Sale and Supply Conditions
1. Conclusion of a Contract
a) We conclude supply contracts exclusively on the following conditions. These are also valid for future business relationships, even if they are not subsequently expressly agreed.
b) Our offers are non-binding. We are only obliged according to the provisions of our written order confirmation. Changes and supplements require written form for reasons of proof.
c) Conflicting conditions of the ordering party, particularly purchase conditions, are not constituent of the contract unless they are expressly and (for reasons of proof) accepted in writing.
d) Our field sales representatives are not authorised to conclude contracts.
e) All documents and objects, for example illustrations, drawings and calculations, which were/are issued to the ordering party as part of the business relationship, remain our property and are subject to our copyright. Passing on to third parties is only permitted if the ordering party has received our express written permission.
2. Supply Lead Times, Acceptance Obligations
a) The supply lead time begins strictly with the sending of the order confirmation, but not before all design details have been clarified and the ordering party has provided all of the documents, samples, models, data, drawings, authorisations and releases which he has to acquire. The supply date is the date of dispatch. Should the dispatch be delayed due to circumstances which are no fault of ours, the allocation date will be the supply date. The conformance to the supply lead time assumes the fulfilment of the contract obligations by the ordering party. In the case of agreed dates, we only fall into delay through demand notice.
We are entitled to partial deliveries and partial service performance.
b) Should punctual supply be hindered by events outside of our control, namely cases of force majeure (e.g. war, blockade, fire, industrial dispute, disturbance of our operations or those of carefully selected sub-suppliers which is no fault of ours), unforeseeable official actions or material procurement difficulties in spite of careful selection of sub-suppliers known to be reliable, we are entitled to postpone the time point of supply by the duration of the hindering event. We will immediately inform the ordering party of the occurrence of such events. If the duration of the hindrance exceeds one month, both parties are entitled to withdraw from the not yet fulfilled part of the contract. This is only valid for the ordering party following the fruitless expiry of a subsequent delivery time period to be set by him of a minimum of three weeks in the case of series tools or eight weeks in the case of tools to be custom manufactured to customer specifications. Damage claims cannot be made by the ordering party in these cases.
c) Should we fall into delay, the ordering party is entitled, following the fruitless expiry of an appropriate subsequent time period to be set by him of at least three weeks in the case of series tools or eight weeks in the case of tools to be custom manufactured to customer specifications, to withdraw from the contract or to demand a reduction.
The ordering party is only entitled to make damage claims or to a right of withdrawal in the case that the delay is due to a breach of contract caused by our intention or by gross negligence, or in the case that significant contractual obligations are breached through our fault, or insofar that a guarantee has been accepted by us. Provided the supply delay is not due to a breach of contract caused by our intention and a guarantee does not exist, our damages liability is limited to foreseeable, typically occurring damage. Except for the case of intention or gross negligence, a liability for lost profits is excluded. A change in the burden of proof to the disadvantage of the ordering party is not associated with the preceding regulations.
d) In the case of call-off orders without agreement of duration, production lot sizes and acceptance dates, we can demand a binding determination of these three months after the order confirmation at the latest. If the ordering party does not comply with this demand within three weeks, we are entitled to set a three-week subsequent time period and, following the expiry of this, withdraw from the contract or decline the supply and demand damages.
e) If the ordering party requests that necessary tests are carried out by us, the nature and scope of the tests are to be agreed. If this does not occur by the conclusion of the contract at the latest, the costs are to be carried by the ordering party.
f) If a technical acceptance according to special conditions is agreed, the ordering party must carry this out at our works at his own cost immediately after announcement of the readiness for acceptance. If the acceptance does not take place in spite of the setting of an appropriate subsequent time period which is provided with the advice of the passed acceptance date with the effectless passing of the subsequent time period, we are entitled to send the goods or store them at the cost and risk of the ordering party. With this, the goods are considered to have been accepted. g) If dispatch or delivery is delayed at request of the ordering party by more than one month after the reporting of readiness for dispatch, the ordering party can be charged storage costs of 0.5% of the price of the objects to be supplied for every started month up to a maximum of 5%. The proof of higher or lower storage costs remains free to the contract parties.
g) If dispatch or delivery is delayed at the request of the Purchaser by more than one month after notification of readiness for dispatch, the Purchaser may be charged storage costs in the amount of 0.5% of the price of the items of the delivery for each month commenced, but not more than a total of 5%. The contracting parties shall be free to prove higher or lower storage costs.
3. Dispatch and Transfer of Risk
a) The risk transfers to the ordering party when the goods leave our works.
b) If the dispatch is delayed for reasons for which the ordering party is responsible, the risk transfers on the date of allocation.
c) We take no responsibility for the ordering party's conformance to general dispatch regulations. Dispatch by a special route, via a forwarding agency or to destinations other than the address of the ordering party is to be expressly prescribed in each individual case.
d) We are not obliged to insure the dispatched goods unless there is express agreement to the contrary.
e) The ordering party is obliged to dispose of packaging at his own expense. A return will not take place from our side (except for pallets).
4. Liability for Delivery Shortcomings
a) The Purchaser shall notify us of any visible material defects without undue delay, but no later than 12 calendar days after collection in the case of delivery ex works, otherwise after delivery, and of any hidden material defects without undue delay after discovery, the latter, however, no later than within the warranty limitation period. Failure to give notice of defects in due time shall exclude any claim of the Purchaser for breach of duty due to material defects. This shall not apply in the case of intentional, grossly negligent or fraudulent action on our part, in the case of injury to body, life or health or assumption of a guarantee of freedom from defects, or other legally mandatory liability facts and in the case of the right of recourse in the supply chain (§ 478 BGB).
In addition, the transport company must be notified of any material defects apparent upon delivery and the written or textual recording of the defects must be arranged by the transport company, otherwise the products shall be deemed to be free from transport damage. Insofar as unit number and weight defects were already recognizable upon delivery in accordance with the above inspection obligations, the Purchaser must complain about these defects to the carrier upon receipt of the products and have the complaint certified. Failure to initiate the notification of defects to the carrier or to have the notification of defects certified in due time shall exclude any claim of the Purchaser for breach of duty due to material defects. The foregoing shall not apply in the event of intentional, grossly negligent or fraudulent action on our part, in the event of injury to body, life or health, in the event of the assumption of a guarantee of freedom from defects, in the event of the assumption of a procurement risk or in the event of liability under a statutory mandatory liability provision as well as in the event of the right of recourse in the supply chain (§ 478 BGB).
Upon commencement of processing, treatment, combination or mixing with other items, the delivered products shall be deemed to have been approved by the customer in accordance with the contract. The same shall apply in the event of onward shipment from the original place of destination, insofar as the combination does not correspond to the intended use of the delivery item.
We shall be given the opportunity to inspect any notified defects on site.
b) We are liable for material defects as follows:
aa) We will repair, deliver or perform services again for all those parts or services of our choice which show a material defect within the limitation period - regardless of operating time - provided that the cause of this was already present at the time of the transfer of risk.
bb) All warranty claims expire after 12 months. This does not apply insofar the law according to §§ 438 par. 1 no. 2 (buildings and objects for buildings) 479 par. 1 (contribution claim) and 434 a par. 1 no. 2 (defects or deficiencies in the construction) BGB [Bürgerliches Gesetzbuch - German Civil Code] dictates longer periods, as well as in cases of injury to life, body or health, in the case of an intentional or gross neglect of duty on our side and fraudulent concealment of a shortcoming. The legal rules regarding expiry suspension, suspension and restart of the time periods remain unaffected.
cc) In the case of notification of defects, payments made by the ordering party may be held back in an adequate relation to the material defects occurred. The ordering party can only retain payments if a notification of defects is asserted which is justified beyond doubt. If a notification of defects is wrongly made, we are entitled to demand compensation from the ordering party for the arising expenses.
dd) Firstly, the opportunity to provide retrospective fulfilment must be given to us within an adequate period of time.
ee) If the retrospective fulfilment fails, the ordering party can - regardless of possible damage claims - withdraw from the contract or reduce the payment according to figure 6.
ff) Claims of the ordering party due to expenses for the retrospective fulfilment, especially transport, route, labour and material costs, are excluded insofar the expenses increase because the article of delivery was subsequently brought to a different place than the plant of the ordering party unless the transport conforms to the intended usage.
gg) Warranty claims do not exist with only negligible deviation from the agreed condition, with only negligible impairment of usage, with natural wear and tear or damages which occur after the transfer of risk due to incorrect or negligent treatment, excessive strain, inadequate equipment, defective construction work, inadequate building ground or due to particular external influences, which are not implied in the contract. Also if improper changes or maintenance work are conducted by the ordering party or third parties, no claims arise due to these and the resulting consequences.
hh) Contribution claims according to § 478 BGB (Contribution of the contractor) only exist against us if the ordering party has not reached any agreements with his purchaser that exceed the legal claims. For the scope of the contribution claim of the ordering party against us according to § 478 par. 2 BGB the arrangement under gg) is furthermore valid.
ii) If defect samples are sent to the ordering party for examination, we only are only liable that the delivery is executed corresponding to the defect samples under consideration of any possible corrections.
c) After we have advised the ordering party we are liable for the functionality and suitability of the form only with express written assurance provided that the ordering party has given the information which was necessary for the proper performance of the service.
d) Apart from that the arrangement under point 6 is valid for damage claims. Claims that exceed this or claims other than those arranged by point 4 of the ordering party against us and our subcontractors because of a material defect are excluded.
e) In the presence of defects of title the abovementioned arrangements are correspondingly valid.
5. Impossibility; Adaptation of the Contract
a) If the delivery is impossible, the ordering party is entitled to claim damages unless we are not responsible for the impossibility. However this claim of the ordering party is limited to 10% of the value of that part of the delivery that cannot be taken into appropriate operation because of the impossibility. This limitation is not valid insofar as a mandatory liability is applied in cases of intention, gross negligence or because of injury to life, body or health - a change in the burden of proof to the disadvantage for the ordering party is not associated with this. The right of the ordering party to withdraw from the contract remains unaffected.
b) If unpredictable events in terms of point 2. b) significantly change the commercial meaning or the content of the delivery or have a significant impact on our company, the contract is appropriately adapted in good faith. Insofar as this is not justifiable commercially, we have the right to withdraw from the contract. Insofar as we make use of this right of withdrawal, we must immediately communicate this to the ordering party after the awareness of the consequences of the incident, even if an extension of the supply period was agreed with the ordering party first.
6. General Limitation of Liability
a) Damage and reimbursement of expenses claims of the ordering party (subsequently: damage claims) regardless of which legal ground especially because of the breach of duties arising from the contractual obligation and from unlawful acts are excluded.
b) This does not apply insofar there is a mandatory liability, e.g. according to the Product Liability Act, in cases of intention, because of injury to life, body or health, because of the breach of essential contractual obligations. The damage claims for the breach of essential contractual obligations is however limited to the foreseeable damage typical for the contract, unless intention or gross negligence are present or unless there is a liability because of injury to life, body or health. A change of the burden of proof to the disadvantage of the ordering party is not associated with the abovementioned arrangements.
c) Insofar the damage claim liability against us is excluded or limited this also applies regarding the personal claims for damage liability of our co-workers, employees, jobholders, representatives and subcontractors.
7. Terms of Payment
a) Prices are valid ex works Simonswald. We calculate dispatch and packaging separately at cost price. The legal VAT is "not" included in our prices and is shown on the date of billing in the legal amount. An early settlement discount must always be agreed separately.
b) Payment must be made to one of our accounts without discount, unless agreed differently in the individual case, as follows:
- 30% prepayment within 8 days of the arrival of our order confirmation,
- 60% within 8 days after our announcement of readiness for dispatch
- 10% within 30 days after the delivery
c) The ordering party is not entitled to retain or off-set payments because of alleged counterclaims including warranty claims, unless the counterclaims are indisputable or legally asserted. The right of the ordering party in non-commercial business transactions to assert rights of retention which are based on the same legal relationship are unaffected by this.
d) In case of the transgression of the payment targets contained in point 7. b), we are entitled to demand interest for delay 8% above the base rate of the European Central Bank in commercial business transactions, and interest for delay 5% above the base rate of the European Central Bank in non-commercial business transactions. We reserve the right for evidence of higher damage.
e) If the ordering party falls into arrears with his payment by more than one week with a not inconsiderable sum or if circumstances arise which justify legitimate doubts concerning his creditworthiness, all our claims are due immediately regardless of the discounted drafts. In these cases we are also entitled to further deliver only against prepayment or by way of security or to refuse a further fulfilment of the contract after an adequate subsequent time period.
8. Retention of Property
a) All delivered goods remain our property until the ordering party has fulfilled all payment obligations; they only devolve to the ordering party when he has fulfilled all obligations of his business relationship with us. This is also valid if the purchase price for certain deliveries of goods, designated by the ordering party, is paid. On open accounts, the reserved property counts as security for the respective outstanding balance claim.
b) The ordering party may resell the goods as part of his orderly and usual business operations under retention of property. In this case he cedes the claims against his purchasers arising from the resale at this time until the complete fulfilment of all obligations with all ancillary rights to us. On our request the ordering party is obliged to communicate the cession to his purchasers and to give us the information and documents required to assert the rights towards these purchasers.
c) The ordering party collects and manages the revenues which he realises through the sales in the context of his orderly and usual business operations in cash or non-cash payments in trust for us, and this clearly separate from his own monies.
d) The ordering party may process, reform and mix the goods as part of his orderly and usual business operations. Processing or reforming, however, always take place for us as manufacturer without liabilities for us resulting from this. If our (joint-) ownership expires by association, it is already at this time agreed that the ordering party's (joint-) ownership of the entity in terms of value share (authoritative: invoice value) transfers to us. The ordering party keeps our (joint-) property safe for us free of charge and with due commercial care.
e) The pledging of goods or their transfer of ownership for security of a debt, which is wholly or in part our property due to this retention of property clause, is forbidden to the ordering party. The ordering party must inform us immediately of a pledging or other encroachment upon our rights by third parties.
f) The sale of goods which are our property due to this clause or for any other reason, outside of the orderly and usual business operations or the transferral of demands due to us from this clause, is forbidden to the ordering party.
g) Should the value of the deposit given by us, due to this clause or for other reasons due to purchase price demands or because of a remaining open balance, exceed the specified demands by more than 20% in total, we are obliged to a repatriation of deposits according to our choice at the ordering party's request.
h) The ordering party is obliged to insure the retained goods against theft, breakage, fire, and water damage and other damage at his own cost and to prove the conclusion of appropriate insurances on request. The ordering party's insurance claims due to destruction, damage or other value reduction of the retained goods transfer to us from the ordering party at this time.
i) Should the ordering party fall into arrears with his payment obligations by more than one week, we are entitled to reclaim the retained goods at the ordering party's expense and to keep them safe with us until complete payment of the open demands are made. Reclaiming only serves the securing of our demands. The other obligations of the parties given in the supply contract remain - with the exception of the owning party's preliminary ownership right - preserved in their complete scope.
9. Work Piece Related Models and Manufacturing Equipment
a) If the ordering party provides models or manufacturing equipment, these are to be sent to us free of charge. We can demand that the ordering party takes back such equipment at any time. If he does not comply with such requests within three months, we are entitled to send these back to him at his expense. The costs for maintenance, changes and the replacement of his equipment are carried by the ordering party. The ordering party is liable for technically correct construction and an equipment design which ensures the manufacturing purpose. Without special arrangement, we are not obliged to check the agreement of the provided equipment with accompanying drawings or samples.
b) If models, tools and other manufacturing equipment produced or procured by us on behalf of the ordering party, we will invoice the costs of these.
c) All models and manufacturing equipment are handled by us with the care which we always apply in our own dealings. On request of the ordering party, we are obliged to insure his equipment at his expense. Claims for replacement from resulting damage are excluded.
d) If supply takes place according to the drawings or other information from the ordering party and copyrights of third parties are breached through this, the ordering party releases us from all claims. We reserve our property rights and copyrights on our drawings and other documents issued to the ordering party and also on our suggestions for the advantageous design and manufacturing of the moulds. They may not be made available to third parties and may be demanded back by us at any time. The ordering party can only make claims against us based on copyright or other right in relation to models and manufacturing equipment sent in or produced or procured on his behalf if he has advised us of the existence of such rights.
e) Constructions manufactured by us on behalf of the ordering party and which are accepted by us for all function guarantees remain our property. Copyrights and other rights are attributed exclusively to us.
10. Place of Performance and Jurisdiction, Applicable Law, Severance Clause, Priority in the Case of Interpretation Doubts
a) The place of performance is the location of our supply works.
b) If the ordering party is a qualified merchant, a legal entity of public law or public legal special assets or if he has no general jurisdiction nationally, the court responsible for our location is agreed for all disputes resulting from the contractual relationship. This is also valid for bills of exchange and cheque claims. We are also entitled to claim at the ordering party's location.
c) German law is exclusively valid for the legal relationship of the parties. The application of the standard UN Convention on the International Sale of Goods (CISG) is excluded.
d) If individual provisions of these business conditions or a provision in a supplementary agreement be or become invalid in part or entirely, this shall not affect the validity of the other provisions. In place of the invalid provisions or the invalid part of the provisions, the legally valid regulation is valid which reflects the purpose of the invalid provision as closely as possible.
e) We have translated our sales and supply conditions into English for our English-speaking business partners for service reasons. In the case of interpretation doubt in the content, the German text has sole authority.