General terms and conditions

Transcription

1 General terms and conditions 1. Scope Our offers, deliveries and other services are exclusively carried out based on the following terms of sale and delivery. We shall not acknowledge any opposing or deviating business terms of the buyer unless we have expressly approved their validity in writing. This shall also apply if we carry out the delivery without reservation in the knowledge of opposing or deviating business terms of the buyer. Our terms of sale and delivery shall also apply to all future business with the buyer without us respectively being obligated to refer to this circumstance separately. 2. Offer and conclusion of contract Our delivery and price offers are non-binding and without obligation. In case of single orders below a net order value of Euro 250,00 we shall additionally charge Euro 30,00 flat rate for expenses as well as Euro 10,00 for customer-specific direct deliveries. An order placed is deemed to be a binding offer of contract. In case of purchases or other orders a contract shall only be concluded if we have approved the contractual offer in writing. Our approval is decisive for the type and scope of the service as well as for the proper processing of the contract. 3. Execution of contract The buyer is obligated to inform us, without request, about all statutory, official and other regulations which are to be complied with when executing the contract owing to special circumstances. The same applies to other special circumstances of the individual case which may render it more difficult to execute the contract. We are entitled to make changes to the construction or with the production of our products insofar as these concern slight changes or customary deviations and these are deemed reasonable for the buyer by taking our interests into account. The benchmark for that which is reasonable are on the part of the buyer the implications on the value and the functional capability of the products, on our part technical requirements, in particular requirements from production technology. Customary quantity tolerances of up to +./. 10% are permitted. In case of sample and special productions outside of our respective applicable range of deliveries additional tool costs which are incurred in this respect shall be invoiced pro rata. We are entitled to provide partial services to an extent that is deemed reasonable for the buyer which we can respectively invoice separately. We reserve the property rights and copyrights to diagrams, drawings, calculations and other documents, they made not be made accessible to third parties. 4. Prices Insofar as no deviating regulation is agreed upon our list prices at the time when the contract was concluded shall apply. If we provide our services in the commercial business transactions as per contract later than six weeks after conclusion of the contract, the list prices at the time when the service was provided, in particular the day of delivery, are decisive. Our prices, insofar as not otherwise expressly agreed, are pure net, ex works and do not include secondary costs such as packaging, transport and insurance costs. The applicable rate of value added tax is not included in the prices; it is disclosed separately in the invoice at the applicable statutory rate on the date of the invoicing. We reserve the right to change our prices, which are based on material, wage costs and energy costs at the time when our offer is submitted, for the event that individual or all of these cost factors increase during the time between conclusion of the contract on the one hand and delivery or service on the other hand, in line with the implications of the change to the afore-mentioned cost factors on the price. If the customer is a non-merchant, price changes within this meaning are only permitted, if there is a period of more than four months between the conclusion of the contract and delivery/service. General terms and conditions 1 / 5 January 2016

2 5. Terms of payment Our invoices are due and payable within 14 calendar days after the invoice date with 2% cash discount or after 30 days net. The buyer must reimburse taxes, customs duties and duties, which are charged in our company, to us immediately. If the buyer is in default we are entitled to charge interest on default in the amount of 5% above the respective base lending rate of the European Central Bank. Both contractual parties reserve the right to provide concrete proof of higher or lower damages. If it becomes clear after conclusion of the contract that our payment claim is at risk through insufficient performance capability of the buyer, we are entitled to the rights from 321 BGB [Civil Code] (plea of uncertainty). We shall then also be entitled to deem all claims from the current business relationship with the buyer, which are not subject to the statute-of-limitations, due and payable. Incidentally the plea of uncertainty shall cover all further deliveries and services from the business relationship with the buyer. The buyer is only entitled to offsetting if his counter-claims have been determined legal and binding, are undisputed or have been recognised by us. This shall also apply to a possible right of retention insofar as his counter-claim is not based on the same contractual relationship. 6. Delivery, force majeure, self-delivery reservation, default Our details concerning delivery times are targeted deadlines. Even firmly agreed delivery times are no fixed dates ( 323 Abs. 2 Nr. 2 BGB, 376 HGB) unless they are expressly described as fixed dates. If we cannot provide the delivery within an agreed delivery deadline or at an agreed delivery date the buyer shall set us a final deadline of at least three weeks. The buyer can only then set us a shorter final deadline in case of circumstances which deem a final deadline of three weeks unreasonable for the buyer and which were recognisable for us when the contract was concluded. The circumstance alone that the parties agreed a binding delivery time is not sufficient for this. The buyer can only derive rights from the delay after expiry of the final deadline. With the express written description of a delivery deadline as binding the delivery time shall begin as soon as all details of the execution have been clarified and both parties agree upon all terms and conditions of the conclusion and the execution of the contract. Binding delivery times shall be observed through hand-over of the products for transport. Our delivery obligation shall be suspended as long as the buyer is in arrears with a liability towards us. Events of force majeure as well as other unforeseeable events, in particular interferences to procurement, employment, manufacturing and delivery in our company or at our components suppliers, which we can neither foresee nor prevent with regard to the duration of their implications shall release us from our performance obligation for the duration of the interference as well as reasonable start-up time and to the extent of their effect also during an already existing delay insofar as the interference was not caused by us. Should it not be possible to provide the delivery within a reasonable deadline owing to force majeure or other unforeseeable events, for which we are not responsible, both the buyer and we are entitled to cancel the contract in full or in part. The same shall apply to the event of the subsequent impossibility to satisfy the contract for which we are not responsible. No claims for damages exist for both parties owing to such a cancellation. If the party entitled to cancellation intends to exercise the right of cancellation it must report this immediately after gaining knowledge of the extent of the event. The same applies if official permits and other permits of third parties and documents, which are necessary for carrying out deliveries, are not received in time. In case of subsequent change to the order or late notifications of the details which are necessary for carrying out the delivery by the buyer, the delivery deadline shall also be extended by a reasonable extent. We shall be released from our delivery obligation if we ourselves are not supplied on time with the correct goods which were ordered to satisfy the delivery order without this being our fault. Further claims from delay in delivery shall be exclusively determined according to Sub clause 11 of these terms of sale and delivery. General terms and conditions 2 / 5 January 2016

3 7. Shipment, passing of risk, transport insurance The shipment is carried out at the costs of the buyer at the required destination (sales shipment). The risk of accidental deterioration and the accidental loss of the goods shall pass to the buyer at delivery at the latest. In case of sales shipment the risk of accidental deterioration and the accidental loss of the goods shall pass to the buyer as soon as the products were handed over to the persons determined for executing the delivery, by no later however than when they leave our plant, our business or warehouse rooms, and even if we have taken over the delivery all or part of, or if partial deliveries are made. If the shipment is delayed for reasons, for which the buyer is not responsible, then the risk shall pass to the buyer at the time at which we have reported to him that the goods are ready for shipment. We are entitled, however not obligated, to take out transport insurance to the customary extent at the costs of the buyer, insofar as not certain instructions of the buyer exist in this respect, which if applicable must be issued to us in writing in time before the commencement of the transport. In case the buyer has not issued contrary instructions, we shall determine the means of transport, the transport route and the transport insurance without being responsible for the fact that the quickest or the cheapest possibility is chosen. In case of damage to or loss of the products in transit the buyer must arrange for a recording of the facts at the carrier immediately. 8. Acceptance obligation, non-satisfaction The regulations concerning the default of debtors shall apply to the buyer s purchase obligation. If we are accordingly entitled to damages owing to non-satisfaction then we are entitled, subject to the proof of higher or lower damages to which both parties are entitled, to request a flat rate for damages of 20% of the respective net invoice value. If we are obligated to delivery at release order the deliveries, insofar as not especially agreed, must be called by no later than within one year from the order date. The aforementioned regulation shall apply accordingly in case the deliveries are not called within the stated deadline. 9. Reservation of title 1. All delivered goods shall remain our property (reserved goods) until the satisfaction of all claims, in particular also the respective balance claims, to which we are entitled within the framework of the business relationship (balance reservation) and the claims which are unilaterally established by the liquidator by way of the choice of satisfaction. This shall also apply to the claims which are incurred in future and conditional claims, e.g. from acceptor bills of exchange and also if payments are made on especially described claims. This balance reservation shall finally lapse with the compensation of all claims which are still outstanding at the time of the payment and are covered by this balance reservation. 2. The reserved goods shall be processed on our behalf as manufacturer within the meaning of 950 BGB without obligating us. The processed goods shall be deemed as reserved goods within the meaning of paragraph 9.1. In case the goods are processed, connected and mixed with other goods by the buyer we shall be entitled to the pro rata co-ownership to the new object in the ratio of the invoice value of the reserved goods to the invoice value of the other used goods. If our ownership lapses through connection or mixing then the buyer hereby now already assigns us the ownership rights to which he is entitled to the new stock of the object in the scope of the invoice value of the reserved goods and shall keep these in safekeeping free of charge on our behalf. Our co-ownership rights shall be deemed as reserved goods within the meaning of paragraph The buyer may only sell the reserved goods in customary business transactions at his normal business terms and conditions and as long as he is not in default, presuming that the claims from the resale pass to us acc. paragraphs 9.4. to 9.6. He is not entitled to other disposals over the reserved goods. 4. The claims from the resale of the reserved goods are hereby now already assigned to us, together with all collateral, which the buyer acquires for the claim. They serve as collateral to the same extent as the reserved goods. If the reserved goods are sold by the buyer together with other goods not sold by us then we are assigned the claim from the resale in the ratio of the invoice value of the reserved goods to the invoice value of the other sold goods. In case of the sale of goods, to which we have co-ownership shares acc. Paragraph 9.2., a part which corresponds with our co-ownership share is assigned to us. If the reserved goods are used by the buyer to satisfy a contract for work and services then the claim from the contract for work and services is assigned to us in advance to the same extent. General terms and conditions 3 / 5 January 2016

4 5. The buyer is entitled to collect claims from the resale. This collection mandate shall lapse in the event of our revocation, by no later however than with default of payment, non-redemption of a bill of exchange or application for the opening of insolvency proceedings. We shall only exercise our right of revocation if it becomes clear after conclusion of the contract that our payment claim from this or from other contracts with the buyer is in danger through his inadequate efficiency. At our request the buyer undertakes to inform his buyers of the assignment to us immediately and to give us the documents which are necessary for the collection. 6. An assignment of claims from the resale is not permitted unless it concerns an assignment by way of the real factoring which is reported to us and with which the factoring proceeds exceed the value of our secured claim. Our claim shall become due and payable immediately when the factoring proceeds are credited. 7. The buyer must inform us immediately of an attachment or other impairments by third parties. The buyer shall bear all costs in order to repeal the access or to transport the reserved goods back insofar as they are not reimbursed by third parties. 8. If the buyer is in default of payment or if he does not redeem a bill of exchange when due we are entitled to repossess the goods and for this purpose if applicable to access the buyer s plant. The same shall apply if it becomes clear after conclusion of the contract that our claim for payment from this or from other contracts with the buyer is at risk through his inadequate efficiency. The repossession of the goods is deemed a cancellation of the contract. Regulations of the insolvency regulations remain unaffected. 9. If the invoice value of the existing collateral exceeds the collateralised claims including secondary claims (interest, costs, etc.) by a total of more than 50% we undertake at the buyer s request insofar to release collateral items at our choice. 10. Liability for defects The buyer must inspect delivered goods immediately after receipt and before processing. Complaints owing to incomplete or incorrect delivery or complaints owing to obvious defects are to be reported to us in writing within eight days after receipt of the goods. Other defects are to be reported to us in writing immediately after they are discovered, by no later than within eight days. In case of a delayed report of defects warranty rights which are supported on these are excluded in the commercial business transactions. The warranty rights of the buyer also presume that he has properly satisfied the responsibilities for inspection and reporting of complaints which he owed by virtue of law. In case of damages in transit the buyer must have the railway or postal factual recording prepared immediately. All those parts are to be subsequently improved or delivered new free of charge at the choice of the supplier which are determined to be faulty as a result of a circumstance which existed before the risk was passed. Replaced parts shall become the property of the supplier. The buyer must give the necessary time and opportunity after coordinating with the supplier to undertake all subsequent improvements and replacement deliveries which appear necessary to the supplier; otherwise the supplier shall be indemnified from the liability for the ensuing consequences. The buyer is only entitled to correct the defect himself or have this corrected by third parties and request reimbursement of the necessary expenses from the supplier in urgent cases of the danger to the operating safety or in order to prevent disproportionately large damages, whereby the supplier is to be informed immediately. Of the costs incurred through the subsequent improvement or replacement delivery the supplier shall bear insofar as the complains turns out to be justified the costs for the replacement part including the shipment as well as the reasonable costs for dismantling and installation further, in case this can be reasonably requested due to the circumstances of the individual case, the costs of the possible necessary provision of his fitters and unskilled workers. Within the framework of the statutory regulations the buyer is entitled to cancel the contract if the supplier by taking into account the statutory exceptional cases allows a reasonable deadlines set to him for the subsequent improvement or replacement delivery owing to a defect of quality to expire unsuccessfully. In case there is only an insignificant defect the buyer shall merely be entitled to reduce the contractual price. The right to reduction of the contractual price shall otherwise remain excluded. No warranty is in particular assumed in the following cases: General terms and conditions 4 / 5 January 2016

5 Unsuitable or improper use, faulty assembly or putting into operation by the buyer or third parties, natural wear and tear, faulty or negligent handling, improper service, unsuitable equipment, faulty construction work, unsuitable foundation, chemical, electro-chemical or electrical influences insofar as they are not the responsibility of the supplier. If the buyer or a third party makes improper subsequent improvements no liability of the supplier shall exist for the ensuing consequences. The same shall apply to changes to the delivered object made without the prior consent of the supplier. 11. General limitation to liability 1. We shall only be liable for damages owing to the breach of contractual and non-contractual duties in particular owing to impossibility, default, fault when initiating contracts and tortuous act also for our executives and other vicarious agents in cases of wilful intent and gross negligence. In commercial business transactions our liability for gross negligence is limited to the damages which are foreseeable when the contract is concluded and are typical for the contract. 2. These above restrictions shall not apply with the culpable breach of essential contractual duties insofar as the achievement of the object of the contract is in danger, in cases of mandatory liability according to the Product Liability Act, with damages to the life, the body or the health nor if and insofar as we have maliciously failed to disclose faults to the object or guaranteed that they will not exist. The regulations concerning the burden of proof remain unaffected thereby. 3. Insofar as not otherwise agreed contractual claims, which the buyer incurs against us due to or in connection with the delivery of the goods, shall become statute-barred one year after delivery of the goods. This deadline shall also apply to those goods which are used for a building in line with their customary method of use and which caused its faulty condition. This shall have no effect on the limitation period for claims from wilful and grossly negligent breaches of duties, for claims under the German Product Liability Act (Produkthaftungsgesetz) as well as for claims due to a violation of life, body or health. In the cases of subsequent performance the statute-of-limitations shall not begin to apply again. 12. Place of performance, place of jurisdiction, choice of law, escape clause The place of performance for all deliveries and services is Neu-Ulm. If the buyer is a merchant, a legal entity under public law or special assets under public law, the place of jurisdiction shall be at our choice or the court of jurisdiction for the buyer according to the statutory regulations. This shall also apply if at the time when the contract was concluded the buyer did not have any general place of jurisdiction in the domestic country or after the contract was concluded relocated his place of residence or registered seat overseas or his customary place of stay is not known when the action is filed. The contractual relationship is subject to German law under the exclusion of the UN convention on the international sale of goods (CISG). Should one of the afore-mentioned provisions be or become invalid or unenforceable this shall have no effect on the other regulations. General terms and conditions 5 / 5 January 2016