General terms and conditions of business
The documents belonging to the offer, such as illustrations, drawings, weights and measures, are only approximate unless they are expressly designated as binding. The supplier reserves proprietary rights and copyrights to cost estimates, drawings and other documents; they may not be made accessible to third parties. The supplier is obliged to make plans designated as confidential by the purchaser accessible to third parties only with the purchaser’s consent. The customer assumes sole responsibility for the documents to be provided by him, such as drawings, gauges, samples or similar. The customer is responsible for ensuring that the design drawings submitted by him do not infringe the property rights of third parties. The supplier is not obliged to check with the purchaser whether any property rights of third parties are infringed by the submission of offers based on the execution drawings sent in by him in the event of execution. If the supplier is nevertheless liable, the purchaser must indemnify him. This shall not apply in the event of intent or gross negligence on the part of the owner or senior staff. Samples will only be supplied against payment.
II. Scope of delivery
The written order confirmation of the supplier is decisive for the scope of the delivery, in case of an offer of the supplier with temporal binding and timely acceptance the offer will lapse, if no timely order confirmation is available.
Additional agreements and changes require the written confirmation of the supplier. If special tools are ordered, the order quantity may be exceeded or fall short by approximately 10%, but at least by 2 pieces. The actual delivered quantity will be charged.
III. Price and payment
In the absence of a special agreement, the prices are ex works including loading at the factory, but excluding packaging. Value added tax at the respective statutory rate shall be added to the prices. In the absence of a special agreement, payment shall be made without any deduction free Supplier’s paying agent within 30 days of the invoice date (also in the case of partial delivery quantities). Withholding of payments or offsetting due to any counterclaims of the customer disputed by the supplier is not permitted.
IV. Delivery time
The delivery period shall commence with the dispatch of the order confirmation, but not before the customer has provided the documents, permits, releases to be procured by him and not before receipt of an agreed down payment. The delivery period shall be deemed to have been observed if the delivery item has left the factory or readiness for dispatch has been notified before the period expires. The delivery period shall be extended appropriately in the event of measures within the scope of industrial disputes, in particular strikes and lock-outs, as well as in the event of unforeseen obstacles which are beyond the control of the supplier, insofar as such obstacles demonstrably have a considerable influence on the completion or delivery of the delivery item. This shall also apply if the circumstances occur in the case of sub-supplies. The above-mentioned circumstances are also not the responsibility of the supplier if they occur during an already existing delay. In important cases, the supplier will inform the customer as soon as possible of the beginning and end of such obstacles. If dispatch is delayed at the request of the customer, the supplier shall be entitled, after the setting and fruitless expiry of a reasonable deadline, to dispose otherwise of the delivery item and to supply the customer within a reasonably extended period. Compliance with the delivery period presupposes that the customer has fulfilled its contractual obligations.
V. Transfer of Risk and Acceptance
The risk shall pass to the customer at the latest when the delivery of the parts is dispatched, even if a partial delivery is made or the supplier has undertaken other services, e.g. shipping costs or delivery and installation. At the request of the customer, the supplier will insure the consignment against theft, breakage, transport, fire and water damage and other insurable risks at the customer’s expense. If dispatch is delayed due to circumstances for which the Purchaser is responsible, the risk shall pass to the Purchaser on the day of readiness for dispatch; however, the Supplier shall be obliged to effect the insurance policies requested by the Purchaser at the latter’s request and expense. Delivered items, even if they have minor defects, are to be accepted by the customer without prejudice to the rights under Section VII. Partial deliveries are permissible.
VI. Retention of title
The supplier reserves the right to retain title to the delivery item until all claims of the supplier against the customer arising from the business relationship, including future claims, have been settled, this includes contracts concluded simultaneously or at a later date. This shall also apply if individual or all claims of the supplier have been included in a current account and the balance has been struck and accepted. In the event of conduct on the part of the customer in breach of contract, in particular default of payment, the supplier shall be entitled to take back the delivery item after a reminder and the customer shall be obliged to surrender it. The taking back as well as the seizure of the object by the supplier shall only constitute a withdrawal from the contract if the supplier has expressly declared this in writing. In the event of seizure or other interventions by third parties, the Purchaser shall notify the Supplier immediately in writing. The Purchaser shall be entitled to resell the delivery item in the ordinary course of business. However, he hereby assigns to the Supplier all claims, including all ancillary rights, which accrue to him from the resale against the customer or against third parties. Even after the assignment, the purchaser is authorised to collect these claims as long as he remains in compliance with the contract and is not insolvent. The Supplier’s authority to collect the receivables itself shall remain unaffected by this; however, the Supplier undertakes not to collect the receivables as long as the Purchaser duly meets his payment obligations and there is no inability to pay. Otherwise, the supplier can demand that the customer informs him of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors of the assignment. If the delivery item is resold together with other goods which do not belong to the supplier, the customer’s claim against the purchaser shall be deemed assigned in the amount of the delivery price agreed between supplier and customer. If the Supplier’s securities exceed the realisable value of the claims by 20%, the Supplier must release the exceeding claims. The Supplier shall be entitled to insure the delivery item at the Purchaser’s expense against theft, breakage, fire, water and other damage, unless the Purchaser can prove that it has taken out such insurance itself. The customer may neither pledge the delivery item nor assign it as security. In the event of seizure, confiscation or other dispositions by third parties, he must inform the supplier immediately. If, in connection with the payment of the purchase price by the customer, a liability of the supplier based on a bill of exchange is established, the reservation of title, including its agreed special forms, or other securities agreed to secure payment shall not expire before the bill of exchange is honoured by the customer as drawee.
VII. Liability for defects of the delivery
The supplier is liable for defects in the delivery, which also includes the absence of expressly warranted characteristics, to the exclusion of further claims, without prejudice to Section IX 4, as follows: All those parts which prove to be unusable or significantly impaired in their usability within 6 months of delivery as a result of circumstances prior to the transfer of risk – in particular faulty design, poor construction materials or defective workmanship – shall be repaired or replaced free of charge at the discretion of the supplier. The discovery of such defects must be reported to the supplier in writing without delay. Replaced parts become the property of the supplier. The supplier shall only be liable for defects in the material supplied by the customer if he should have been able to recognise the defects when applying professional care. If dispatch is delayed through no fault of the supplier, liability shall expire at the latest 12 months after the transfer of risk. For essential third-party products, the liability of the supplier is limited to the assignment of the liability claims to which he is entitled against the supplier of the third-party product. In the case of production according to the customer’s drawing, the supplier is only liable for the execution according to the drawing. The right of the customer to assert claims arising from defects shall in all cases become statute-barred from the time of the timely notification of defects, in 6 (six) months, but at the earliest upon expiry of the warranty period. No warranty is given for damage which has occurred for the following reasons: unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling, unsuitable operating materials, chemical, electrochemical or electrical influences, unless they are attributable to a fault on the part of the supplier. After consultation with the supplier, the customer must give the supplier the necessary time and opportunity to carry out all repairs and replacement deliveries which the supplier deems necessary at its reasonable discretion; otherwise the supplier is released from liability for defects. Only in urgent cases of danger to operational safety and to prevent disproportionately large damage, in which case the supplier must be notified immediately, or if the supplier is in default with the rectification of the defect, does the customer have the right to rectify the defect himself or have it rectified by third parties and to demand reimbursement of the necessary costs from the supplier. Of the direct costs arising from the repair or replacement delivery, the Supplier shall bear – insofar as the complaint proves to be justified – the costs of the replacement part, including shipping. Otherwise, the customer shall bear the costs. The warranty period for the replacement part and the repair is 3 months, but it runs at least until the expiry of the original warranty period for the delivery item. Any modifications or repair work carried out improperly by the customer or third parties without the prior approval of the supplier shall invalidate liability for the consequences thereof. Further claims of the purchaser, in particular a claim for compensation for damage not occurring to the delivery item itself, are excluded. This exclusion of liability shall not apply in the case of intent, gross negligence on the part of the owner or senior staff or culpable breach of material contractual obligations. In the event of culpable violation of essential contractual obligations, the supplier is only liable – except in cases of intent and gross negligence on the part of the owner and executive staff – for reasonably foreseeable damage typical of the contract. Furthermore, the exclusion of liability shall not apply in cases where liability is assumed under the Product Liability Act (Produkthaftungsgesetz) for personal injury or property damage to privately used objects in the event of defects in the delivery item. It shall also not apply in the absence of properties that are expressly warranted if the warranty was specifically intended to protect the customer against damage that did not occur to the delivery item itself.
VIII. Liability for secondary obligations
If, through the fault of the supplier, the delivered item cannot be used by the purchaser in accordance with the contract as a result of omitted or faulty implementation of suggestions and advice before or after conclusion of the contract as well as other contractual ancillary obligations – in particular instructions for operation and maintenance of the delivery item – the provisions of Sections VII and IX shall apply accordingly, excluding further claims of the purchaser.
IX. Right of the customer of withdraw from the contract, rescission and other liabilities of the supplier
The customer may withdraw from the contract if the completion of the contract becomes impossible for the supplier before the transfer of risk. The same applies in the event of incapacity on the part of the supplier. The customer may also withdraw from the contract if, in the case of an order for similar items, the execution of a part of the delivery becomes impossible in terms of quantity and the customer has a justified interest in refusing a partial delivery; if this is not the case, the customer may reduce the consideration accordingly. If there is a delay in performance within the meaning of Section IV of the Terms and Conditions of Delivery and the customer grants the Supplier in default a reasonable period of grace with the express declaration that he will refuse acceptance of the performance after expiry of this period and if the period of grace is not complied with, the customer shall be entitled to withdraw from the contract. If the impossibility occurs during the delay in acceptance or through the fault of the customer, the customer shall remain obliged to make counter-performance. Furthermore, the customer shall be entitled to rescind the contract if the supplier allows a reasonable period of grace granted to him for the repair or replacement delivery with regard to a defect for which he is responsible within the meaning of the terms and conditions of delivery to expire fruitlessly through his own fault. Furthermore, the customer shall be entitled to rescind the contract if the supplier allows a reasonable period of grace granted to him for the repair or replacement delivery with regard to a defect for which he is responsible within the meaning of the terms and conditions of delivery to expire fruitlessly through his own fault. The right of the customer to rescind the contract shall also exist in other cases of failure of the repair or replacement delivery by the supplier. All other further claims of the customer, in particular for termination or reduction as well as for compensation for damage of any kind, including such damage which has not occurred to the delivery item itself, are excluded. This exclusion of liability shall not apply in the case of intent, gross negligence on the part of the owner or executive employees or culpable violation of essential contractual obligations. In the event of culpable violation of essential contractual obligations, the supplier shall be liable – except in cases of intent and gross negligence on the part of the owner and executive staff – only for reasonably foreseeable damage typical for the contract. Furthermore, the exclusion of liability shall not apply in cases where liability is assumed under the Product Liability Act for personal injury or property damage to privately used objects in the event of defects in the delivery item. It shall also not apply in the event of the absence of properties which were expressly warranted if the warranty was specifically intended to protect the customer against damage which did not occur to the delivery item itself.
X. Special conditions for processing contracts (completion, refurbishment, reworking or restoration of tools).
In addition to or in terms of derogation from the terms of delivery for such processing contracts: Invoices are payable immediately without deduction. The processor shall not be liable for the behaviour of the material sent to the processor. His claim to remuneration remains unaffected. If the material becomes unusable during processing through the fault of the processor, the processor’s claim for remuneration and any claim for damages on the part of the customer shall lapse. This exclusion of liability shall not apply in the event of intent or gross negligence on the part of the owner or executive employees.
XI. Other liability
Insofar as liability on the part of the Supplier is given, regardless of the legal grounds, this shall be limited to a maximum of 5% of the value of the delivery quantity concerned. This limitation of liability shall not apply in the event of intent or gross negligence on the part of the owner or senior staff and in those cases in which liability is assumed under the Product Liability Act for personal injury or property damage to privately used objects in the event of defects in the delivery item.
XII. Place of jurisdiction
For all disputes arising from the contractual relationship, if the customer is a registered trader, a legal entity under public law or a special fund under public law, legal action shall be taken at the court having jurisdiction for the head office or for the branch office of the supplier executing the delivery. The Supplier shall also be entitled to bring an action at the customer’s head office.