Terms and Conditions
I. SCOPE OF APPLICATIONS
These General Terms and Conditions of Sale and Delivery shall apply exclusively to the Supplier's business relations with the Purchaser, unless expressly agreed otherwise in writing. The Supplier agrees with the Purchaser upon the first conclusion of the contract that these Terms and Conditions of Sale and Delivery shall also apply to all subsequent orders, even if no further express agreement is made in this respect. Deviating terms and conditions of the Purchaser, in particular conflicting terms and conditions of purchase, shall only apply if expressly accepted by the Supplier in writing.
II. CONCLUSION AND CONTENT OF THE PURCHASE CONTRACT
(1) These General Terms and Conditions of Sale and Delivery shall become an integral part of the contract. Subsidiary agreements, supplements and amendments shall only be effective if they have been agreed in writing.
(2) Offers made by the supplier are always subject to change. Conclusions of contract must be in writing to be effective.
(3) The quantities stated in the order confirmation shall be complied with within the scope of technical possibilities. Deviations from the agreed quantities which are customary in the industry are permissible. Partial deliveries are permissible; unless the partial fulfilment is of no interest to the customer.
(4) All information on weight, content and dimensions are average values. Unless specific values have been agreed or are mandatory under statutory provisions, deviations customary in the industry are permissible.
III. DELIVERY DATES AND PERIODS
(1) Dates and deadlines for deliveries are only binding if they have been agreed in writing.
(2) If the Supplier is in default of delivery and has allowed a reasonable period of grace to be set by the Purchaser in writing to elapse without delivery, the Purchaser shall be entitled to rescind the contract to the extent that delivery has not yet taken place, unless partial performance of the contract is in the Purchaser's interest.
In this case, the customer may withdraw from the entire contract. Claims for damages due to non-fulfilment or delay in delivery can only be asserted within the framework of section VIII.
(3) Cases of force majeure and other events occurring after conclusion of the contract for which the supplier is not at fault and which make delivery substantially more difficult or impossible, such as natural disasters, armed conflicts, strikes, lawful lock-outs, official measures as well as non-delivery, incorrect delivery or late delivery on the part of its suppliers - provided that these have been carefully selected by the supplier and the corresponding orders have been placed in good time - shall release the supplier from the obligations arising from the respective contract for the duration of the hindrance. The Supplier shall notify the Purchaser immediately upon the occurrence of such events. For the duration of such hindrance, the Purchaser shall also be released from its contractual obligations, in particular the payment of the purchase price. If the delay is unreasonable for the Purchaser, the Purchaser may withdraw from the contract by written notice after expiry of a reasonable period to be set by the Purchaser.
(4) If delivery on call (total or partial delivery) by the Purchaser without a specific delivery period has been agreed, the Supplier may, at its discretion, either demand acceptance of the entire delivery at the latest within six months after conclusion of the contract or withdraw from the contract after expiry of a reasonable period to be set by the Purchaser.
(5) The Purchaser shall be obliged to accept without delay any goods provided or delivered on time. In addition, he must create in good time all the conditions necessary on his part for the timely completion of the order. If goods ready for delivery remain at the purchaser's disposal at the latter's request, the invoice may be issued immediately and payment may be demanded. In all other respects the provisions of §§ 243 para. 2;300 para. 2 BGB shall apply.
(6) SUBJECT TO SELF-DELIVERY.
IV. PACKAGING, SHIPPING, TRANSFER OF RISK, POOL MATERIALS
(1) The supplier shall bear the costs for standard packaging. In the absence of other agreements within the scope of para. 4, he shall choose the type of packaging and dispatch as well as the dispatch route and transport company as favourably and expediently as possible. The goods shall only be insured against transport damage and other risks at the express request of the Purchaser and at the latter's expense.
(2) If goods are delivered on loan packaging such as pallets, these shall remain the property of the supplier. If these or other returnable packaging of the same type and quality are not returned to the supplier carriage paid and in a usable condition no later than three months after delivery, the supplier shall be entitled to charge the customer for them at the replacement price, taking into account a "new for old" deduction where applicable, unless the customer can prove that the impossibility of returning the pallets or their deterioration is not attributable to its fault. This also applies to damaged returnable packaging.
(3) The Supplier shall be liable for outer packaging provided by the Purchaser, such as crates, boxes, etc., with the due care of a prudent businessman. The provisions of the Packaging Ordinance shall remain unaffected.
(4) Upon conclusion of a contract, the parties shall agree on who, if any, shall bear the freight costs. With regard to the transfer of risk, §§ 446; 447 BGB shall apply.
(5) If goods are delivered on pool materials such as panels, these pool materials shall remain the property of the respective pool holders. The Supplier undertakes to send the Purchaser and the respective pool holders a monthly list of the pool materials delivered by the Supplier to the Purchaser separately according to pool holders. The customer undertakes - in accordance with the designation of the pool holders given by the supplier and the number of pool materials owned by them - to hold pool materials ready for collection by the respective pool holder in the corresponding quantity and to hand them over to the latter. If the customer does not fulfil this obligation or does not fulfil it completely, the provisions in para. 2 sentences 2 and 3 shall apply accordingly.
V. PRICES / PAYMENT
(1) Unless otherwise agreed, the sales prices are net prices in EURO plus value added tax at the statutory rate, customs duties and other levies. In the case of list prices or if no specific price has been agreed, the price list of the Supplier shall apply in the version valid at the time of conclusion of the contract.
(2) If, as agreed, delivery is to take place more than four months after the conclusion of the purchase contract, any significant cost increases for raw materials, energy, wages or freight incurred by the Supplier or its suppliers shall entitle the Supplier to demand immediate negotiations on a corresponding price adjustment from the Purchaser. If an agreement is not reached within six weeks thereafter, either party may withdraw from the part of the contract not yet executed by delivery.
(3) The submission of bills of exchange requires the prior consent of the supplier.
(4) The retention of payments due to or the set-off with counterclaims of the customer is only permissible if these counterclaims are undisputed or have been legally established.
(5) In the event of sustained default in payment, protest of a bill of exchange or cheque and suspension of payments by the Purchaser as well as in the event of the opening of bankruptcy or composition proceedings against the Purchaser's assets or in the event of the discontinuation of such proceedings for lack of assets, the Supplier may demand immediate payment of all claims against the Purchaser to which it is entitled - including any claims arising from bills of exchange in circulation - irrespective of their agreed maturity. If these conditions are met, the supplier is also entitled to make outstanding deliveries only against advance payment or provision of security and, if the advance payment or security is not provided within two weeks, to withdraw from the contract without setting a new time limit.
VI. RESERVATION OF TITLE
(1) All goods delivered to the Purchaser shall remain the property of the Supplier until full payment of all present and future claims of the Supplier arising from the business relationship, irrespective of the legal basis. This shall also apply insofar as the claims are included in a current account. In the event of payment by bill of exchange or cheque, the retention of title shall only expire when the bill of exchange or cheque has been honoured.
The customer is entitled to resell the goods subject to retention of title in the normal course of business, unless the customer's claim resulting from the resale has already been assigned to others; the right to resell shall also cease to exist if the prerequisite according to section V (6) is fulfilled. The Purchaser may not pledge the Retained Goods or assign them as security without the express consent of the Supplier.
(2) The Purchaser hereby assigns to the Supplier all claims against third parties arising from the resale of the Retained Goods in the amount of the Supplier's claims, without this requiring a separate declaration of assignment in the individual case; the Supplier accepts the assignment.
Notwithstanding the assignment and the Supplier's right to collect, the Purchaser shall be entitled to collect as long as it fulfils its obligations towards the Supplier and does not fulfil any of the conditions set out in Section V (6). If one of the aforementioned conditions is met, the Purchaser shall, at the Supplier's request, provide the information on the assigned claims required for collection and notify the debtors of the assignment. The supplier shall then be entitled to notify the third party debtors of the assignment of the claims and to collect the claims himself or to take back the reserved goods.
(3) If the goods subject to retention of title are combined or mixed with other items within the meaning of §§ 947; 948 of the German Civil Code, the supplier shall acquire a share in the value of the goods subject to retention of title in proportion to the value of the goods subject to retention of title.
value of the reserved goods, the supplier shall acquire co-ownership of the resulting intermediate and end products. If the Purchaser acquires sole ownership of the new item when processing the reserved goods with other items in accordance with Section 950 of the German Civil Code, the contracting parties agree that the Purchaser shall grant the Supplier co-ownership of the new item in proportion to the value of the reserved goods. In all cases, the Purchaser shall store the new item free of charge for the Supplier. The rules for resale according to paragraph (2) shall apply accordingly in the amount of the proportionate value of the reserved goods.
(4) The Purchaser shall inform the Supplier without delay of any compulsory enforcement measures by third parties against the reserved goods or the claims assigned in advance, handing over the documents necessary for an intervention.
(5) The Supplier undertakes to release the securities to which it is entitled in accordance with the above provisions at its discretion at the request of the Purchaser to the extent that the value exceeds the claims to be secured by 20%.
(6) The Purchaser is obliged to store the reserved goods properly and to insure them at its own expense against theft, breakage, fire, water and other damage in accordance with the Purchaser's usual business practices. The insurance claims shall be deemed assigned to the Supplier to the amount of the value of the reserved goods.
(7) If, in the case of deliveries abroad, a reservation of title cannot be agreed with the same effect as under German law, but the reservation of other rights to the delivery item is permitted, the supplier shall be entitled to these rights. The Purchaser shall cooperate in every respect in this respect.
(1) The Purchaser shall subject the delivered goods to an incoming goods inspection and shall immediately give notice in writing of any defects discovered. Defects which are not obvious must be reported in writing immediately after discovery, but at the latest within 6 months of delivery, otherwise the delivery shall be deemed to have been duly made. The provisions of §§ 377; 378 HGB remain unaffected.
(2) The supplier does not guarantee that the delivered goods are suitable for the special purposes envisaged by the customer, unless these purposes have become part of the contract.
VIII. CLAIMS FOR DAMAGES
(1) Claims for damages by the Purchaser against the Supplier and its legal representatives or vicarious agents - irrespective of the legal grounds - in particular due to defects in the goods delivered, impossibility of delivery or delay in delivery for which the Supplier is responsible, positive breaches of contract, breaches of duties during contract negotiations and tort are excluded. This shall not apply insofar as the Supplier or its legal representatives or vicarious agents are compulsorily liable in cases of intent, gross negligence, the absence of warranted characteristics and the breach of contractual obligations which are essential for achieving the purpose of the contract.
(2) The Supplier's liability for claims for damages of any kind of the Purchaser shall in any case be limited to the amount of the damage, the possible occurrence of which was recognisable and foreseeable for the Supplier upon conclusion of the contract.
(3) The above provisions shall not exclude any further claims under the Product Liability Act.
(4) Insofar as liability of the customer is excluded or limited, this shall also apply to the personal liability of our representatives and vicarious agents.
(5) In all cases, except for personal injury, claims due to slight negligence become statute-barred after one year.
(6) The liability claim expires if the client does not assert his claims in court within 3 months after rejection by the contractor or his insurance company.
(7) Liability claims become time-barred within a period of 12 months.
IX. TOOLS, REINFORCEMENT PARTS OR OTHER PROVISIONS
(1) Unless expressly agreed otherwise, we are and remain the owner of the tools (e.g. moulds) manufactured by us or by a third party commissioned by us for the orders of the customer. This shall also apply if the customer has assumed the costs for the tools or has participated in them or their manufacture is also due to the cooperation and suggestions of the customer. (2) If it has been agreed that tools for a specific customer shall only be used for orders of this customer, the customer shall bear all costs incurred. In other cases, the customer shall bear a share of the costs of the tools to be agreed. In the absence of an agreement on the allocation of costs, the customer shall bear half of the costs of the tools.
(3) The customer shall be obliged to pay his share of the costs of the tools in equal parts at the time of the order and in equal parts after receipt of the reference samples (even if changes are still necessary) without deduction of any discount. There shall be no separate financial compensation from our side for this after termination of the supply relationship.
(4) Any obligation to use tools exclusively for the orders of the customer shall only apply as long as the customer fulfils its payment and acceptance obligations towards us in full. In the event of non-fulfilment of the payment and acceptance obligations within the meaning of sentence 1, the Seller shall be entitled to use the tools also for orders of third parties, provided and to the extent that such use does not conflict with any industrial property rights concerning the tools belonging to the Buyer.
(5) In the event of changes prior to completion of the tools which are initiated by the orderer and result in a postponement of the submission of the reference samples, the orderer shall be obliged to reimburse us for the tool costs incurred up to that point. Costs for subsequent changes to the tools initiated by the customer shall be borne by the customer.
(6) If the customer does not place a binding order for the delivery of corresponding goods within six months after the production of the tools, the customer shall reimburse us for any difference between the share to be borne by the customer and the full tool costs.
(7) Unless otherwise agreed in an individual contract, we shall carefully store the tools for repeat orders, insure them at replacement value against fire damage and undertake their maintenance at the customer's expense. We shall only bear the costs for the replacement of tools that have become unusable if we are responsible for this. Our storage obligation shall expire if no further orders are received from the customer within two years after the last delivery.
(8) Insofar as costs are incurred for testing equipment, devices and other special equipment, they shall be provided by the customer at his expense. They remain the property of the purchaser.
(9) If materials are provided by the customer, the latter shall be obliged to deliver them free works, in good time, in perfect condition and in such quantities that uninterrupted processing is possible for us.
(10) In the event of late or insufficient delivery of reinforcement parts, the customer shall be obliged to reimburse us for any additional costs incurred as a result. In such cases, we reserve the right to interrupt production and to resume it at a later date.
(11) The storage of customer mould sets which have not been used for production for more than 6 months shall be invoiced at Euro 100 per month. The reconditioning, i.e. the cleaning and inspection of the moulds after this longer break in production and storage will be charged at a flat rate of 700 euros.
X. PROPRIETARY RIGHTS
(1) If we have to deliver according to drawings, models or samples of the purchaser, the purchaser shall be responsible for ensuring that the industrial property rights of third parties are not infringed thereby. He shall indemnify us against claims of third parties. If the manufacture or delivery is prohibited by a third party with reference to an industrial property right belonging to him, we are entitled - without examining the legal situation - to stop the work and to demand compensation for the costs incurred.
(2) Drawings and samples provided to us shall be returned on request; otherwise we shall be entitled to destroy the drawings and samples three months after submission of our offer.
XI. DATA COLLECTION
(1) The supplier shall store personal data on the purchaser using automatic data processing.
(1) The place of jurisdiction for all legal disputes with registered traders arising from the contractual relationship shall be the Supplier's principal place of business. The Supplier shall also be entitled to bring an action before the court having jurisdiction over the Purchaser's principal place of business.
(2) The conclusion of the contract as well as the contractual relations between the Supplier and the Purchaser shall be governed exclusively by the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 is excluded.
(3) Even if individual provisions of these General Terms and Conditions of Sale and Delivery are legally invalid, the remaining parts of the contract between the Supplier and the Purchaser shall remain binding. The invalid provision shall be replaced by a provision which is economically closest to the invalid provision. Alternatively, the authoritativeness of the legal regulation is agreed.