§ 1 Scope
1. The following General Terms and Conditions of Business and Delivery only apply for companies within the meaning of Section 310 BGB (German Civil Code). All contracts, deliveries and other services, including consulting services, information and the like are provided based on these terms and conditions.
2. These terms and conditions also apply for all future business relationships, even if they are not expressly agreed in each case. We are not obliged to comply with the customer’s terms and conditions, even if we have not expressly objected to their application once again upon receipt. We are only obliged to comply with other terms and conditions, if we expressly declare our acceptance of the same in writing.
§ 2 Contract content and scope of supply
1. All offers are non-binding. The following terms and conditions and the offer or the supplier’s written order confirmation alone are binding for the contract content and scope of supply. Ancillary agreements, amendments and assurances as well as guarantees must be confirmed by the supplier in writing to be valid. The customer is not entitled to the delivery of additional parts, work and operating equipment, if this is not specifically and expressly agreed in writing.
2. If standard clauses are agreed, the rules of interpretation in Incoterms 2000 and their supplements apply, unless otherwise specified below.
3. Documents, such as figures, drawings, etc., as well as size, weight and performance specifications are only approximate, unless their binding nature is expressly stipulated. The supplier only provides guarantees if they are specifically agreed. A reference to DIN standards serves to describe the product and does not represent a guarantee.
4. The supplier retains ownership and copyright of quotations, drawings and other documents. These kinds of documents must not be reproduced or made accessible to third parties without the supplier’s consent. The latter also applies for the customer’s documents, which it has marked as confidential.
5. The delivered parts fundamentally comply with the technical provisions applicable in the Federal Republic of Germany. The customer bears the costs of tests and acceptance that go beyond the standard testing at the supplier’s plant. Tests in accordance with a foreign standard and provisions, which are to be performed in the supplier’s country, must be carried out by licensed inspection companies in the Federal Republic of Germany at cost to the customer, unless otherwise expressly provided in the contract itself.
§ 3 Prices and payment
1. The prices apply ex factory, excluding packaging, unless otherwise expressly agreed in the contract. The prices may be adjusted accordingly for changes to material prices and wages, if there is a gap of more than 4 months between the offer date and the date of delivery. Any quotations for packaging, loading, freight, assembly and the like are non-binding. The costs actually incurred are charged on to the customer.
2. In case of export deliveries, all charges, fees, taxes and costs for technical tests, etc., which arise outside the Federal Republic of Germany, must be borne by the customer; the same applies for costs for any necessary legalisation of originating products, consulate fees or the like.
3. Payment is due no later than 30 days after the invoice date without any reduction. An early payment discount of 2% is permitted within 10 days. An early payment discount is prohibited, if purchase price receivables based on previous payable invoices are still outstanding. Any discounts must be deducted from the gross invoice amount. If the time of receipt of the invoice or payment request is uncertain, payment must take place no later than 30 days after the due date and receipt of the counterperformance. Despite any customer provisions to the contrary, we are entitled to initially assign payment to any older debts. If costs and/or interest has/have arisen, we are entitled to first assign the payments to the costs, then to the interest and finally to the main receivable. A payment is only deemed to have occurred once we can dispose of the amount paid without restriction. We reserve the right to receive cheques. They will only be accepted in lieu of payment and apply only after they have been honoured.
4. For domestic deliveries, value added tax will be invoiced as a separate item and is payable upon receipt of the invoice. The value added tax applicable at the time of invoicing applies.
5. In the event of delayed or deferred payment, annual interest of 8% above the base rate pursuant to Section 247 BGB is payable from the due date. This applies irrespective of whether the customer is in default.
6. Delays in payment by the customer or awareness of a material deterioration of its financial situation entitle the supplier to immediately demand full payment or adequate security. This applies irrespective of any additional rights of the supplier from these terms and conditions of delivery.
7. The customer may only offset against the supplier’s claims, if the customer’s counterclaim is undisputed or a legally valid claim exists. The customer may only enforce a right of retention, if the right of retention is based on claims from the contract.
§ 4a Delivery deadline
1. Unless otherwise expressly agreed in the contract, the delivery deadline starts to run on the date of order confirmation, but not before all commercial and technical issues have been clarified, an agreed down-payment has been received and the documents, approvals, etc., to be procured by the customer have been provided or the necessary approvals have taken place.
2. The delivery deadline is complied with, if the delivery item has left the supplier’s plant by the time it expires, or a notification of the readiness for shipment has been sent to the customer. Partial deliveries are permitted.
3. The delivery deadline is extended accordingly in case of disruptions to operations and labour disputes as well as in the event of the occurrence of unforeseeable obstacles over which the supplier has no influence. Unforeseeable obstacles also include delays in the delivery of critical materials or production elements, provided that this demonstrably has a material influence on the completion or delivery of the delivery item and the supplier ordered the materials on time. The delivery deadline will also be extended accordingly, if these kinds of obstacles occur for subcontractors, provided that the order was submitted on time, or during a supplier default. The supplier also accepts no responsibility in the event of an existing delay.
4. Upon communication of a non-binding delivery date or a non-binding delivery deadline, the customer may demand delivery by the supplier 30 days after the expiration of the delivery date or the delivery deadline. The supplier enters into default upon receipt of the demand note. If, instead of asserting a claim as a result of default, the customer wishes to withdraw from the contract and/or demand compensation instead of performance, the customer must set the supplier an adequate grace period at the end of 20 days pursuant to sentence 1 of this subsection. Compensation claims are excluded in the event of slight negligence by the supplier. If, by coincidence, delivery becomes impossible for the supplier while it is in default, the supplier is not liable if a loss would have occurred even if the service or delivery had been provided on time.
5. If shipment is delayed for more than 2 months after notification of the readiness for shipment for reasons for which the supplier is not responsible, the customer bears the corresponding storage costs that arise for the supplier. These costs amount to at least 0.5% of the invoice amount per month at the supplier’s plant. Following the unsuccessful expiration of a granted, reasonable grace period, the supplier may dispose of the delivery item in another manner and deliver to the customer with a reasonably extended deadline.
6. Compliance with the delivery deadline requires the prompt fulfilment of the customer’s contractual duties from this or another contract concluded with the supplier.
§ 4b Framework agreements
1. If the customer withdraws from a framework agreement because an agreement could not be reached between the customer and the supplier in the event of changes to the product design, or the product is no longer required by the customer, or is no longer required in the previous quantities, for technical or commercial reasons, the customer remains obliged to purchase any remaining quantities held by the supplier under the conditions agreed in the framework agreement. The purchase commitment extends to the entire remaining quantities as well as any existing raw material available at this time.
2. If the customer withdraws from a framework agreement for the reasons specified in point 1, for which tool cost amortisation was agreed, the supplier is entitled to invoice any outstanding shares in tool costs separately following the cancellation of the contract.
§ 5 Transfer of risk
1. The risk transfers to the customer at the start of loading of the delivery items at the supplier’s plant.
2. If the shipment is delayed due to circumstances for which the supplier is not responsible, the risk transfers on the date of notification of readiness for shipment.
3. Subsections 1 and 2 of this paragraph also apply for partial deliveries or if the supplier is also performing other services, e.g. shipping. The Incoterms only apply as a cost clause in this respect.
§ 6 Shipping and packaging
1. Any shipping activities by the supplier take place in good faith, but without assuming any liability.
2. Disposable packaging, which is marked as such in the invoice or the shipping documents will not be taken back. Half of the invoiced price will be reimbursed for other packaging returned carriage paid within an appropriate period, if the packaging is in a flawless condition.
§ 7 Reservation of title and security rights
1. The supplier retains ownership of the delivery item until all of the supplier’s receivables towards the customer from the business relationship, including receivables arising in the future, also from contracts concluded at the same time or at a later date, are settled. This also applies if individual or all supplier receivables were included in an open invoice and the balance is drawn and recognised. At the customer’s request, the supplier is obliged to waive the reservation of title, if the customer incontestably settles all receivables associated with the delivery item and provides appropriate security for the remaining receivable from the ongoing business relationship. The supplier may withdraw from the contract if the customer defaults on payment. The taking back of the delivery item and the seizure of the delivery item from the customer by the supplier only results in a withdrawal from the contract if this is expressly declared by the supplier. The supplier’s further legal rights remain unaffected. The customer must immediately inform the supplier in the event of seizures or other interventions by third parties.
2. Processing takes place on behalf of the supplier, but without resulting in any obligations for the supplier. If the supplier’s delivery items are combined with other objects to form a new standard item and the other item is considered the principal item, the customer shall transfer proportional joint ownership in the amount invoiced and store the item for the supplier. The customer is entitled to resell the delivery item in the ordinary course of business, but only subject to the reservation of title. Upon conclusion of the contract with the supplier, the customer assigns all receivables in the amount of the invoice (plus interest and ancillary claims) to the supplier, which arise from the resale of the delivery item to the end customer. The customer may not pledge the delivery item nor assign it as security.
3. If the law to which the delivery item is subject does not permit the reservation of title, but permits the supplier to reserve other rights to the delivery item; the supplier may exercise all rights of this nature. The customer is obliged to cooperate with any supplier measures which it intends to take to protect its property or to establish any other right to the delivery item in this respect.
§ 8 Notice of defects
1. Notwithstanding its rights from Section 9, the customer may not refuse acceptance of the delivery in the event of minor defects that do not impair its use.
2. The customer is obliged to immediately check all delivery items for integrity, completeness and freedom from obvious defects immediately after receipt.
3. Complaints must be communicated directly to the supplier; complaints due to incomplete or incorrect orders or due to identified defects must be communicated immediately, no more than 14 days after the arrival of the delivery at the destination. Complaints due to defects that are not immediately apparent must be communicated immediately after they are identified. The customer’s warranty claims lapse if complaints are not promptly reported.
§ 9 Warranty
1. The agreed quality of the delivered items is specified by the supplier’s product description. The information provided by the supplier on the delivery or service item in catalogues, brochures and price lists merely represent descriptions, characterisations or guide values, unless otherwise provided by the order confirmation. Minor, insignificant deviations from the information in the catalogue or previously delivered products are not considered defects. The exclusion of customary deviations must be expressly agreed to in writing.
2. Claims raised against the supplier lapse within a year of the date of the statutory commencement of the period of limitation, provided that the supplier is not liable due to intent or fraudulent concealment of a known defect or loss of life, physical injury or damage to the health of the customer. The liability in accordance with the German Product Liability Act remains unaffected. In the event of a slightly negligent breach of duties, the supplier’s liability is limited to the average amount typically foreseeable for this kind of contract based on the nature of the product. This also applies in the event of slightly negligent breaches of duty by the supplier’s statutory representatives or vicarious agents. Liability is excluded for a negligent breach of immaterial contractual obligations. The supplier is only liable for damages, which do not arise on the delivery item itself - for any legal reason whatsoever - in the event of intent, gross negligence by the proprietor or the executive bodies or managers; in the event of a culpable loss of life, physical injury or damage to health; in the event of defects as well as other circumstances, which the supplier has fraudulently concealed; or in the event of defects, whose absence the supplier has guaranteed, if the supplier has provided a guarantee of quality or another guarantee. The supplier’s liability is expressly excluded for any resulting removal and installation costs for aircraft, vessel or rail vehicle parts (especially costs for recall actions, etc.).
3. The customer must independently check whether products ordered from the supplier are suitable for its intended purposes. The provision of unsuitable products only represents a defect, if the supplier has confirmed the suitability to the customer in writing.
4. The delivery of a flawless product (replacement delivery) essentially takes place concurrently with the surrender of the defective product. The supplier is entitled to refuse to provide a replacement delivery, if the customer has already permanently used the defective product, or has used it over an extended period of time. However, if the customer is entitled to demand a replacement delivery, the supplier is entitled to assert compensation for the customer’s use of the product and refuse to provide supplementary performance until the compensation for use has been paid.
5. The supplier bears the costs that arise with the subsequent delivery, especially logistics, transport and wage costs, provided that the customer has not moved the product to a location that differs from the one at which the company headquarters were located at the time of conclusion of the contract. Increased costs of reworking or replacement, which arise because the item was moved out of the Federal Republic of Germany are borne by the customer. The supplier merely bears the costs that would have arisen if the part had remained in the Federal Republic of Germany.
6. The lapse of a claim raised against the supplier is not impeded by negotiations conducted between the customer and the supplier’s representatives. In every case, negotiations on claims raised against the supplier are considered to have been refused with immediate effect, if the negotiations are abandoned or discontinued. This clause does not result in a reversal of the burden of proof.
7. Modifications and/or repair work performed incorrectly by the customer or third parties without the supplier’s prior approval results in a waiver of any liability for resulting consequences.
8. In the event of the delivery of layout plans, implementation drawings and installation plans, the supplier only assumes liability for the accuracy of the dimensions of its own scope of supply.
9. Supplier information on the properties of its products correspond to the results of the supplier’s measurements and calculations.
10. The supplier is not liable for defects that result from measures or designs that the customer expressly requested, or materials or products that the customer has delivered itself.
11. The supplier is not liable for wear parts and normal wear and tear, or for defects that arose as a result of the following: incorrect or negligent storage, handling and use, assembly or commissioning of the delivery items by the customer or a third party; use of unsuitable materials, unsuitable installation conditions, etc.; unusual effects of any kind on the delivery item, e.g. by vibrations, the introduction of foreign objects, chemical, electronic, electrochemical influences and other circumstances that arise after the transfer of risk, provided that they are not attributable to the supplier.
12. If the product has already been delivered to a consumer, the customer is essentially only entitled to assert claims for defects against the supplier, which its customer raises against it. This does not apply if the product was returned due to goodwill arrangements agreed with the supplier. Moreover, the customer is not entitled to withdraw from the contract with the supplier, if the customer had to take back the product because it did not properly fulfil its supplementary performance obligation, especially because it culpably allowed a set supplementary performance deadline to lapse without result. The supplier is only obliged to reimburse expenses pursuant to Section 439 (2) BGB if the customer immediately notifies the supplier of a request for supplementary performance by its end customer in writing, together with the intended nature of the supplementary performance as well as the approximate costs, and this has not immediately been rejected by the supplier. The customer is obliged to comply with supplier proposals relating to a more cost-effective version of the supplementary performance.
§ 10 Withdrawal from the contract by the supplier
1. The supplier may completely or partially withdraw from the contract, if unforeseen events change the economic significance of the contract or the relationship between the service and consideration so dramatically, or impair the supplier’s operation so significantly, that the performance of the contract becomes unreasonable for the supplier.
2. The supplier may refuse the further performance of the contract and demand the reimbursement of costs, if it is expected that the customer will not be able to meet its contractual obligations, or will not be able to meet them on time, especially the payment of the agreed amounts due to a deterioration of its financial circumstances or due to the intervention of public authorities, especially interventions that impact on the transfer of payments, or if the payments will not benefit the supplier at its registered office.
§ 11 Partial invalidity
1. If a provision in these terms and conditions and any affected additional agreements are or become invalid, this will not affect the validity of the contract as a whole. The contract partners shall replace the invalid provision with a regulation that most closely resembles the economic success of the invalid provision.
§ 12 Applicable law
1. Exclusively the law of the Federal Republic of Germany applies, unless otherwise agreed. The application of the Convention on the International Sale of Goods within the meaning of the Hague Sales Convention is excluded.
§ 13 Review of the content of these terms and conditions
1. When reviewing the adequacy of these terms and conditions, it must be remembered that the supplier almost exclusively delivers to merchants within the meaning of Section 310 GBG and that the supplier also receives deliveries from subcontractors subject to similar terms and conditions of delivery.
§ 14 Legal domicile
1. The legal domicile is the supplier’s registered office. The supplier is also entitled to take legal action at the registered office of the customer’s headquarters or branch office.
Last revised: 14/09/2011