1. All supplies and services are based on these terms and conditions and separate agreements, if any. Divergent purchase conditions of Orderer will not become part of the supply contract even if Supplier accepts the order.
Failing special agreement, a supply contract is made through written order confirmation by Supplier.
2. The offer-related documents like illustrations/figures, drawings, weight and dimension data are not binding unless expressly identified binding.
3. Supplier will retain title and copyright to samples, cost estimates, drawings and similar information of tangible and intangible types – also in electronic format – , which shall not be disclosed to third parties. Supplier undertakes to disclose to third parties confidential information and documents of Orderer only with Orderer’s consent.
II. Extent of delivery
Decisive for the extent of delivery is Supplier’s written order confirmation, or the offer if Supplier’s offer is valid for a limited period of time and has been accepted in due time provided the order has not been confirmed in due time. Subsidiary agreements and revisions require Supplier’s written confirmation.
III. Price and payment
1. Failing special agreement, prices are understood ex works, inclusive of loading in plant but exclusive of packaging, and plus value-added tax in force at the time.
2. Failing special agreement, payment shall be made in cash, without any deduction, free point of payment of Supplier, as follows:
1/3 down payment after receipt of order confirmation;
1/3 after Orderer has been notified that the major items are ready for shipment;
Balance within one month after passing of risk.
3. The right to withhold or offset payments against counterclaims is granted to Orderer only if his counterclaims are undisputed or subject to a non-appealable court decision.
IV. Delivery time
1. The delivery time is established and agreed by the parties to the contract. Its compliance by Supplier requires that all commercial and technical questions have been clarified between the parties, and Orderer has fulfilled all obligations incumbent on Orderer such as obtaining the necessary official certificates or approvals or effecting a down payment. If not, delivery time shall be extended reasonably. This will not apply if Supplier is responsible for the delay.
2. Compliance with the delivery time depends on correct and timely receipt by Supplier of subcontracted goods. Supplier shall notify potential delays as soon as possible.
3. The delivery time is deemed to have been complied if prior to its expiration, the delivery item has been despatched from Supplier’s plant, or it has been notified that the delivery item is ready for despatch. If item acceptance is required, the acceptance date – except rejection of item acceptance is justified – is decisive, alternatively the notification that item is ready for acceptance.
4. If on Orderer’s request despatch is effected later, Orderer will be charged, as from one month after notification that item is ready for despatch, with expenses caused by item storage, in case of storage at Supplier’s plant not less than 0.5% of the invoiced amount for each month. Supplier, however, is entitled after fixing and ineffectual expiration of a reasonable time limit, to use the item for other purposes and deliver the item to Orderer within a reasonably extended period.
5. The delivery time will be extended reasonably due to actions to be taken during labour disputes, in particular strike and lockout as well as occurrence of unforeseeable events beyond Supplier’s control and intention if such events have an impact on the completion of item delivery as can be proved. This will also apply if such circumstances occur at subcontractors. The aforementioned circumstances shall not be Supplier’s responsibility even if such circumstances occur during an already existing delay. In important cases, Supplier will notify Orderer as soon as possible of commencement and end of such events.
6. If Orderer due to a delay occurred by Supplier’s fault sustains loss, Orderer shall have the right, with the exclusion of further claims, to claim compensation for loss caused by the delay. Such compensation shall be 0.5 % for each full week of delay, up to a maximum of 5% of the value of that portion of total consignment which as a result of such delay cannot be used in due time or in compliance with the contract.
7. Compliance with delivery time requires the fulfillment of contract obligations by Orderer.
V. Passing of risk and receipt
1. Risk will pass to Orderer with the despatch of the delivery items, even if partial shipments are effected or Supplier has assumed additional costs/services, e. g. shipment expenses or transport to and installation on site. On Orderer’s request and at his expenses the consignment will be insured by Supplier against theft, breakage, transport, fire and water as well as other insurable risks.
2. If shipment is in delay due to circumstances for which Orderer is responsible, risk will pass to Orderer as from the date at which item is ready for despatch; Supplier, however, shall effect, at cost of Orderer, those insurances requested by Orderer.
3. Delivered items even if they have irrelevant defects shall be received by Orderer notwithstanding the rights in Para. VII.
4. Partial deliveries are permitted.
VI. Retention of title
1. Supplier will retain title to the delivery item until payments under the supply contract are received in full.
2. Supplier shall have the right to insure the delivery item, at Orderer’s cost, against theft, breakage, fire, water and other damage unless Orderer has effected such insurance, which Orderer can prove.
3. Orderer is not allowed to sell, pledge or transfer as a security the delivery item. In case of levy of execution, seizure, or other dispositions by third parties Orderer shall immediately inform Supplier of such action.
4. If Orderer is not in conformity with the contract, in particular in case of delay in payment, Supplier has the right to reclaim the delivery item, after reminder, and Orderer is obliged to return the item.
5. Due to retention of title Supplier may only reclaim the delivery item if Supplier has withdrawn from the contract.
6. The request to open insolvency proceedings shall entitle Supplier to withdraw from the contract and to demand immediate return of the delivery item. Orderer shall immediately notify Supplier in writing as soon as Orderer has knowledge of the filing of a request to open insolvency proceedings.
VII. Claims due to defects
Physical and legal defects of the delivery are warranted by Supplier, with the exclusion of further claims, subject to Para. VIII., as follows:
1. All parts shall at Supplier’s discretion be repaired or replaced with new non-defective parts, at no cost to Supplier, if the parts are found defective due to any reason that dated prior to the passing of risk. Any defect discovered shall be reported immediately to Supplier in writing. Title to replaced parts will pass to Supplier. For substantial external products Supplier’s liability is limited to assignment of liability claims which Supplier has against the vendor of the external product.
2. For the execution of all repairs and replacements which Supplier, at his reasonable discretion, considers to be necessary, Orderer, upon agreement with Supplier, shall grant sufficient time and opportunity, if not, Supplier is released from liability for any consequences resulting therefrom. Only in urgent cases when operational safety is endangered and excessively serious damage shall be avoided in which case Supplier shall be notified immediately, Orderer shall have the right to have the defect eliminated by third parties and demand compensation by Supplier for the necessary expenses.
3. Of the direct costs incurred by such repair and/or replacement Supplier will – provided the discrepancy is found justified – bear the costs of the replacement part including its shipment. In all other respects, Orderer shall bear the costs.
4. Orderer is under the statutory law entitled to withdraw from the contract if Supplier – in due consideration of exceptional cases provided by law – let a reasonable period of time granted to Supplier for repair or replacement due to physical damage expire without executing the required work. If only an irrelevant defect exists, Orderer shall only have the right to reduce the contract price. Generally, the right to reduce the contract price is excluded..
5. No warranty is assumed for damage incurred for the following reasons:
Unsuitable or improper use, faulty assembly and/or initial operation by Orderer or third parties, normal wear and tear, incorrect or negligent handling, unsuitable tooling/POL products, substitute materials, insufficient structure/construction work, unsuitable substructure/subsoil, chemical, electrochemical or electrical impacts unless resulting from Supplier’s fault.
6. Changes or repairs improperly carried out by Orderer or third parties without prior approval of Supplier will cancel liability for any consequences resulting therefrom.
7. If the delivery item is used for the infringement of industrial property rights or copyrights within the domestic country, Supplier, at his costs, will in principle procure for Orderer the right to continue to use or modify the item, in a way which can reasonably be expected of Orderer so that industrial property rights will no longer be infringed.
If this is not possible under economically reasonable conditions or within a reasonable period of time, Orderer has the right to withdraw from the contract. Under the above conditions Supplier also has the right to withdraw from the contract.
In addition, Supplier will release Orderer from undisputable or non-appealable court decision claims raised by the owners of industrial property rights.
8. Supplier’s obligations set forth in Para. VII. 7 are binding, subject to Para. VIII. 2, in case of infringement of property rights or copyrights.
Such obligations exist only if
- Orderer immediately notifies Supplier of the fact that property rights or copyrights have been infringed,
- Orderer supports Supplier to a reasonable extent in averting the asserted claims and/or makes it possible for Supplier to carry out any modification pursuant to Para. VII. 7,
- all averting actions including out-of-court settlements are reserved to Supplier,
- legal defect is not based on an instruction of Orderer, and
- infringement of rights has not been caused by Orderer’s arbitrary modification or
nonconforming use of the delivery item.
1. If the delivery item by fault of Supplier due to non-performance or faulty performance of recommendations or advices given prior to or after contract conclusion or by failure to comply with other accessory obligations under the contract – in particular instructions to operate and maintain the delivery item – cannot be used by Orderer in conformance with the contract, the settlements of Para. VII. and VIII. 2 shall apply accordingly, with the exclusion of further claims of Orderer.
2. For any damage not occurred to the delivery item itself Supplier is – for whatever legal
grounds – only liable in the following cases
- willful intent,
- gross negligence of owner/organizations or executive personnel,
- culpable injury to life, body, health,
- defects which he has fraudulently concealed, or the nonexistence of which he has
-defects of the delivery item as far as personal injury and damage to privately used items is covered by the product liability law.
In case of culpable breach of essentials of the contract Supplier shall also be liable for gross negligence of the non-executive personnel and simple negligence, the latter limited to a reasonably foreseeable damage intrinsic to the contract. Further claims are excluded.
IX. Statute of limitation
All claims of Orderer – for whatever legal grounds – become statute-barred after 12 months. The limitation periods provided by law apply to damage claims pursuant to Para. VIII. 2. The same periods also apply to defects on a structure or delivery items which have been used according to their intended purpose for a structure, and have caused its insufficiency.
X. Applicable law, jurisdiction
1. All legal relations between Supplier and Orderer shall exclusively be governed by the law of the Federal Republic of Germany which is applicable to the legal interrelations of national parties.
2. Place of jurisdiction is Graefelfing. Supplier shall also have the right to take legal action at Orderer’s principal place of business.