property rights, such as
patents, utility models, etc.). Insofar as information under sub-clause 17.1 has
been made accessible to any third parties, this reservation of rights shall also
apply in favour of such third parties.
18. Data Protection
18.1. You acknowledge and agree that we collect, store, process and use personal
data connected to our business relationship with you, and that we transfer such
data to affiliated companies of the Max Frank Group for the purpose of maintaining
the proper course of business and settlement of accounts. We will make
sure that your protectable interests will not be impaired.
18.2. Legal regulations and internal company rules regarding data protection shall be
observed. The supplier shall accordingly oblige his employees, subcontractors
and other persons in any way involved in performing the contract to do so and
shall, on request, provide FRANK with the written record of such obligation.
Insofar as any processing or use of personal data is carried out by way of a processor,
the parties shall, without delay, conclude a data protection agreement
in accordance with the provisions of the German Federal Data Protection Act
19. Code of Conduct
The Code of Conduct of the Federal Association for Materials Management, Purchasing
and Logistics [Bundesverband Materialwirtschaft, Einkauf und Logistik e.V. (BME)]
in the version applicable at the time of conclusion of contract, available at http://
www.bme.de/fileadmin/bilder/foerderpreise/Code_of_Conduct.pdf, shall apply to all
20. Applicable Law
This contract shall be subject to German law. The provisions of the Vienna UN Convention
on the International Sale of Goods (CISG) shall not apply.
21. Place of Performance
Unless otherwise specifically agreed, the place of performance for delivery in each
case shall be the site which placed the order or concluded the contract. The place of
performance for any payments to us shall be Leiblfing, our principal place of business.
22. Place of Jurisdiction
The place of jurisdiction for all disputes arising from contracts with companies, legal
entities under public law or special assets under public law in Germany and abroad
shall be the court having jurisdiction in Leiblfing, our principal place of business. This
shall also apply to any legal action based on a dishonoured cheque or bill of exchange.
This translation is provided for convenience only.
In the event of any discrepancy between the translated version and the German version, the German version shall prevail.