General terms and conditions of Pohlig GmbH
Section 1 Scope
The following terms and conditions shall apply to all agreements entered into by Pohlig GmbH (hereinafter: "Pohlig") regarding the delivery and maintenance of movable property, in particular the manufacture or maintenance of orthopaedic medical devices (hereinafter "medical devices") and medical supplies, unless Pohlig is bound by different contractual or statutory provisions. Opposing contractual terms and conditions of the buyer shall apply only if Pohlig agrees to them expressly.
Section 2 Quotes, entering into a contract, written form, design changes
1. Any quotes drawn up by Pohlig shall be non-binding unless expressly designated or agreed as binding. The parties first enter into a contract with each other when the buyer places the order and Pohlig confirms said order in writing, or otherwise as soon as the buyer or user of the medical device is notified that work on the medical device has been completed.
2. Orders and declarations of acceptance, plus any agreements or collateral agreements entered into prior to or concurrently with the contract, must be made in writing in order to take effect. This shall apply in particular to agreements regarding the performance of the order.
3. When executing the order, Pohlig reserves the right to use new design and construction options made possible by changes to basic technology, new scientific insights or improvements to manufacturing technology, provided such changes have no adverse effects on the medical device ordered. Pohlig is not obliged to implement such changes in medical devices that were ordered or delivered previously.
Section 3 Pricing, handover, passing of risk, terms of payment, right of retention, offsetting
1. Unless a different binding agreement has been made, the agreed prices shall not include packaging and shipping, nor expenses incurred by the buyer for the individual fitting of the medical device. The manner of delivery and transfer of the medical device to the buyer shall be specified by Pohlig.
2. If the medical device needs to be fitted individually to the user, Pohlig shall inform the buyer thereof before or when entering into the contract. Subject to statutory obligations to the contrary, Pohlig will perform individual fittings only at its headquarters or, alternatively, at a branch office. For this purpose, Pohlig will schedule a fitting appointment with the user of the medical device and will notify the buyer of said appointment. If the user of the medical device fails to attend the appointment, Pohlig will schedule a second fitting within a reasonable grace period and issue a warning that the agreement will be rescinded if the second meeting is missed too. The buyer shall be liable for any costs (minimum fee: €100) incurred by Pohlig in connection with the user's failure to attend the fitting appointment. Both parties reserve the right to furnish evidence that the incurred expenses were higher or lower. Any costs incurred in connection with the individual fitting (travel, accommodation, etc.) shall be borne by the user of the medical device. If the user of the medical device fails to show at a second appointment scheduled by Pohlig, Pohlig reserves the right to withdraw from the contract and claim the relevant damages. The buyer's extended liability remains hereby unaffected.
3. In the event of shipping, the delivery of the medical device shall be made at the cost and risk of the buyer. The manner of shipping shall be specified by Pohlig, taking the justified interests of the buyer into consideration. In the absence of any agreement to the contrary, risk shall pass to the buyer as soon as Pohlig delivers the goods to the forwarder, carrier or another third party.
4. In the event of an individual fitting, risk shall pass to the buyer when the medical device is handed over to the user of the medical device. If the user of the medical device fails to attend the first fitting, risk shall pass to the buyer at the time of the missed appointment.
5. Should it prove impossible to fit the medical device to the individual on account of unforeseeable physical changes to the user, sustained after placing the order but before the first fitting appointment, Pohlig reserves the right to demand remuneration and expenses for any work already done. The buyer's extended liability remains hereby unaffected.
6. Any prices Pohlig lists that are not binding by law or by a contract are based on price calculations that apply at the time the quote is drawn up. In cases where transfer/ delivery is made more than four months after entering into the agreement, Pohlig reserves the right to adjust such prices within reason if the calculation basis changes (e.g., if labour costs increase, or the cost of purchased materials increases, etc.).
7. In the absence of binding provisions to the contrary, the purchase price / remuneration for the work performed shall be paid within 30 days of the date of the invoice and receipt of the medical device. Payment shall be deemed made if and when Pohlig has unlimited access to the entire amount invoiced.
8. In the event of default in payment by a health insurance agency, Pohlig may demand interest on arrears at a rate of 8% above the respective base interest rate. Other buyers shall be charged interest on arrears at a rate of 5% above the respective base interest rate. Pohlig reserves the right to claim compensation for any damages that are verifiably greater.
9. The buyer may only offset claims if such are uncontested, proven or legally binding. The buyer may only assert a right of retention where such is in connection with an undisputed claim arising from the same contract.
Section 4 Delivery periods, withdrawal, default
1. Should the buyer withdraw from the agreement without valid cause, they shall reimburse Pohlig's proven costs and also pay a reasonable surcharge for overheads totalling 2% of the contract value. Both parties are entitled to furnish evidence that the incurred damage was higher or lower. Additional claims asserted by Pohlig remain hereby unaffected.
2. In the absence of a binding agreement to the contrary, delivery dates and periods shall be non-binding. They do not constitute a drop-dead date.
3. In cases where delivery periods and dates are non-binding, the customer may only exercise their right of withdrawal from the contract if the non-binding delivery period is exceeded by more than two weeks, and the customer, having granted in writing a grace period of a further two weeks, declares on expiry of this grace period that they no longer wish to maintain the agreement. This provision for granting a grace period shall also apply after failure to meet a binding delivery date or period.
4. If a delivery is delayed due to force majeure, or due to an obstacle that temporarily prevents Pohlig or its suppliers from making the delivery on the agreed date, and no fault can be attributed to Pohlig for said obstacle, the delivery period shall be extended by the duration of the disruption in question. Both parties are entitled to withdraw from the agreement if the disruption in question causes performance to be delayed by more than two months. If such disruption renders delivery or performance permanently impossible or untenable, Pohlig shall be entirely relieved of its obligation to perform the contract. Additional rights remain hereby unaffected.
5. If incoming supplies are cancelled or delayed, and this results in a delay for the buyer, Pohlig shall only be deemed as being in default if Pohlig was culpably responsible for the cancellation or delay in question. If self-delivered supplies are not received for reasons over which Pohlig evidently has no control, both parties reserve the right to withdraw from the agreement. Additional rights remain hereby unaffected.
6. The buyer may claim compensation for damage caused by the delay only in the event of wilful or gross negligence, provided the damage does not involve injury to life, limb or body. In the event of minor negligence, liability shall be limited to damages that are typical and foreseeable for the contract in question, up to a maximum of 5% of the agreed purchase price for the part of the order for which Pohlig is in default. This shall not apply if the resulting damage involved injury to life, limb or body.
Section 5 Retention of title
1. All medical devices delivered by Pohlig shall remain the property of Pohlig as reserved goods until full payment of the purchase price is received. In the case of health insurance agencies, title shall be retained until all Pohlig's present or future claims against the health insurance agency in question have been met, regardless of the legal grounds. In connection with a running account, the reserved goods serve as security for the outstanding balance due to Pohlig.
2. Pohlig reserves the right to withdraw from the agreement and repossess the reserved goods if the buyer suspends payments on a more than temporary basis, or petitions for the instigation of insolvency proceedings on their assets, or if insolvency proceedings are instigated on their assets, or if the buyer violates the agreement, in particular by defaulting on payment. Following such repossession, Pohlig is entitled to turn the goods to account and offset the proceeds against the customer's accounts payable.
3. At the request of the buyer, Pohlig shall waive its right of retention if and to the extent that the value of the collateral in question exceeds the accounts payable by more than 20%, or as soon as the buyer has met all payment obligations in connection with the respective item.
Section 6 Warranty rights
Where the cause of a defect is already present at the passing of risk as defined in Section 3, clause 3 or 4, Pohlig accepts liability for defects pursuant to the following provisions.
1. For health insurance agencies: Pohlig shall, free of charge, remedy any defects that are identified within six months from the passing of risk. For other buyers: if a defect is identified when a new medical device is delivered, the buyer may, at their own discretion, request a repair or a replacement, provided their choice does not entail unreasonable costs. In the case of repairs, Pohlig shall choose its own method for rectifying the defect in accordance with contractual and statutory requirements. If a medical device or part thereof is replaced, the defective device or part thereof becomes the property of Pohlig.
2. The place of performance for remedying any defects shall be the branch responsible for fitting and/or supplying the medical device. The patient shall bear any travel and/or accommodation costs that they or their carer(s) incur in connection with the warranty event.
3. The buyer may claim damages only in accordance with Section 7.
4. The buyer cannot assert warranty claims in the event of minor deviations from contractually agreed characteristics in the medical device they receive. Should it prove impossible to fit the medical device to the individual on account of unforeseeable physical changes to the user, sustained after placing the order but before the first fitting appointment, this shall not be deemed a material defect.
5. Pohlig accepts liability, to the extent covered by statutory rights, for the normal durability and lifetime of wear and tear parts (protective equipment, covers, buffers, stops, etc.) that is to be expected on average if the medical device is handled properly. Warranty claims cannot be asserted for premature wear and tear of individual parts/wear and tear parts, or inability to use individual parts, or wear and tear resulting from improper or excessive use, or for unforeseen physical changes or excessive perspiration.
Section 7 Liability
1. The buyer may only assert claims for damages in cases where Pohlig is guilty of wilful or gross negligence, or if Pohlig breaches a material contractual obligation.
2. In the event of minor negligence that results in a breach to a material contractual obligation, Pohlig's liability shall be limited to the foreseeable and typical amount of damage resulting from such a breach.
3. Clauses 1 and 2 shall not apply to liability if defects were wilfully concealed, or if certain product characteristics were guaranteed, or to damages resulting from injury to life, limb or body, or to claims brought under the Product Liability Act. This does not entail a change in the burden of proof to the detriment of the buyer.
Section 8 Miscellaneous provisions, consumer arbitration
1. In the event that an individual provision is invalid, the validity of the remaining provisions shall remain hereby unaffected. In such cases, the parties agree to implement a provision that comes as close as possible in essence to the invalid provision.
2. Pohlig GmbH will not participate in consumer arbitration processes as detailed in the German Consumer Dispute Resolution Act.
Disputes arising from the contract or performance thereof may be settled by:
Chamber of Trade for Munich and Upper Bavaria
Section 9 Applicable law
The contractual relationship between the parties shall be governed exclusively by German law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
Section 10 Place of performance and jurisdiction
1. Place of performance for the obligations of both parties under the agreement shall be Pohlig's registered business address.
2. In the event of a dispute with a health insurance agency or a commercial enterprise that arises from the contract, including a dispute related to bills of exchange or cheques given in payment, the place of jurisdiction shall be Pohlig's headquarters. However, Pohlig reserves the right to bring legal action before a court in any statutory jurisdiction.
3. Clause 2 shall also apply to private persons who, at the time that legal action is brought, have their domicile or customary residence outside the Federal Republic of Germany or whose domicile or customary residence is unknown at the time that legal action is brought.
Terms and conditions of purchase
1.1 Unless agreed otherwise, these terms and conditions shall apply exclusively to all supplier services rendered to Pohlig GmbH (Pohlig).
1.2 The services to be provided by the supplier shall be determined by the type and scope of the specific delivery agreement, which is based on a purchase order. In the event of contradictions, the contractual basis referred to in Sections
1.2.1 – 1.2.8 shall apply in consecutive order. A contradiction does not exist in cases where one contractual basis supplements or substantiates another in such a way that Sections
1.2.1 – 1.2.7 are met, provided Pohlig GmbH is not disadvantaged by receiving poorer quality, reduced quantities, higher prices or the like. Where a contradiction cannot be resolved by mutual agreement on the basis of the sequence specified in Sections 1.2.1 – 1.2.8, or by interpretation, Pohlig GmbH shall decide on the variant to be executed at its own discretion.
1.2.1 Order placement
1.2.2 Records of negotiation
1.2.3 Service specifications with additional technical regulations
1.2.4 Documents that are attached to the RFP, available for inspection or mentioned in the RFP
1.2.5 Pohlig's terms and conditions of purchase
1.2.6 The supplier's terms and conditions of sale
1.2.7 Applicable laws and provisions.
1.2.8 The supplier's bid
1.3 Alternative offers are welcome. However, they should be submitted as a special attachment. They will not form part of the agreement unless and until confirmation is provided by Pohlig in written or text form.
1.4 Contractual terms and conditions of the supplier that deviate from the terms and conditions of purchase provided by Pohlig, or from the Quality Assurance Agreement (Annex) provided by Pohlig, shall only apply in accordance with Sections 1.2 to 1.3, and only if Pohlig expressly references the relevant clause in the terms and conditions of purchase or the Quality Assurance Agreement (Annex) from which they deviate when including them in the agreement or purchase order.
2. Entering into a contract
2.1 The parties enter into a contract as soon as Pohlig receives confirmation in written or text form (e.g. fax or e-mail) that the supplier has accepted Pohlig's purchase order.
2.2 Pohlig hereby refuses to acknowledge the validity of any confirmation in which the price, terms of payment, quality of the goods or place and time of the delivery have been altered. Any proposed changes must be negotiated in advance and, where applicable, included in the negotiation records and the purchase order. In this respect, the procedure described in Section 1.4 shall apply.
3. Prices, payment
3.1 Unless alternative conditions have been agreed upon in writing, payment shall be made within 21 calendar days with a 3 % discount, or 60 calendar days without deductions, upon receipt of the invoice.
3.2 The supplier may exercise their offsetting rights and retention rights only in connection with uncontested or adjudicated counterclaims.
4. Delivery deadlines
4.1 The agreed delivery times or dates are binding and – if a DDP (delivery duty paid) delivery in accordance with Incoterms 2010 has been agreed – refer to the time of receipt of the goods at Pohlig. The purchase order date is used to calculate the delivery deadline.
4.2 If the supplier identifies a risk of default on delivery deadlines or dates, they shall notify Pohlig immediately.
4.3 Pohlig's right to withdraw from the agreement and claim damages in the event of delivery default shall be subject to statutory provisions. Should it become necessary to set the supplier a reasonable grace period, the parties hereby agree that a 14-day grace period is generally sufficient. Acceptance of a delayed delivery shall not be deemed a tacit waiver of the aforementioned rights.
4.4 Pohlig reserves the right to demand lump-sum damages to the amount of 0.5% of the value of the purchase order for each week of delay, or part thereof, up to a maximum of 5%. Additional legal claims remain hereby unaffected (lump-sum damages that have already been paid will be deducted from legal claims for damages). The supplier is at liberty to furnish evidence that no damage, or considerably less damage, was incurred.
5. Product quality, statutory rights
5.1 If the statutory provisions for delivery or performance include a warranty for material defects or a warranty of title (e.g., in the case of purchase contracts, work contracts, rental agreements), the statutory provisions for the warranty for material defects or warranty of title shall apply with the following stipulations:
5.1.1 Material defects, breach of title, poor performance The parties hereby agree that the supplier is responsible for ensuring zero-defect quality. Pohlig shall, without delay, inspect incoming deliveries made on the basis of a purchase agreement. This visual inspection is to ensure the correct products were delivered, and to establish whether there are any obvious defects or whether obvious damage was sustained in transit. Pohlig shall report any defect within two weeks of its discovery. Pohlig is not obliged to conduct further inspections or give additional notice of defects. Any further statutory obligations are excluded.
5.1.2 Subsequent performance shall commence immediately and be completed within a reasonable time. The interpretation of "immediate" and "reasonable time" depends hereby on the severity of the defect when evaluated under normal market conditions, and taking into consideration the economic and technical significance of its effects on Pohlig's business operations.
5.1.3 Pohlig shall report defects to the supplier, and the supplier shall process these complaints promptly.
5.1.4 The statute of limitation for material defects and breach of title is 24 months. Where the law provides for a longer period, such period shall apply.
5.2 In addition to statutory provisions, the following applies to any performance that classes by law as a service.
5.2.1 If the service is rendered in a faulty manner, or otherwise deviates from the agreement, and the supplier is at fault, the supplier shall provide the service for Pohlig without additional costs and in accordance with the agreement within a reasonable period of time. In order for this to apply, Pohlig must register a complaint immediately, but no later than four weeks after identifying the fault in question. Should the supplier fail to render the service to the contractually agreed standard within a reasonable grace period to be set by Pohlig, Pohlig reserves the right to terminate the agreement in question without notice.
5.2.2 Pohlig shall report defects to the supplier, and the supplier shall process these complaints promptly.
5.2.3 If due cause is given, Pohlig reserves the right to terminate the agreement without notice and claim damages accordingly.
6. Non-infringement of third-party rights
6.1 The supplier guarantees the following:
6.1.1 To be in possession of all necessary rights and proprietary rights connected with the delivery of the products or the provision of the service, and to grant or transfer these rights to Pohlig without violating third-party rights;
6.1.2 To have obtained from prior right holders, or from other parties that are entitled to the performance results, all legal declarations and other participation records (including approvals or waivers for rights or the exercising of rights) that are necessary in order for the products and services to be used as per the contract;
6.1.3 That the products and services to be provided do not violate applicable laws or infringe any patent, copyright, ancillary copyright, trademark rights or other rights of third parties worldwide.
6.2 The supplier hereby undertakes to indemnify Pohlig against all claims, damages, costs, expenses, etc. which a third party asserts against Pohlig on account of patents, copyright, ancillary copyrights, trademark rights, other industrial property rights or property rights in connection with the contractual use of the products or services provided to Pohlig. Pohlig shall also be indemnified against and/or exempted from reasonable legal defence costs in these cases. In order for such exemption or indemnity to apply, Pohlig must inform the supplier within a reasonable period of time of any claim of this kind asserted or threatened by a third party. Any claim for exemption or indemnity under this clause is also subject to the assumption that the allegations made by the third party are accurate, and that the supplier is responsible for the infringement of the third-party rights.
6.3 Where it is possible and meaningful to do so, the supplier shall assume sole control over the legal defence, all costs that arise in connection with the defence, and all negotiations regarding settlements for the asserted claim. The above provision notwithstanding, Pohlig reserves the right to take temporary measures as and when necessary, at the supplier's expense, to safeguard the continued use of the product or service concerned and avoid greater damage.
6.4 Should Pohlig wish to settle with the third party and then use this exemption clause to assert the results of the settlement against the supplier, such a settlement can only be concluded with the consent of the supplier. However, the supplier may not act in bad faith to withhold their consent. 6.5 Any claims for damages, unfair enrichment or other claims asserted by Pohlig remain hereby unaffected; however, payments made on the basis of this clause shall be offset against such claims if Pohlig would otherwise benefit unlawfully.
7. Germany's Electrical and Electronic Equipment Act, Electrical and Electronic Substances Directive, REACh, ionising radiation
7.1 The supplier shall comply with the provisions of the Act that govern the placing on the market as well as the return and environmentally sound disposal of electrical and electronic equipment, and shall observe the obligations resulting therefrom for Pohlig. Where such obligations are transferable, the supplier shall support Pohlig in meeting such obligations. In particular, the supplier undertakes, where necessary, to affix the legally required manufacturer's label to the product on behalf of Pohlig, free of charge and in accordance with Pohlig's specifications. Further, where required under applicable statutory provisions, the supplier undertakes to label the respective product with the appropriate symbol in accordance with Pohlig's specifications (e.g., crossed-out wheelie bin).
7.2 The supplier shall ensure compliance with the provisions of the 2011/65/EU Restriction of Hazardous Substances Directive (RoHS) for electrical and electronic equipment as well as national laws such as the Federal Republic of Germany's Electrical and Electronic Substances Directive (Elektro-Stoff-VO) that restrict the use of certain hazardous substances in electrical and electronic equipment. In addition, the supplier shall ensure that the electrical and electronic equipment they supply can be identified via a label indicating its type, batch or series number, or via another form of reference number, and that the supplier's name, registered company name or registered trademark and address is indicated on the electrical or electronic equipment and/or that such labels and information are visible on the packaging or contained in the documentation enclosed with the equipment. Further, the supplier shall affix a CE marking to the equipment and products where necessary and permitted. This shall be affixed to the electrical or electronic equipment or data plate in a visible, legible and permanent manner. Before making a first delivery of electrical or electronic equipment, including cables and spare parts, the supplier shall confirm in writing to Pohlig the RoHS conformity of the products. The packaging of such products shall include a label declaring RoHS conformity. RoHS conformity shall be confirmed in the delivery note with the wording "RoHS-konform/RoHS-compliant". In addition, the supplier shall inform Pohlig in writing without delay and without being prompted, if the information in the conformity declaration is no longer accurate. If so requested, the supplier shall provide Pohlig immediately with the documentation (e.g., technical documentation) needed for verifying conformity.
7.3 The supplier shall ensure that the products they deliver comply with the provisions of the European Union's REACh Regulation no. 1907/2006 for the registration, evaluation, authorisation and restriction of chemicals. The supplier shall, without being prompted to do so, provide Pohlig with the necessary information relating to registration. If so requested by Pohlig, the supplier shall provide a current, complete safety data sheet that complies with the requirements of the REACh regulation.
7.4 The supplier shall ensure that the product does not contain any substances that are classed by REACh as being of high concern in concentrations of more than 0.1% weight by weight (w/w). In the event that the supplier nonetheless delivers products to Pohlig that contain a concentration of more than 0.1% weight by weight (w/w) of one or more substances of high concern that meet the criteria under Article 57 of REACh and are included in Annex XIV of the REACh regulation (candidate list), and/or have been identified under Article 59(1) of REACh (candidate list), the supplier shall, in accordance with Article 33 of REACh, supply adequate information within 45 days regarding the safe use of the products. At the very least, the supplier must name the relevant substance.
7.5 If the supplier contravenes the provisions detailed in Sections 6.1 to 6.4, Pohlig reserves the right to withdraw from contracts with said supplier in line with statutory provisions and/or to terminate such contracts and claim damages as well as indemnity from third-party claims or fines imposed as a result of the violation. 7.6 The supplier shall ensure that all deliveries are free from ionising radiation.
8. Work performed on Pohlig's premises
Persons who perform work on Pohlig's premises shall observe site regulations. For this purpose, all staff employed by the supplier must be familiar with and closely observe the Occupational Health and Safety Act, accident prevention regulations and Pohlig's internal rules and regulations. The supplier is responsible for ensuring that all employees involved in the performance of the respective order are familiar with the above rules and regulations. Furthermore, the supplier shall ensure and verify that their employees have understood the general instructions mentioned above as well as specific instructions issued by coordinators on site prior to the start of the work. The same shall apply if and where the supplier deploys subcontractors. Pohlig cannot accept liability for accidents except in the event of negligence
9. Product liability9.1 The supplier shall hold Pohlig harmless against third-party claims for defects in the end product that result from a defect in the product delivered by the supplier. This shall also apply to all costs connected with any recall action that Pohlig deems necessary and well-founded. This indemnity shall include an advance payment for the necessary costs of court proceedings. 9.2 The supplier shall, at their own cost, take out and maintain appropriate insurance cover for their business activities (for product liability, recall costs and, if applicable, recall costs connected to upstream suppliers). If so requested at any point in time, the supplier shall provide Pohlig with a copy of their liability insurance policy or an insurance certificate.
10. Samples, drawings, and utility model protection
10.1 No copies may be made of any documents (e.g., drawings, samples, prototypes or data carriers) that Pohlig places at the disposal of the supplier, nor must these be made available to any third party. They shall be returned free of charge upon request.
10.2 The supplier is not permitted to use for their own purposes, or supply to a third party, any products that are manufactured according to documents provided by Pohlig, or manufactured using tools provided by Pohlig. The supplier shall not participate directly or indirectly in replicating these products or in selling replicated products.
11. Loaning and ownership of tools
Tools provided by Pohlig shall remain the property of Pohlig. The supplier shall store such tools separately and may only use them for the manufacture of Pohlig products. Irrespective of culpability, the supplier shall be liable for any depreciation or loss, and shall take out insurance accordingly. Storage costs are covered by the purchase price for the products manufactured through the use of such tools. In connection with the supply agreements, Pohlig will provide the supplier with objects such as measuring and test equipment/tools, functional models, products or product components (hereinafter: "loaned object(s)"), and will document the loan. Loaned objects remain the property of Pohlig. Loaned objects may only be used for the purpose of fulfilling the relevant supply agreement. Should the supplier use the loaned object for any purpose other than the intended purpose, Pohlig reserves the right to terminate the relevant supply agreement(s) immediately. If so requested by Pohlig, the supplier shall return loaned objects without delay, but within two weeks at the most, to the person named in the request letter. Loaned objects must be returned in a clean, functional and complete state and, subject to normal wear and tear, in a usable condition. Loaned objects shall be provided free of charge. Unless expressly agreed otherwise between the parties, Pohlig shall bear all shipping costs for delivering and returning loaned objects. Pohlig shall specify the shipping method in advance for returns from the supplier. The regulations for making inventories of loaned objects are the same as the regulations for making inventories of components that are supplied by the customer.
12. Company secrets and trade secrets
The supplier shall treat orders from Pohlig confidentially, as business and trade secrets, along with all associated commercial and technical details.
13.1 The supplier hereby confirms that, in connection with the delivery of products to Pohlig and/or the performance of work for Pohlig, they have complied with all relevant laws in the applicable jurisdictions, in particular with regard to criminal law, antitrust law, social security law and administrative offences law, as well as with minimum wage requirements and laws on the prevention of child labour.
13.2 In particular, the supplier hereby confirms that they have complied with all relevant anti-corruption laws and provisions, and have refrained from offering financial incentives or other gifts to employees of Pohlig, or family members of employees, in exchange for receiving jobs from Pohlig. At no time in the future will the supplier engage in such practices.
c 13.3 The supplier hereby confirms that, where applicable, they comply with statutory minimum wage requirements, and pay their employees who are subject to such provisions the respective minimum wage. Further, the supplier confirms that they are not excluded from bidding on public contracts. 13.4 The supplier shall endeavour to ensure their subcontractors and upstream suppliers are committed to compliance with provisions 13.1 to 13.3. 13.5 Should the supplier contravene any of the provisions under 13.1 to 13.5, Pohlig reserves the right to withdraw from and/or terminate contracts with the supplier in accordance with statutory provisions, and/or terminate all contract negotiations, and claim damages as well as exemption from any third-party claims that are asserted against Pohlig.
14. Data protection, data security and protection of confidential information
14.1 The supplier shall collect, process and use personal data exclusively in accordance with the applicable data protection regulations. In particular, the supplier is aware of the high level of protection afforded by applicable laws for data concerning health and shall always ensure, when rendering services to Pohlig under this agreement, that they comply with all the legal requirements for legitimate data processing that apply to the supplier's contractual services, insofar as these requirements affect the services themselves. 14.2 If the supplier processes personal data on behalf of Pohlig, and/or the supplier is commissioned by Pohlig to inspect or maintain automated procedures or data processing systems, and if access to personal data cannot be ruled out during the course of the job, the parties must first ensure a contract data agreement or processor agreement that meets legal requirements is in place, as per the Data Protection Annex. Before signing any service agreement, the supplier must determine whether they are required by law to create a new agreement of this kind, or supplement an existing agreement, in order to render the service. The supplier shall inform Pohlig without delay if the supplier can access personal data stored by Pohlig in the course of their work for Pohlig, where such access is not regulated by a contract data agreement or processor agreement concluded with Pohlig. 14.3 If a third party imposes, or threatens to impose a fine on Pohlig for a breach of data protection law, and/or files a claim for damages or compensation against Pohlig for a breach of data protection law, and if such fine or claim is based on an action or omission of the supplier in connection with their data processing activities for Pohlig, Section 6 shall apply accordingly. 14.4 On principle, products and services acquired by Pohlig must not send any data to the supplier without the prior consent of Pohlig, except in cases where this is a precise part or purpose of the product or service in question. In particular, this also includes data containing registration information or configuration data relating to Pohlig's systems. 14.5 Further, the parties undertake to protect all business and trade secrets of the other party as they would their own business and trade secrets, in particular to keep them safe from being accessed by third parties or being transferred to third parties. If one party learns that a third party has gained access to relevant data, or if data has been transmitted to a third party (data leak), or if one party has reason to suspect this, the other party must be informed immediately and furnished with all the information they need to prevent further damage.
15. Export controls, customs
In their business documents, the supplier shall inform Pohlig of any authorisation requirements for (re-)export of their goods arising from German, European and US export and customs regulations, as well as from the export and customs regulations of the country of origin of their goods. For this purpose, any quotes, order confirmations and invoices provided by the supplier must include the following information for the relevant goods: – The export list number in accordance with Annex "AL" to the German Foreign Trade Ordinance (AWV) or comparable list items of relevant export lists, – For US goods: the ECCN (Export Control Classification Number) according to the US Export Administration Regulations (EAR), – The commercial origin of their goods and the components of their goods, including technology and software, – Whether the goods were shipped through the US, manufactured or stored in the US, or manufactured using US technology, – A contact person in the company who is available to clarify any queries from Pohlig. Upon request by Pohlig, the supplier shall inform Pohlig in writing of all further foreign trade data on their goods and their components, and shall inform Pohlig immediately in writing (before delivering the goods in question) if there are any changes to information they have previously provided.
16.1 The supplier hereby agrees to comply with the law on sanctions and also ensure compliance from any affiliated companies in which they are a majority shareholder. In particular, the supplier shall guarantee that the purchase or import of products under this agreement does not constitute a violation of sanction law. The supplier shall, upon reasonable request, provide Pohlig with documents and/or information documenting compliance with this clause. For the purposes of this provision, sanction law is the law designated by the European Union, the United States, the United Nations or the country of origin of the products as an objective of economic or financial sanctions. 16.2 If the supplier violates the obligations set out in clause 19.1, Pohlig shall be entitled to immediately terminate / withdraw from the agreement. In such cases, the supplier shall indemnify Pohlig against any liability, costs, expenses and damages resulting from a breach of the obligations under clause 19.1. The above obligation to indemnify Pohlig against all liability, costs, expenses and damages does not apply if the supplier was not responsible for the breach. The supplier is not entitled to assert any claims for damages or other rights against Pohlig on account of such termination.
17. IT security
The supplier shall take appropriate measures to safeguard their IT security, in particular: – Keeping software and hardware up-to-date and – Taking appropriate technical and organisational safety precautions, particularly in the field of antivirus protection and network security (e.g. firewalls) and when transmitting data (e.g., encryption). The supplier must, without delay, inform their designated contact at Pohlig (or the relevant deputy) by phone and in writing about any threat to IT security, especially if – confidential information belonging to Pohlig and / or trade or business secrets (e.g., plans / construction drawings) and / or – the supplier's ability to fulfil their obligations to Pohlig could be affected.
18. Applicable Law / jurisdiction
The buyer's address, as stated in the order, shall dictate the exclusive application of the legal regulations of that federal state or country, with the exception of the UN Convention on Contracts for the International Sale of Goods (CISG). The sole place of jurisdiction for all disputes arising from or connected with this agreement shall be the court responsible at the buyer's address. Valid from: 01 January 2020
Website Conditions of Use
Access to and use of this website are subject to the following conditions. Please do not use this website unless you agree with these conditions. This website has been developed by Pohlig GmbH (hereinafter to be referred to as Pohlig) and is administered by the same. We reserve the right to discontinue or to make partial or complete modifications to this website. Please note that we may make such changes at our own discretion and without prior announcement. We must therefore ask you, next time you visit this website, to view the conditions again and to note any changes or amendments that may have been made.
Trademarks and Copyright
All trademarks on this website are the property of Pohlig, unless otherwise noted or in any other way perceivable as third party rights. Any unauthorized use of these trademarks or other materials is expressly prohibited and constitutes a violation of copyright, trademark law or other industrial property rights.
Pohlig has compiled the detailed information provided on this website from internal and external sources to the best of its knowledge and belief, using professional diligence. We endeavor to expand and update this range of information on an ongoing basis. The information on this website is purely for the purpose of presenting Pohlig and its products and services. However, no representation is made or warranty given, either expressly or tacitly, for the completeness or correctness of the information on this website. Please be aware that this information although accurate on the day it was published may no longer be up to date. We therefore recommend that you check any information you obtain from this website prior to using it in whatever form. Should you require any advice or instructions concerning our products or services, please contact us directly. Users of this website declare that they agree to access the website and its content at their own risk. Neither Pohlig nor third parties involved in the writing, production or transmission of this website can be held liable for damage or injury resulting from access or the impossibility of access or from the use or impossibility of use of this website or from the fact that you have relied on information given on this website.
Any legal claims or lawsuits in conjunction with this website or its use are subject to the interpretation of the laws of the Federal Republic of Germany.
This website is checked, operated and updated by Pohlig. It is intended for international use. Should you call up this website or download contents, please note that it is your own responsibility to ensure that you act in compliance with local legislation applicable in that place.