a) If and insofar as not otherwise regulated in these GPC, the rights and obligations of the parties in the event of material defects or defects of title inherent in the contractual products or services shall be determined in accordance with the statutory provisions.
b) CMC shall only randomly inspect the delivered contractual products or the rendered services within the scope of its incoming goods inspection or in the course of the acceptance of services for identity, delivery quantity and obvious transport damages. CMC shall not be obligated to perform any further incoming goods inspections, quality inspections or other inspections vis-à-vis Supplier. In this respect, CMC shall be exempt from any statutory duties of inspection and notification of defects vis-à-vis the supplier. The incoming goods inspection or acceptance of services carried out by CMC shall not release the Supplier from its obligation and sole responsibility for the quality control of the contractual products and services in accordance with clause 5.c) of these GPC.
c) CMC shall give notice of any identity errors, quantity discrepancies or obvious transport damage detected during the incoming goods inspection or acceptance of performance within the reasonable period of time. In this respect, the supplier waives the objection of delayed notification of defects.
d) CMC shall give notice of any defects found within the scope of test reports provided to Supplier in the form of complaints or in any other appropriate form. Incoming notifications of defects shall be checked and answered by the supplier without delay. If the Supplier does not object to the content of a notice of defects in writing within 5 (five) working days of receipt, the content of the notice of defects shall be deemed accepted by the Supplier.
e) If contractual products or services do not meet the requirements of the order, esp. defective in materials or workmanship, CMC may, at its option, proceed as follows and Supplier shall, at CMC’s option, do any of the following: (1) CMC may (1a) reject defective Contract Products or Services, return defective Contract Products or Services to Supplier, at Supplier’s expense, and require replacement delivery or or (1b) cancel the Purchase Order; or (2) CMC may require Supplier to inspect the defective Contract Products or Services and (2a) repair or rework them, or (2b) remove them and replace them with defect-free new or repaired Contract Products or Services. If CMC elects (1a), (2a) or (2b) and Supplier fails to promptly inspect, repair or remove and replace the Contract Products or Services upon request, or if such repair by Supplier is impossible or not commercially reasonable, CMC may itself scrap or cause to be scrapped, repair or replace, and repair or replace such defective Contract Products or Services. In any case CMC may claim damages from Supplier.
f) The costs and damages to be reimbursed by Supplier in the event of material defects or defects of title shall include in particular costs in connection with personal injury, costs of remedying defects as well as the internal expenses of CMC required for this purpose, esp. replacement, dismantling and installation costs, transport costs as well as any attorney’s fees and court costs.
g) If and to the extent not otherwise provided below, Supplier’s liability for defects shall expire 36 (thirty-six) months after delivery to CMC or acceptance of the services rendered. If the contractual products are firmly connected to a building or if it is a matter of an object which is used for a building in accordance with its usual use and causes its defectiveness, the warranty period shall be 5 (five) years from acceptance by the end customer. For this 5 (five) -year period, it is therefore the intended purpose that matters and not whether the contractual products or services used for the construction become essential components of the land or construction.
11. CMC Code of Conduct for Suppliers
a) The supplier undertakes to comply with our Code of Conduct for Suppliers. The Code of Conduct for Suppliers is published at www.hartmann.info.
b) The supplier undertakes to take appropriate measures to ensure that the employees of suppliers are aware of and observe the minimum requirements of our Code of Conduct for Suppliers (e.g. through internal compliance programs by the supplier).
c) The Supplier undertakes to effectively communicate our Supplier Code of Conduct to its suppliers, subcontractors and service providers when awarding CMC-relevant contracts and to demand compliance with it by these third parties accordingly. In the event of rejection or non-compliance by such third parties, Supplier shall promptly notify CMC in writing.
d) In the event of serious violations of our Supplier Code of Conduct, CMC shall be entitled to terminate the respective purchase order extraordinarily and with immediate effect.
12. Termination of contract
a) Until complete delivery of the contractual products or complete performance of the services, CMC may terminate the respective order at any time. If CMC terminates the contract, Supplier shall be entitled to claim the agreed purchase price in the case of contractual products or the corresponding service fee in the case of services (pro rata temporis); in any case, however, Supplier shall be entitled to deduct the expenses saved as a result of the termination of the order. Furthermore, any claims of the Supplier in connection with an early termination, esp. Claims for performance, loss of profit or damages, unless expressly stated otherwise in these GPC, are excluded.
b) CMC may terminate an order that has not yet been completely fulfilled extraordinarily and with immediate effect without the Supplier being entitled to a corresponding purchase price or service compensation pursuant to Section 12.a) of these GPC, in particular. if (1) the Supplier is in default with a delivery or performance of a service, (2) the Supplier becomes insolvent or liquidated or enters into corresponding judicial or extrajudicial composition negotiations with its creditors, or (3) in the case of Clause 11.d) of these GPC.
Supplier shall not transfer or assign the rights and obligations under the Purchase Orders to any third party without CMC’s prior written consent.
14. Industrial property rights and copyrights
a) Unless absolutely necessary for the manufacture of the contractual products or the performance of the services, Supplier shall not be entitled to use CMC’s patents, trademarks, designs, product names, registered designs and utility models without CMC’s prior written consent. Any reference to Supplier’s cooperation with CMC requires CMC’s prior written consent.
b) Unless expressly stated otherwise in the order, the supplier hereby assigns all intellectual property rights (patent rights, trademark rights, utility model rights, design rights, registered design rights, etc.) to the “results” of a service (e.g. findings, designs, know-how, programs, processes, etc.), insofar as these arise in the course of the provision of services and irrespective of whether these are capable of being protected by property rights or not, exclusively and without restriction (in terms of time, content, territory) to CMC Consumer Medical Care GmbH. CMC hereby consents to such transfer. The transfer of results is settled by the initial order of a service and the corresponding payment. Based on the results, CMC esp. shall be entitled to apply for and pursue industrial property rights in Germany and abroad in its own name and at its own expense and also to drop such rights at any time. Upon CMC’s request, Supplier shall immediately transfer to CMC, free of charge, any inventions that are capable of being protected by property rights and that are made by its employees in the course of the performance of an order, whereby Supplier shall ensure the right of disposal for this purpose at its own expense. To the extent that copyrights to the Results arise, Supplier hereby grants CMC, free of charge, the exclusive copyrights to the Results, unrestricted as to territory, time and content, in all present and future forms of use. This applies esp. also for copyrighted computer programs (in object and source code). CMC is esp. entitled to reproduce all results without the consent of the Supplier, to transfer them to image, sound and data carriers, to process, edit, transform or translate them and to exploit and distribute them in modified form or in the original.
c) To the extent that results have arisen prior to the commencement of the performance of a Purchase Order or during the performance of services under a Purchase Order but independently thereof, such results shall be called “Non-Contractual Results”. A Party’s ownership of its Non-Contractual Results shall not be affected by these GPC or by any Purchase Order. Supplier shall, however, grant CMC an irrevocable, non-exclusive right of use free of charge, unlimited in terms of person, space, time and content, to Non-Contractual Results as well as to patents and rights of use to be contributed, to the extent that their use is expedient and necessary for the contractual use of the contractual products or services.
d) Supplier shall be liable for the freedom of the results from property rights and rights of use of third parties and undertakes to indemnify and hold CMC harmless from and against claims of third parties due to the infringement of property rights or rights of use by their contractual use. Furthermore, in this case Supplier shall, at CMC’s option and at its own expense, procure for CMC the right to further use or modify the results in such a way that the infringement of the property right or right of use no longer exists. The above provision shall also apply to Non-Contractual Results, provided that they are used by CMC in accordance with Section 15.c) of these GPC.
a) The business and trade secrets of the respective other party obtained through the cooperation, including in particular. including specifications and technical documents made available to the supplier by PHAG, shall be kept secret and shall not be disclosed to third parties without written permission. The parties undertake to treat as confidential all commercial or technical details which are not in the public domain and which become known to them as a result of the business relationship, not to make them available to third parties and not to use them for their own business purposes.
b) This obligation shall not apply to documents and knowledge which are generally known or which were already known to the receiving party at the time of receipt without the receiving party being obliged to maintain secrecy, or which are developed by the receiving party without exploitation of documents or knowledge to be kept secret. This obligation shall also not apply if the receiving party is obliged to disclose by official or court order.
(c) CMC and its Affiliates shall not be third parties for purposes of this Section 16 to the extent that they adopt the obligations contained herein.
16. Safety declaration
a) CMC is an “Authorized Economic Operator” (hereinafter referred to as “AEO”).
b) Unless Supplier is an AEO or has applied for AEO certification, Supplier warrants that Supplier warrants that (1) Contract Products produced, stored, transported, delivered to a CMC designated point of delivery, or accepted by CMC pursuant to a Purchase Order will be produced, stored, processed, and loaded at secure facilities and secure handling locations, and that such Contract Products will be protected from unauthorized access during production, storage, processing, loading, and transportation, (2) the personnel employed in the production, storage, processing, loading, transportation and receipt of such goods are reliable, and (3) subcontractors acting on behalf of Supplier are informed that they must also take measures to secure the aforementioned supply chain.
a) These GPC replace all previous GPC of CMC that have the same subject matter and are valid in the respective current version.
b) Transmission by fax or e-mail shall be deemed compliance with the written form.
c) The parties agree that documents in electronic form are equivalent to paper form and that they will not dispute the authenticity or accuracy for the sole reason that the documents are presented in electronic form and not in paper form.
18. Severability clause
Should any provision of the order or of these GPC be wholly or partially void, invalid or for any other reason unenforceable, this shall not affect the validity or enforceability of the remaining provisions. The parties undertake to agree, in place of the (partially) invalid provision concerned, on a provision that comes as close as possible to its meaning and ensures a corresponding economic success.
19 Applicable law, place of jurisdiction
a) These GPC as well as orders shall be governed exclusively by German law to the exclusion of the conflict of laws provisions of German private law. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
b) For all disputes arising from or in connection with an order, the Regional Court of Munich I in Germany shall generally have jurisdiction. CMC shall also be entitled to assert its rights in court at Supplier’s registered office or any other court having subject-matter jurisdiction.