General terms and conditions of sale and delivery
Only the general terms and conditions of sale and delivery below shall apply to all transactions. Terms and conditions of purchase contrary or differing from these, or other restrictions imposed by the Buyer shall not be recognised, unless the Seller has given his express consent to them in writing in an individual case.
- Illustrations, diagrams, colours, stated weights and dimensions which are included in price lists and other printed matter shall only count as being approximations, in so far as no express statement has been made that they are binding. The Supplier reserves the right of ownership and copyright to cost estimates, drawings and other documents; they may not be made available to third parties.
- For documents that the Buyer hands over to the Supplier, the Customer also bears full responsibility in relation to the Supplier with regard to the infringement of industrial property rights of third parties. The Supplier undertakes to make no plans marked as confidential by the Buyer available to third parties without the Buyer’s consent.
- Scope of delivery
- The written order confirmation of the Supplier is decisive for the scope of delivery. If our confirmation differs from the order in any way, we must be informed immediately. Otherwise, the delivery will be made according to our specifications. We do not recognise complaints for this reason.
- Partial deliveries are permissible.
- The Supplier shall provide samples only against additional charges according to the currently valid prices.
- Over- and under-deliveries, call orders
- Over- and under-deliveries are permitted up to 10%.
- Call orders must be made within 6 months. They will be calculated according to the respective valid prices of the Supplier.
- Fees and payment
- Unless otherwise agreed, prices are ex works including loading at the plant, but excluding packaging. Value-added tax is added to the listed prices at the applicable statutory rate. Orders for which fixed prices have not been expressly agreed will be charged at the prices applicable on the day of delivery. If there is a significant change in order-related cost factors (e.g. wages, input material, energy), the agreed price can be adjusted to an appropriate extent according to the influence of these cost factors.
- Unless otherwise expressly agreed, payments must be made free of charge to the Supplier’s paying agent no later than 30 days after the invoice date – also in the case of partial deliveries.
- A discount of 2% is granted for payment within 14 days of the invoice date.
- The withholding of payments or offsetting due to any counterclaims of the Buyer disputed by the Supplier are not permitted.
- Bills of exchange will be accepted only on account of performance without warranty for protest and only following agreement and subject to the condition of their discountability. Discount charges will be calculated from the due date of the amount invoiced. Nevertheless, we reserve the right to return bills of exchange during the term and to demand cash coverage if special circumstances should suggest this to us.
- If the target is exceeded, interest shall be charged at a rate of 4% above the euro reference rate fixed by the European Central Bank for the purposes of the discount rate.
- Delivery times
- 1. Delivery times shall be regarded as only approximately agreed. The delivery time begins with the dispatch of the order confirmation. The delivery period shall be deemed to have been met if the goods have left the factory or notification of readiness for dispatch has been given by the time the delivery period expires.
- 2. The delivery period shall be extended appropriately in the case of measures within the scope of labour disputes, in particular, strikes and lockouts, as well as in the case of occurrence of unforeseen impediments lying beyond the intention of the Supplier, in so far as such impediments have a demonstrable decisive influence on the completion or delivery of the goods. The same shall apply in the event these circumstances affect our subcontractors. The above-mentioned circumstances shall also not be justified by the Supplier if they occur within the scope of an already given default. In important cases, the Supplier shall inform the Buyer of the beginning and end of such obstacles as soon as possible. If an extension becomes unreasonable for the Buyer, they are entitled to a right of withdrawal, insofar as the contract has not yet been fulfilled. If the delivery becomes impossible due to the aforementioned circumstances, the Supplier may withdraw from the contract insofar as this has not yet been fulfilled.
- Claims for compensation by the Buyer in these and all other cases of delayed delivery, even after expiry of a grace period set for the Supplier, shall be excluded. This does not apply insofar to any liability for damages resulting from intent or gross negligence.
- Observance of the delivery term is only applicable if the Buyer fulfils its contractual obligations.
- Retention of title
- The Supplier shall retain title in the goods until all accounts receivable of the Supplier vis-à-vis the Buyer from the business relationship including any accounts receivable arising in the future, also from simultaneously concluded agreements or contracts concluded at a later point of time have been settled. This shall also apply if some or all claims of the Supplier are combined in a current account and if a new balance is stricken and accepted. In the event of a breach of contract by the Buyer, in particular, in the event of default in payment, the Supplier is entitled to take back the goods after setting a reasonable deadline. A repossession as well as a seizure of the goods by the Supplier shall only be deemed to exist if the German Consumer Credit Act does not apply, a withdrawal from the contract only if the Supplier expressly declares this in writing. In the event of seizure or other interventions by third parties, the Buyer shall notify the Supplier in writing without delay.
- The Buyer shall be authorised to resell the goods in the course of ordinary business activities. However, the Buyer hereby assigns to the Supplier all claims in the amount of the invoice value of the reserved goods accruing to the Buyer from the resale against the customer or third parties. The Buyer shall also be entitled to collect these accounts receivable after the assignment, as long as they act in compliance with the contract and as long as no insolvency is given. The Supplier’s authorisation to collect the accounts receivable shall not be affected hereby; the Supplier, however, undertakes not to collect the accounts receivable as long as the Buyer complies with their payment obligations to the Supplier according to the rules and regulations and no insolvency is given. Otherwise, the Supplier may, after setting a reasonable deadline, demand that the Buyer informs them of the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents and notifies the debtors of the assignment.
- If the assigned claim against the third-party debtor has been included in a current invoice, the respective balance claim – including the final balance – is assigned in the amount of the values relevant for individual assignment.
- In the event of processing or transformation of goods subject to retention of title, also together with other items not belonging to the Supplier, the Supplier shall acquire co-ownership of the new goods at the time of processing. The same applies to the goods produced by processing as for the goods subject to retention of title.
- The Supplier undertakes to release the securities to which they are entitled if the invoice value of the goods subject to retention of title exceeds the claims to be secured, insofar as these have not yet been settled, by more than 20%.
- If, in connection with the payment of the contract price by the Buyer, the Supplier is held liable for changes, the retention of title, including its agreed special forms, and other securities agreed to secure payment shall not expire before the change is redeemed by the Buyer as the recipient.
- Liability for material and legal defects of the delivery
Without prejudice to Section X, 3, the Supplier shall be liable for material defects in the delivery as follows, to the exclusion of any further claims:
- All those parts are to be repaired or newly delivered free of charge at the reasonable discretion of the Supplier, which have a material defect within 12 months of delivery due to a circumstance prior to the transfer of risk. The Supplier shall immediately be informed in writing of any such defects.
- Claims for material defects – irrespective of the legal grounds – shall become statute-barred after 12 months. This does not apply if there are defects in a building or items for a building and these have caused the material defect. Notwithstanding sentence 1, the statutory periods also apply in the case of claims under the Product Liability Act as well as in the case of intentional or fraudulent conduct.
- 3. No liability is assumed for damage caused for the following reasons: unsuitable or improper use, faulty assembly by the Buyer or third parties, natural wear and tear, faulty or negligent treatment, chemical or electrical influences, insofar as they are not attributable to the fault of the Supplier.
- Replaced parts become the Supplier’s property.
- Any changes or corrections made improperly by the Buyer or third parties without the Supplier’s consent shall exclude liability for the resulting consequences.
- Further claims of the Buyer, in particular a claim for compensation for damage that has not occurred to the delivery item itself, exist only * in the case of intent, * in the case of gross negligence, * in the case of injury to life, limb or health * in the case of violation of essential contractual obligations, insofar as the achievement of the purpose of the contract is endangered, with regard to the foreseeable damage typical of the contract, * in the cases in which liability is assumed under the Product Liability Act, * in the case of defects that have been fraudulently concealed or whose absence the Supplier has guaranteed.
All other liability shall be excluded. In the event of defects of title, the following provisions shall apply in addition:
- Unless otherwise agreed, the Supplier will provide its delivery free of property rights and copyrights of third parties in Germany. If there is nevertheless a corresponding infringement of property rights, the Supplier will either grant a corresponding right of use from the third party or modify the delivery item to the extent that there is no longer an infringement of property rights. Insofar as this is not possible for the Supplier on appropriate and reasonable terms, both the Buyer and the Supplier are entitled to withdraw from the contract.
- In the event of defects of title, the provisions of this Section VIII shall apply mutatis mutandis, whereby claims of the Buyer shall only exist if the Buyer informs the Supplier immediately in writing of any claims asserted by third parties, does not directly or indirectly acknowledge an alleged act of infringement, the Supplier retains all means of defence without restriction, the infringement is not based on the fact that the Buyer has changed the delivery item or used it in a manner not in accordance with the contract, or the defect in title is attributable to an instruction from the Buyer.
- Liability for collateral duties
If, through the fault of the Supplier, the goods cannot be used by the Buyer in accordance with the contract as a result of omitted or incorrect execution of proposals or consultations before or after the conclusion of the contract, as well as other contractual ancillary obligations, the provisions of Sections VIII and X shall apply mutatis mutandis to the exclusion of further claims by the Buyer.
- Right of the Buyer to withdraw and reduction, other liability of the Supplier
- If there is a delay in delivery within the meaning of Section VI and the Buyer gives the Supplier in default a reasonable grace period, and if the grace period is not observed, the Buyer is entitled to withdraw.
- The Buyer has a right to withdraw from the contract if the Supplier allows a reasonable grace period for the repair or replacement of a material defect to expire without result. The Buyer’s right to withdraw from the contract also exists in other cases of failure of the repair or replacement by the Supplier. In the event of an insignificant defect, the Buyer is only entitled to reduce the price.
- Further claims of the Buyer exist only in the cases of Section VIII, 6. Otherwise, further claims, in particular for termination or reduction as well as for compensation for damages that have not occurred to the goods themselves, are excluded.
- The personal liability of the legal representatives, employees and vicarious agents of the Supplier for damage caused by them in the course of their business activities for the Supplier shall only exist in the event of intent. All other personal liability shall be excluded.
- Tools cost
- In principle, only parts of the tool costs are calculated separately from the value of the goods.
- By paying for cost shares for the tools, the Buyer does not acquire any claim to the tools; rather, they remain the property and possession of the Supplier. The Supplier undertakes to keep the tools for the Buyer one year after the last delivery. If the Buyer notifies us before the expiry of this period that orders will be placed within a further year, the retention period shall be extended by a further year. After this time and the absence of repeat orders, we can freely dispose of the tools.
- With regard to the costs for tools for orders which do not materialise, the following shall apply: for orders which are cancelled at the development stage or in the run-up stage, the Supplier shall reserve the right to invoice the costs he has incurred. Invoices will be issued
- before approval of the samples, the costs for the initial tool set
- after release of the samples, the costs for the entire scope of series tools, special equipment and gauges, depending on the amount of the intended monthly requirement.
- The tools on which work has begun and which have been invoiced shall be available for inspection for 4 weeks, and then they shall be scrapped.
- The Buyer shall not be granted access to stadium plans and construction drawings of the tools.
- Used article
The disposal of used parts and other items that can no longer be used is the responsibility of the Buyer. Insofar as statutory provisions are enacted that stipulate otherwise, the Buyer undertakes to make an appropriate agreement with the Supplier with regard to the utilisation. It is assumed that the contractual parties will use third parties to fulfil their disposal obligations.
- Place of jurisdiction
The place of performance for all obligations arising from the contractual relationship is Sprockhövel. The place of jurisdiction for all legal disputes arising from the contractual relationship is the District and Regional Court of Wuppertal. German law applies (BGB and HGB).