General Terms and Conditions
- Orders only become binding upon the order confirmation of the supplier. Modifications and amendments must be in writing. All offers are subject to change unless they are binding offers.
- In case of regular business relationship these terms – even if they are not expressly referred to – will also be valid for future dealings provided that they have been communicated to the customer on the occasion of a former order confirmed by the supplier.
- Terms of the customer shall not be valid unless they have been explicitly accepted in writing by the supplier.
- In case individual provisions may or will be invalid the remaining provisions are not affected.
- Our prices are ex works excluding freight, customs duty, accessory import duties plus VAT.
- In case the decisive cost factors change considerably from the moment the offer has been submitted or confirmed until the delivery, supplier and customer will agree on an adjustment of prices and share of expenses.
- In case of new orders (= follow-up orders) the supplier shall not be bound to former prices.
III. Obligation to deliver/accept the goods
- Terms of delivery shall commence upon the receipt of all documents necessary for the execution of the order, upon the advance payment and upon the timely material provision as far as the latter has been agreed upon. The term of delivery shall be deemed to have been observed if notification of readiness for shipment has been given even if the shipment is delayed or impossible without supplier’s fault.
- In case agreed delivery terms shall not be met due to supplier’s fault, unless it is a result of intent or gross negligence, the customer shall be entitled to claim a compensation for delay or to withdraw from the contract after the expiry of a reasonable period of grace without being entitled to assert claims of any kind on that account. The compensation for delay shall be limited to at least 5 % of that part of the shipment which has not been fulfilled according to the contract. A rescission shall be excluded in case the customer is in default of acceptance. The customer shall be entitled to prove a higher damage.
- Reasonable partial deliveries and a reasonable deviation from the volume ordered of up to plus/minus 10% shall be permissible.
- In the case of call-off orders without agreed contract period, lot size and acceptance dates, the supplier shall be entitled to claim a binding stipulation of these terms at the latest three months after confirmation of the order. If the customer fails to comply with this request within three weeks, the supplier shall be entitled to set a period of grace of two weeks and to withdraw from the contract and/or to claim damages after this period of grace has elapsed.
- Should the customer not fulfill his obligation to take delivery, the supplier is, without prejudice to any other rights, not bound to the regulations regarding the public auction of chattels. In this case the supplier may sell the delivery item on the open market according to prior notice to the customer.
- Events beyond the supplier’s control shall entitle the supplier to postpone delivery for the duration of the hindrance and a reasonable time for adaptation, or, because of the part of the contract not yet fulfilled, to withdraw partially or completely from the contract. Strike, lockout or unforeseeable and unavoidable circumstances i.e. breakdown, which render prompt delivery impossible despite reasonable efforts, shall be treated as force majeure for which the supplier shall be obliged to provide proof.
This shall also apply if the above-mentioned hindrances occur during delay or at a subcontractor. The customer may request that the supplier declares within two weeks whether he will withdraw or deliver within a reasonable period of grace. Should he not declare this, the supplier may withdraw from the part of the contract not yet fulfilled. The supplier will immediately inform the customer of an event of force majeure as described above. He is obliged to restrict the customer’s damages as far as possible.
IV. Packaging, shipment, transfer of risk, default of acceptance
- Unless otherwise agreed, packaging, mode of shipment and dispatch route shall be at supplier’s discretion.
- All risks shall devolve upon the customer at the latest when the shipment leaves the supplier works, even where carriage paid delivery was agreed upon. If the customer is responsible for delays in dispatch the risk is already transferred to him upon the dispatch advice.
- On customer’s request, the delivery items are insured at his expense against risks to be specified by him.
V. Retention of Title
- The supplier shall retain title in the deliveries until all receivables have been paid by the customer even if the purchase price for particular marked claims has been paid. In case of account current the retention of title in the deliveries (reserved goods) shall be considered as collateral for the supplier’s claim on balance. If in connection with the payment of the purchase price a liability of the supplier is established, the retention of title shall not expire before the honouring of the bill of exchange by the buyer as the drawee.
- According to § 950 BGB (German Civil Code) the acquisition of property shall be excluded in the case of handling or processing by the customer on behalf of the supplier; the supplier is entitled to the co-ownership of the new objects in the ratio of the net invoice value of his goods to the net invoice value of the goods to be treated or processed. The new product shall be deemed as reserved goods to secure the supplier’s claims according to paragraph 1.
- In the case of processing (assembly/mixing) with other products not belonging to the supplier, the provisions of §§ 947, 948 BGB (German Civil Code) shall apply. As a result, the supplier’s co-ownership share in the new product shall be regarded as reserved goods as defined by these provisions.
- The customer may only resell the reserved goods in the course of normal business and only provided that he has agreed a retention of title with his customers according to paragraphs 1 to 3. The customer shall not be entitled to dispose of the reserved goods in any other way, especially pledging or security assignment.
- In the case of resale the customer hereby transfers to the supplier all claims and additional rights with respect to third parties arising out of the resale until complete fulfillment of all supplier’s claims. On supplier’s request the customer shall be obliged to provide information to the supplier immediately and to provide all the documents necessary for the enforceability of the supplier’s rights vis-à-vis third parties.
- Should the reserved goods after processing according to paragraphs 2 and/or 3 be resold by the customer together with other goods not belonging to the supplier, the assignment of the purchase price claim according to paragraph 5 is only valid to the sum of the invoice value of the supplier’s reserved goods.
- Should the value of the supplier’s existing securities exceed the total secured claims by more than 10%, the supplier shall be obliged, on customer’s request, to release securities of his choice.
- The customer must inform the supplier immediately of any distraint or attachment of the reserved goods by third parties. All costs arising through intervention of this kind shall be borne by the customer unless they are borne by third parties.
- If, according to the afore mentioned provisions, the supplier makes use of his retention of title by taking back the reserved goods, he shall be entitled to sell the goods on the open market or to sell the goods by public sale. The assertion of the retention of title and especially the assertion of the claim for surrender shall constitute a rescission of the contract. The withdrawal of the reserved goods shall be effected to the value of the proceeds generated, however not exceeding the agreed delivery prices. Further claims for damages, especially for loss of profit, shall remain unaffected.
- The customer stores the reserved goods for the supplier free of charge. He is obliged to insure them at his own expense against usual risks as fire, theft and water. The customer hereby assigns his claims for compensation to the supplier arising from damages as described above against insurance companies or other parties liable for damages. The supplier hereby accepts the assignment.
Vl. Liability for defects
- The initial samples submitted for examination by the supplier at customer’s request are decisive for the quality and the design of the goods. References to technical standards serve as specification and may not be interpreted as guarantee of quality.
- In case the supplier has advised the customer beyond the contractual commitments, he shall only be liable for the functioning and the suitability of the delivery item after express prior warranty.
- Complaints have to be reported without delay and in writing. In case of hidden defects, the complaint has to reported immediately on discovery. Unless otherwise agreed, all warranty claims in both cases become time-barred 12 months after transfer of perils. If and to the extent to which the German Civil Code prescribes compulsory longer periods according to § 438, para. 1 no. 2, § 47, para. 1 and § 634 a para. 1 no. 2 German Civil Code, those shall apply. In the case of foils delivered by us, deviations in the thickness of + 10%, in the width of + 2% and in the specific weight of + 8% are customary and do not represent reasons for complaints on the part of the customer. The same applies to colour deviations. In any case, the customer shall bear all risks of processing.
- The initial samples released in writing by the supplier specify the quality and design to be expected. In the event of a justified defect notification, the supplier shall be obliged to make amendments. Should he not fulfill this obligation within an adequate period or if an amendment fails despite repeated efforts, the customer shall be entitled to reduce the purchase price or to withdraw from the contract. Further claims, especially claims for compensation for consequential damage caused by defect shall only be admissible within the scope of the regulations according to paragraph VII. If requested, replaced goods are to be resent to the supplier free of charge.
- Arbitrary rework and inappropriate treatment result in the loss of all warranty claims. In order to avoid damages out of scale or in the case of delayed removal of defects by the supplier, the customer shall be entitled, upon prior notification, to rework and to claim for the appropriate cost.
- Wear and abrasion during use according to the agreement do not entail warranty claims.
- Claims for recourse according to §§ 478, 479 German Civil Code shall only be valid if their assertion by the customer was justified and only pursuant to the statutory provisions. They shall however not be valid in the case of ex gratia arrangements not agreed upon with the supplier. Moreover, claims for recourse imply the fulfilment of obligations of the regress beneficiary, in particular his compliance with defect reporting requirements.
Vll. General liability limitations
In all cases in which the supplier is – due to contractual or legal regulations – obliged to compensate for damages or to reimburse expenses notwithstanding the a. m. conditions, he shall only be liable in the case of culpable willful intent, gross negligence, human injury or damage to human health on the part of the supplier, his executives or assistants. The mandatory liability according to the Product Liability Act as well as the liability for a performance bond will remain unaffected. The liability for culpable breach of essential contractual obligations will also remain unaffected; insofar, the liability shall be restricted to the foreseeable losses typical of this type of contract, however except those cases set forth in sentence one of this paragraph. The afore-mentioned regulations do not imply a reversal of the burden of proof to the detriment of the customer.
Vlll. Terms of payment
- All payments shall exclusively be settled in € (Euro) to the supplier.
- Unless otherwise agreed the purchase price for deliveries or other services is payable less 2% discount for payment within 14 days from date of invoice and for payment within 30 days from date of invoice net. The allowance of a discount is subject to the settlement of all former undisputed invoices due for payment. In case of payment by bills of exchange no discount
will be granted.
- In case the agreed date of payment will be exceeded, default interest of 8% above the ECB base rate will be charged unless the supplier establishes a higher claim. The customer will be entitled to prove a minor damage.
- The supplier reserves the right to refuse checks and bills of exchange. Checks and rediscountable bills of exchange will only be accepted on account of performance. All costs involved are charged to the customer.
- The customer may only offset claims or exercise his right of retention in case his claims are undisputed or legally recognized.
- The persistent non-compliance of payment terms or circumstances that justify reasonable doubts as to the customer’s soundness (credit worthiness) entail the immediate maturity of the supplier’s claims. In this case the supplier is moreover entitled to request advance payments for outstanding deliveries as well as to resign from the contract after the unsuccessful expiration of a reasonable deadline.
- Agents are not entitled to act as a debt collector.
IX. Moulds (tools)
- The price for moulds includes the cost for a single sampling. However, it does not include the cost for testing or processing devices or for modifications initiated by the customer. Cost for further samplings for which the supplier is responsible are at his expense.
- Unless otherwise agreed the supplier is and remains the owner of the moulds produced for the customer by the supplier himself or by a third party assigned by the supplier.
- If, according to the agreement, the customer shall become the owner of the forms, the property shall be transferred to the customer after the complete payment of the purchase price. The delivery of the moulds shall be replaced by the custody in favour of the customer. Irrespective of the legal claim for return and the service life of the forms, the supplier shall be the sole owner until the termination of the contract.
- In the case of moulds owned by the customer according to paragraph 3 and/or in the case of moulds provided by the supplier on loan the liability of the supplier regarding storage and care shall be restricted to the diligence applied to personal matters. Maintenance and insurance cost shall be borne by the customer. The supplier’s obligations are met in case the customer on completion of the order and after a respective demand note fails to collect the moulds within an adequate period of time. As long as the customer has not fulfilled his contractual obligations to the full extent, the supplier may in any case exercise his right of retention regarding the moulds.
X. Material provision
- If material is delivered by the customer it has to be delivered at his expense and risk in due time and flawlessly with an appropriate quantity premium of 5%.
- In case these conditions will not be fulfilled, the delivery period will be extended reasonably. Except in cases of force majeure, the customer has to bear additional costs even in the case of process interruptions.
XI. Industrial property rights and defects of title
- To the extent that the supplier has to execute the delivery according to drawings, models or samples or using parts provided by the customer, the customer shall ensure that any industrial property rights of third parties in the country of destination of the goods will not be violated. The supplier will advise the customer of industrial property rights known to him. The customer shall indemnify the supplier from third party claims and make up for damages occurred. In case a third party bars the supplier from the production or the delivery under reference to its property right, the supplier – without checking the legal situation – shall be entitled to suspend the deliverables up to the clarification of the legal situation by the customer or the third party. If the continuation of the contract should become untenable to the supplier due to the delay, the supplier is entitled to rescind the contract.
- Any drawings and samples given to the supplier but not leading to an order will be returned on request; if no such request is made, said supplier is entitled to destroy them three months after submission of the tender. The same obligation shall apply to the customer accordingly. The party entitled to disposal by destruction must inform the other party of the intention prior to doing so and in good time.
- The supplier shall hold copyrights and if applicable industrial property rights, especially all utilization and exploitation rights in the models, forms and devices, designs and drawings created by him of a third party on his behalf.
- In the case of other defects of title no. VI shall apply accordingly.
XII. Place of performance and place of venue
- Place of performance and place of venue shall be Aldenhoven.
- German law shall exclusively apply. The application of the United Nations Convention on Contracts for the National Sale of Goods (BGBl. 1898 S. 536) for the Federal Republic of Germany shall be excluded.
XIII. Final Clause
This is not a certified translation of our General Terms and Conditions. In case of doubt or problems of interpretation the German version of these regulations is binding.