Terms of Sale and Delivery ( I )
Area of Application
1. These terms of sale and delivery shall apply to all dealings with companies, legal entities under public law and special funds under public law.
Our deliveries and services shall be provided exclusively on the basis of the following terms and conditions.
Deviating terms and conditions of the partner, which are not expressly acknowledged by us, shall not be applicable.
Offer and Contract Conclusion
2. Our offers shall be subject to change and non-binding. Invoicing shall be based on the prices and conditions relevant on the day of delivery. Orders/listings shall only become binding upon our written confirmation. The same shall apply correspondingly to amendments, alterations and ancillary agreements.
3. Information, drawings, images and service descriptions contained in catalogues, price lists or documents forming part of the offer shall be approximate values as customary within the trade unless we have explicitly referred to them as binding in the order confirmation.
4. With regard to protection under patent, sample and market law, acceptance and execution of the orders shall result at the risk of the purchaser. The latter shall also assume liability that no third-party rights are infringed through the use of submitted drawings, samples etc.
Long-term and Call-off Contracts, Price Adjustment
5. Contracts with an unlimited contract period shall be subject to a 6 months’ period of notice.
6. If a significant change of wage, material or energy costs occurs in the context of long-term contracts (contracts with a contract period of more than 12 months and contracts with an unlimited contract period), either contractual partner shall be entitled to reasonably adjust the price in consideration of these factors.
7. Where a binding order volume has not been agreed, our calculation will be based on the non-binding order volume expected by the partner for a certain period of time (target volume).
If the partner purchases less than the target volume, we shall be entitled to reasonably increase the price per unit. If he purchases more than the target volume, we shall reasonably reduce the price per unit provided that the partner gave notice of the additional requirements at least 3 months before delivery.
8. In case of delivery-on-call contracts, binding volumes shall be indicated to us by means of a call-off order at least 3 months prior to the date of delivery unless agreed otherwise in the individual case.
Additional costs caused by a delayed call-off order or subsequent changes to the call-off order in respect of time or volume by our partner shall be borne by the partner; in this context, our calculation shall be authoritative.
Confidentiality
9. Either contractual partner shall use any document (also including samples, models and data) and information which he receives under the business relationship only for the jointly pursued purposes and protect them from disclosure to third parties with the same diligence and care as is applied to corresponding own documents and information, if the other contractual partner classifies them as confidential or has an obvious interest in their non-disclosure.
This obligation shall begin upon initial receipt of the documents or information and end 36 months following termination of the business relationship.
10. The obligation shall not apply to documents and information which are generally known, or which were already known to the contractual partner upon receipt without him being placed under a non-disclosure obligation, or which are subsequently conveyed by a third party authorised to pass on such documents or information, or which are developed by the receiving contractual partner provided that he does not make use of documents or information of the other contractual partner that come under the obligation of secrecy.
Drawings and Specifications
11. Where a contractual partner makes drawings or technical documents relating to the goods to be delivered or their manufacture available to the other contractual partner, these shall remain property of the submitting contractual partner.
Samples and Manufacturing Equipment
12. As a basic principle, the manufacturing costs for samples and manufacturing equipment, tools, moulds, templates etc. shall, unless otherwise agreed, be invoiced separately from the goods to be delivered at a proportional share of the costs. This shall also apply to manufacturing equipment having to be replaced as a result of wear and tear.
13. The costs of maintenance and proper storage as well as the risk of damage to or destruction of the manufacturing equipment will be borne by us.
14. Where, during the period of manufacture of the samples or manufacturing equipment, the partner suspends or terminates the cooperation, all manufacturing costs incurred until this point in time shall be borne by the partner.
15. Even after they have been paid for by the partner, the manufacturing equipment shall remain our property and in our possession at least until the implementation of the contract has been completed. Afterwards, the partner shall be entitled to claim handover of the manufacturing equipment, provided that a mutual agreement has been reached on the time of its handover and the partner has fully complied with his contractual obligations.
16. For orders annulled in the stage of development or start-up time, we reserve the right to charge the costs actually incurred. The tooling costs for change requests will be invoiced additionally on a time and material basis.
17. Subsequent invoicing of part of the difference or the entire difference between the already invoiced proportionate tooling costs and the effective tooling costs shall be possible if the number of units underlying the originally concluded contract is not purchased within the agreed period of time.
18. We will store the manufacturing equipment free of charge for three years after the final delivery to our partner. Subsequently, we will request our partner to give a statement on the further use of this manufacturing equipment within 6 weeks. Our storage obligation shall end if no statement is made or no new order is placed within these 6 weeks.
19. Purchaser-related manufacturing equipment may only be used by us for supplies to third parties following prior written consent from our partner.
Prices
20. Our prices are in Euros, exclusive of value-added tax, packaging, freight, postage and insurance.
Unless specified otherwise, we shall consider ourselves bound by the prices contained in our offers for 30 days after the date of their release.
Terms of Payment
21. Unless otherwise agreed, all invoices shall be due for payment within 30 days from the invoice date after the delivery of goods has resulted. In case of payment within 14 days from the invoice date, a 2% discount shall be granted unless the partner is in default as far as the settlement of accounts receivable is concerned.
22. Where we have undisputedly delivered partially defective goods, our partner shall be under an obligation nevertheless to make payment for the non-defective share of the delivery unless the partial delivery is of no use to him. Apart from that, the partner may only set off due payments against finally established or undisputed counterclaims.
23. If payment deadlines are not met, we shall be entitled to charge default interest at the rate charged to us by the bank for overdraft credits, but at least 8 percentage points above the respective base interest rate of the European Central Bank.
24. In the event of delayed payment, we shall be entitled – following transmission of a written notice to the partner – to suspend the performance of our obligations until the payments have been received.
25. Bills of exchange and cheques will only be accepted where this has been agreed in writing, and only on account of performance and on condition that they can be discounted. Discount expenses will be charged from the day on which the invoice amount was due for payment. Any guarantee for submission of the bill of exchange and cheque in due time and for the lodging of a bill protest shall be ruled out.
26. If it becomes recognisable following conclusion of the contract that our payment claim is at risk owing to the partner’s inadequate financial capacity, we shall be entitled to refuse performance and set the partner a reasonable deadline, within which he must make payment or provide security concurrently with delivery. If the partner refuses to do so or following unsuccessful expiry of the deadline, we shall be entitled to withdraw from the contract and claim damages on the grounds of non-performance.
Delivery
27. Unless otherwise agreed, we will deliver “ex works”, exclusive of packaging. Compliance with the delivery date or delivery period shall be based on our notification of the goods’ readiness for shipment or collection.
28. The delivery period shall commence as soon as our order confirmation is sent and be reasonably extended if the requirements of paragraph 57 are met.
29. Partial deliveries shall be permitted within reasonable limits. They shall be invoiced separately.
30. Production-related excess or short deliveries shall be admissible within a 10 percent tolerance of the overall order volume. The overall price shall thus be adjusted according to their extent.
Shipment and Transfer of Risk
31. Goods reported as ready for shipment and due for delivery shall be taken over by the partner without delay. Otherwise, we shall be entitled, at our own choice, to either dispatch them or store them at the expense and risk of the partner.
32. In the absence of a particular agreement, we will select the means of transportation and the transport route.
33. The risk shall be passed on to the partner on handover of the goods to the railways, the forwarding agent or the freight carrier, or on commencement of the storage, but no later than on departure from the factory or warehouse. This shall also apply if we have taken charge of the delivery.
Delayed Delivery
34. If we are able to foresee that it will not be possible for the goods to be delivered within the delivery period, we shall notify the partner thereof without delay and in writing, inform him about the reasons for the delay and, where possible, indicate the presumable time of delivery to him.
35. If delivery is delayed because of a circumstance referred to in paragraph 57, or as a result of any action or omission of the partner, an extension of the delivery period will be granted appropriately to the circumstances.
36. The partner shall only be entitled to withdraw from the contract if we are responsible for non-compliance with the delivery date and if he has unsuccessfully set us a reasonable period of grace.
Reservation of Proprietary Rights
37. We reserve the right of ownership to the delivered goods until all accounts receivable under the business relationship with the partner have been paid.
38. The partner shall be entitled to sell these goods in the regular course of business, provided he meets his obligations arising out of the business relationship with us in due time. However, he may neither pledge the goods subject to retention of title nor transfer ownership of them as security. He shall be under an obligation to protect our rights if the goods subject to retention of title are resold on credit.
39. If the partner infringes his obligations, especially in the event of delayed payment, we shall be entitled, following unsuccessful expiry of a period of grace allowed for the partner to perform his respective obligations, to withdraw from the contract and take back the goods; statutory regulations on the dispensability of allowing a period of grace shall remain unaffected by this clause. The partner shall be under an obligation to return the goods.
We shall be entitled to withdraw from the contract if an application for the opening of insolvency proceedings against the assets of the partner is filed.
40. Already hereby, the partner assigns to us as security all claims and rights arising from the sale or any potential hiring, for which the partner has been given permission, of goods over which we hold rights of ownership. We hereby accept the assignment.
41. At all times, the partner shall carry out any treatment or processing of the goods subject to retention of title on our behalf. If the goods subject to retention of title are processed or inseparably mixed with other items not owned by us, we shall acquire joint ownership of the new object according to the proportion at the time of processing or mixture between the invoice value of the goods subject to retention of title and the other processed or mixed items.
If our goods are combined or inseparably mixed with other moveable items to form a single object and if the other object is to be considered as the principal object, the partner shall transfer joint ownership to us on a pro rata basis as far as he is the owner of the principal object. The partner shall keep safe any object owned or jointly owned by us on our behalf. In any other respect, the same regulations shall apply to objects having resulted from processing, combination or mixture as to goods being subject to retention of title.
42. The partner shall notify us without delay of any execution measures being taken by third parties in relation to goods subject to retention of title, claims assigned to us or other securities. In this context, the partner shall also hand over to us any documents required for an intervention . This shall also apply to impairments of any other kind.
43. If the value of existing securities exceeds the claims secured by a total of more than 20 percent, we shall be under an obligation, at the partner’s request, to release securities of our choice to the respective extent.
Material Defects
44. The quality of the goods shall be determined exclusively by the agreed technical delivery specifications. In the event that we have to deliver according to drawings, specifications, samples etc. from our partner, the latter shall assume the risk of adequacy for the intended purpose of use. As far as the contractual condition of the goods is concerned, the time at which the risk is passed on to the partner according to Paragraph 33 shall be decisive.
45. We shall not be liable for any material defect caused by inappropriate or improper use, erroneous assembly or ways of putting the goods into operation by the partner or third parties, normal wear and tear, incorrect or negligent handling as well as for the consequences of improper modifications or repair works carried out by the partner or third parties without our approval. The same shall apply to defects, which reduce the value or suitability of the goods only to an insignificant extent.
46. Claims on the grounds of material defects shall come under the statute of limitations after 12 months. This shall not apply if the law imperatively stipulates longer periods, especially in the case of defects of a building and of a product, which has been used for the construction of a building in line with its usual manner of use and has caused the respective building’s defectiveness.
47. Where acceptance of the goods or a test of initial samples has been agreed, any notification of defects shall be ruled out, which the partner could have discovered in the event of careful acceptance or a careful test of initial samples.
48. We must be given the opportunity to establish the notified defect. Upon request, the goods complained of shall be returned to us without delay; if the notice of defect is justified, we shall bear the transportation costs. If the partner does not meet these obligations or makes changes to goods, which were already complained of, without our consent, he will lose any potential claim based on material defects.
49. In the event that a justified notice of defect is made in due time, we will, at our choice, subsequently improve the rejected goods or deliver defect-free replacements.
50. If we do not meet these obligations or fail to do so within a reasonable time in accordance with the provisions of this contract, the partner may set us a final deadline in writing, within which we must fulfil our obligations. Following unsuccessful expiry of this deadline, the partner may demand reduction of the price, withdraw from the contract or either carry out the necessary subsequent improvement himself or have it carried out by a third party at our expense and risk. Any reimbursement of costs shall be ruled out as far as expenses increase because, following our delivery, the goods were taken to another place unless this complies with the intended use of the goods.
51. Statutory rights of recourse of the partner against us shall be in place only in so far as the partner has not reached agreements with his customers that go beyond the statutory claims for defects. In addition, Paragraph 50 last sentence shall apply correspondingly to the extent of claims of recourse.
Other Claims, Liability
52. Unless otherwise specified below, any additional and more far-reaching claims of the partner against us shall be ruled out. In particular, this shall apply to claims for damages due to delay, impossibility of performance, culpable infringement of ancillary contractual obligations, fault upon conclusion of the contract and impermissible acts. Therefore, we shall not be liable for any damages not having occurred to the delivered goods themselves. In particular, we shall not be liable for lost profits or other financial damage suffered by the partner.
53. The aforementioned limitations of liability shall not apply to cases of wilful misconduct, gross negligence on the part of our legal representatives or managerial employees, and in the event of culpable infringement of essential contractual obligations. In the event of culpable infringement of essential contractual obligations, we shall be liable – except for cases of wilful misconduct or of gross negligence on the part of our legal representatives or managerial employees – only for such damage that is typical of this kind of contract and might reasonably have been foreseen.
54. In addition, the limitation of liability shall not apply to cases where, in case of defects in the delivered goods, there is liability under the Product Liability Act for damage to persons or property caused to privately used objects. It shall not be applicable either in case of injury to life, body or health or in the absence of guaranteed characteristics if and as far as the purpose of this guarantee was to protect the partner against damage not occurring to the delivered goods themselves.
55. As far as our liability is excluded or limited, this shall also apply to the personal liability of our employees, staff, personnel, legal representatives and auxiliary persons.
56. The statutory provisions relating to the burden of proof shall remain unaffected by this clause.
Force Majeure
57. Acts of God, industrial disputes, civil unrest, official measures, non-arrival of subcontracted deliveries from our suppliers and other unforeseeable, unavoidable and serious incidents shall exempt the contractual partners from their obligations to perform for the duration of the disturbance and to the extent of its effect. This shall also apply if these incidents occur at a time when the contractual partner concerned is in default, unless he has caused the delay intentionally or through gross negligence. The contractual partners shall be under an obligation within reasonable bounds to provide the necessary information without delay and adjust their obligations to the changed conditions in good faith.
Place of Performance, Place of Jurisdiction and Applicable Law
58. Unless otherwise agreed in the order confirmation, the place of performance shall be our registered office.
59. For all legal disputes, including any lawsuit relating to bills of exchange and cheques, the place of jurisdiction shall be our registered office if the partner is a businessman, a legal entity under public law or a special fund under public law. We shall also be entitled to bring an action at the partner’s place of business.
60. The contractual relationship shall be subject exclusively to the law of the Federal Republic of Germany.
Any application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG – “Vienna Sales Convention”) shall be ruled out.
61. Should a provision in these terms and conditions or a provision within the framework of other agreements be or become ineffective, the effectiveness of all other contractual content shall remain unaffected. In this event, the contractual partners shall be under an obligation to replace the ineffective provision with an effective one coming as close as possible to it in terms of commercial success.
62. The contractual rights of both parties may only be transferred by mutual consent.
