Terms and Conditions
Scope of Application
The following provisions apply to persons acting in pursuance of their commercial or self-employed occupation (entrepreneurs) when entering into the relevant contract, to legal bodies under public law and to special public assets.
- The following general terms and conditions apply exclusively to all deliveries and services of the supplier. Deviating or conflicting terms and conditions of the purchaser shall under no circumstances become part of the contract, even if not expressly objected to. They shall not apply even if the customer has based his order or other declarations on them.
- The supplier's offers are subject to change without notice, unless they are described in writing as binding. Conclusions of contracts, agreements, amendments and supplements shall only become binding upon written confirmation of the supplier's order.
- In the case of permanent business relationships, these conditions shall also apply to future business transactions in which no express reference is made to them, insofar as they have been received by the customer in the case of an order previously confirmed by the supplier.
Any other purchasing conditions of the purchaser shall only bind the supplier if they are expressly acknowledged by the supplier.
- The purchaser accepts these terms and conditions at the latest with the acceptance of the delivery, unless their acceptance has already been declared beforehand.
- Should individual provisions be or become invalid, this shall not affect the remaining provisions.
- All prices apply – unless otherwise confirmed in writing – ex works excluding freight, customs duties and incidental import charges and other public charges etc. and excluding value-added tax at the statutory rate.
- If the supplier has taken over the transport of the goods, it is up to him whether he sends the goods carriage paid or unpaid and remunerates the customer the actual freight incurred in each case on proof. Prices quoted free of freight charges are valid under the condition of open, unhindered traffic on the suitable transport routes. Incorrect and extra freight charges, including those incurred as a result of the customer's shipping instructions or due to the special nature of the goods (bulky goods, etc.), shall in any case be borne by the customer.
- If there is a significant change in major cost factors after submission of the tender or between confirmation of order and supply, the supplier is entitled to make a reasonable price increase.
- If the price has been agreed to be related to the weight of parts, the final price will be calculated on the basis of the weight of the approved type samples.
- If new purchase orders (=follow-up orders) are placed, the supplier is not bound by previous prices.
III. Delivery dates and deadlines, supply- and purchase obligation
- Delivery and other deadlines and dates are only approximate, unless the supplier has expressly confirmed or agreed to them in writing. Prerequisites for this are the receipt of all material required for performance of the order, the receipt of an advance payment and due to provisions of materials, if agreed. The supply period is deemed met on notification of readiness for dispatch, even if the goods cannot be shipped without fault of the supplier or cannot be shipped by the most economical means of transport.
- If an agreed supply period is not met through the fault of the supplier but the latter has not acted with gross negligence or intent, the purchaser has the right – with exclusion of all other claims by said purchaser – to set a reasonable period of extension and then require payment of a penalty for default or rescind the contract, provided that there was express written mention of rejection of performance in the notice setting the period of extension. The penalty for default is restricted to no more than 5% of the part of performance that has not been completed in compliance with the contract. The purchaser may not derive any rights from the delay or non-execution of partial deliveries with regard to the other partial deliveries.
- If call orders are placed without agreement of any term, production batch size or acceptance date, the supplier can require that the latter be specified in a binding form no later than three months after acknowledgement of the order. If the purchaser fails to meet this requirement within three weeks, the supplier has the right to set a two-week extension period and then, if this period expires without result, rescind the contract or refuse to supply and claim compensation.
- If the purchaser fails to meet his purchase obligation, the supplier is not bound by the regulations on self-help sale, without prejudice to other rights, and can sell the subject of supply on the open market after prior notification of the purchaser.
- If the supplier is requested to take back supplied goods as an act of good will require perfect condition, original packing and carriage paid delivery after agreement of the date of return. The supplier shall be entitled to charge reasonable costs incurred by him as a result of the taking back of the goods.
- Events of force majeure, including strikes, lockouts, mobilization, war, blockades, import and export bans, shortage of raw materials and fuel, fire, traffic blocks, disruptions in operation or transport and other circumstances which, through no fault of the supplier, make it difficult or impossible to deliver on time despite reasonable efforts, entitle the supplier to postpone delivery for the duration of the hindrance and a reasonable start-up time or to withdraw from the contract in whole or in part due to the unfulfilled part of the contract. This shall also apply if the aforementioned impediments occur during the delay or at a sub-supplier's premises.
- The purchaser may request the supplier to declare within two weeks whether it wishes to withdraw from the contract or to deliver within a reasonable period of extension. If the supplier fails to make any such statement, the customer can withdraw from the unfulfilled part of the contract.
- The supplier shall notify the purchaser without delay if a case of force majeure occurs, as described in section III. /6. above. He has to keep impairments of the customer as low as possible.
IV. Packaging, shipment, passage of risk
Unless otherwise agreed, the supplier shall choose the packaging, mode of dispatch and route of dispatch to the best of its judgement. The risk shall pass to the customer even in the case of carriage paid delivery upon leaving the supplier's works. In the event of delays in dispatch for which the customer is responsible, the risk shall pass to the customer upon notification of readiness for dispatch. At the written request of the purchaser, the goods shall be insured at his expense against storage damage, breakage, transportation and fire damage.
V. Retention of Title
- All deliveries are subject to retention of title. All goods remain the property of the supplier until any and all accounts receivable against the purchaser (including future accounts) are been paid– deriving from this business relationship irrespective the legal foundation especially the appropriate balance receivables. If the supplier should meet any obligation towards the purchaser or third parties for financing or refinancing the purchase price or if such obligations occur due to acceptance of bills, guarantees or other direct or indirect assumption of liability by the supplier, when the supplier is released from any liability towards purchaser and third parties.
- Machining and processing of the conditional goods take place for the supplier as the manufacturer within the meaning of Article 950 of the German Civil Code (BGB) without obligation to the supplier, processed goods are deemed to be conditional goods. With processing, combining and mixing of the conditional goods with other goods by the purchaser, the supplier obtains ownership to the object created in the ratio of the invoice amount of the conditional goods to the value or invoice amount of the other used goods. If the supplier's title expires due to machining or processing, combining or mixing, the purchaser shall transfer the title of the new stock or item to the extent of the invoice value of the conditional goods. The new product or item is considered to be conditional goods.
- The purchaser has to store the conditional goods free of charge for the supplier and in commercially-suitable condition. Any time the supplier may request the purchaser to store or mark the conditional goods in particular or return them without the need of the Supplier to withdraw first. The purchaser is obliged to inform the supplier any time of the conditional goods which are still in his possession, the place of storage and possibly condition of machining or processing. The supplier is entitled to inspect the conditional goods any time.
- The purchaser may sell the conditional goods only in the course of customary business as long as he is not in arrears with payment or other contractual obligations to the supplier provided that the claims from the resale pass to the supplier according to following regulation item 5.
- The purchaser assigns the claims arising from the sale of the conditional goods to the supplier. If the conditional goods are resold together with other goods, the assignment shall apply only up to the amount of the supplier's invoice value of the sold conditional goods. In case of resale of goods in which the supplier is entitled to co-ownership, the assignment of the claim applies proportionately in the ratio of co-ownership. The assigned claims shall guarantee the conditional goods to the same extent.
- The purchaser is entitled to collect claims from the resale until effective revocation permitted at any time. The supplier shall only exercise his rights of revocation in the cases specified above of section IV 4. The purchaser is not authorized to assign claims to a third party. At the supplier's request the purchaser shall be obliged to inform his customers immediately of the assignment and to give all information and documents necessary for collection to the supplier.
- The supplier shall be informed immediately by the purchaser of a levy of execution and any other impairments of the conditional goods and the assigned claims.
- In the event of a breach of contract by the purchaser - in particular default of payment - the supplier is entitled to assert the reservation of title and to demand the immediate surrender of the reserved goods. The purchaser shall immediately provide the supplier or an authorised representative with direct possession of the reserved goods or, if necessary, demand the assignment of the purchaser's claims for restitution to a third party. If the supplier exercises his reservation of ownership in compliance with the above provisions by repossessing conditional goods, he has the right to sell the goods on the open market or have them auctioned. The goods will be repossessed at the amount of the proceeds obtained but at no more than the agreed supply prices. The right to make claims for damages, in particular loss of profits, is reserved.
- Should the value of the securities granted to the supplier exceed the receivables to be guaranteed sustainable by more than 20 % the supplier will have to release securities depending on his choice, on request of the purchaser.
- The purchaser is obliged to insure the supplied goods adequately against all usual risks, especially fire, burglary and water hazards and to handle them with care.
Warranty and liability for defects
- The criteria for the quality and construction of the products are the type samples which the supplier has submitted to the purchaser for inspection at the latter’s request. The condition of the goods shall be determined expressly according to the technical documents agreed between the parties. If the supplier has to deliver according to drawings, specifications, samples etc. of the purchaser, the purchaser assumes the risk of suitability for the intended use. A warranty of qualities and durability must be recorded in writing in order to be effective. Reference to technical norms serves to describe performance. The warranty does not include the risk of damages consequential to defects inasmuch as the supplier, his managerial executives or vicarious agents have not acted with intent or gross negligence.
- If the supplier has provided the purchaser with advisory services going beyond contractual performance, he shall only be liable for the operability and suitability of the supplied item if an express written undertaking has been provided. The criterion is the state of the art at the time of acceptance of the order.
- Notice of any defects is to be given in writing immediately and no later than within two weeks of receipt of supplies. If there are concealed defects, this period is extended to one week after discovery of the same. In both cases, warranty claims are subject to a time limitation of six months after receipt of goods, provided that nothing has been agreed to the contrary.
- If a notice of defects is justified - with the type sample approved in writing by the purchaser being the criterion for quality and construction – the supplier must rework the goods or provide a free replacement, at his discretion. If he fails to meet these obligations within a reasonable period, the purchaser has the right to require reduction of the purchase price or to rescind the contract. He can also require reimbursement of subsidiary costs (such as costs of fitting and removal, transportation costs, etc.). All further claims irrespective of their legal basis are excluded. Replaced parts are to be returned to the supplier carriage forward at the latter’s request.
- The supplier shall not be liable for material defects caused by unsuitable or improper use, faulty assembly or commissioning by the purchaser or faulty or negligent handling, nor for the consequences of improper changes made without the supplier's consent, unauthorised reworking or repair work by the purchaser or third parties and shall result in the loss of all warranty claims. The same applies to defects which only slightly reduce the value or suitability of the goods. After giving the supplier prior notification, the purchaser is authorised to rework items and to require compensation for reasonable costs only if this is being done to avert unreasonable losses or if the supplier is in default with the remedying of defects.
VII. General restrictions of liability
- Insofar as nothing to the contrary is stated below, any other and more extensive claims of the purchaser against the supplier shall be excluded. This applies in particular to claims for damages due to breach of obligations arising from the debt obligation and tort as well as claims for reimbursement of expenses. The supplier is therefore not liable for damage that has not occurred to the delivered goods themselves. In particular, the supplier shall not be liable for loss of profit or other financial losses incurred by the purchaser.
- In all cases in which the supplier has an obligation to render compensation in deviation from the aforementioned terms on the basis of contractual or statutory rulings, he shall only be liable to the extent that he, his managerial executives or vicarious agents can be proved to have acted with intent or gross negligence. In accordance with § 14 ProdHaftG, liability for bodily injury and damage to health as well as damage to privately used items remains unaffected.
VIII. Terms of payment
- All payments shall be made exclusively to the supplier in Euros.
- Unless expressly agreed otherwise, the invoice will be issued upon dispatch. If the shipment of goods ready for dispatch cannot take place for reasons which fall within the risk area of the customer, the invoice shall nevertheless be made out and due for payment.
- Unless otherwise agreed, invoices are due and payable within 30 days of the invoice date without any deductions. Discounts may only be deducted if they have been expressly agreed and the purchaser has settled all outstanding invoice amounts at the supplier's premises or has settled all outstanding invoice amounts at the same time. No discount is granted for possible payments with bills of exchange.
- With the expiry of the aforementioned payment period (section VII. 3.), the purchaser shall be in default. In the event of default, the supplier shall be entitled to charge interest at a rate of 5% above the respective base interest rate p. a. - in the event of proof of a higher rate of interest payable by the supplier to the supplier's bank, this interest rate.
- If the purchaser is in arrears with his payment obligation, the supplier has the right to demand advance payment for future deliveries (payment of the agreed price before delivery of goods) until the purchaser has fulfilled his payment obligation.
- Bills of exchange will only be accepted if agreed in writing and only on account of payment, subject to return at any time and with the exclusion of any liability for proper protest. All costs arising from the acceptance of bills of exchange, discounting and assertion of bills of exchange shall be borne by the customer.
- The purchaser shall not be entitled to assert rights of retention of any kind and/or to set off claims, insofar as these rights of retention and/or set-offs of claims are not recognised, undisputed or legally binding by the supplier.
- All claims shall become due immediately, even if a term of payment has been granted or bills of exchange have been accepted, if the terms of payment are not complied with or if the supplier becomes aware of circumstances which, in his opinion, are likely to reduce the creditworthiness of the purchaser or if the purchaser suspends his payments or if an application is made for the opening of composition or insolvency proceedings against his assets. In this case, the supplier is entitled to demand advance payment for outstanding deliveries. Without prejudice to other rights, the supplier may withdraw from the contract for the unfulfilled part of the contract after setting a reasonable deadline if the advance payment is not made on time. In addition, the supplier may, without withdrawing from the contract, prohibit the processing and sale of delivered goods - also to the extent that the goods have been processed -, revoke the collection authorisation, demand the return of the goods at the expense of the purchaser and place them in his possession without the purchaser being entitled to a right of retention or similar. Goods taken back shall be utilized by the supplier through direct sale and the proceeds less costs incurred shall be credited against the claims against the customer.
- The supplier is also entitled to set off all claims against all claims of the purchaser against the supplier.
IX. Provisions of material
- If materials are to be provided by the purchaser, they are to be delivered in on time and in perfect condition at his own expense and risk with an appropriate quantity surcharge of at least 5%.
- If these conditions are not met, the delivery period shall be extended accordingly. Except in cases of force majeure, the customer shall bear the additional costs incurred, including for interruptions to production.
Property rights of third parties and the supplier
- If the supplier has to deliver according to drawings, models, samples or using parts provided by the customer, the customer is responsible for the fact that industrial property rights of third parties in the country of destination of the goods are not infringed by this. The purchaser shall indemnify the supplier against any claims of third parties and shall pay compensation for the damage incurred. If the supplier is prohibited from manufacturing or supplying by a third party with reference to a property right belonging to him, the supplier shall be entitled, without examination of the legal situation, to suspend the work until the legal situation has been clarified by the purchaser and the third party, without the purchaser's claims for damages arising therefrom. Should the continuation of the order no longer be reasonable for the supplier due to the delay, the supplier is entitled to withdraw from the contract.
- Drawings and samples provided to the supplier which have not led to the order will be returned on request; otherwise he is entitled to destroy them three months after submission of the offer.
- The supplier reserves all property rights and copyrights to all his drawings, technical descriptions, drafts, data, samples, tools and all other information of a physical and incorporeal nature; they may only be made accessible to third parties with the prior consent of the supplier. Violations oblige to compensation. All rights reserved in the event of the grant of a patent and for utility model registrations.
- Insofar as the supplier manufactures or procures models, moulds, tools and other mould equipment on behalf of the purchaser or its customers, the tools shall remain the property of the supplier until the agreed price has been paid in full.
Place of Performance and Jurisdiction
- The place of performance is the location of the supplying plant.
- The place of jurisdiction for all claims and liabilities of the parties, including claims arising from bills of exchange and cheques, is Augsburg, unless mandatory statutory provisions to the contrary apply.
- German law shall apply exclusively. The application of the conflict of laws and the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG) (BGBI 1989 II p. 586) to the Federal Republic of Germany (BGBI 1990 II p. 1477) is excluded. The same applies to deliveries abroad.
- Should any of the above provisions be or become invalid, this shall not affect the validity of the remainder of the contract and the remaining provisions shall nevertheless remain in force. In place of the ineffective regulation the legal regulation applies.