Standard Terms of Sale & Delivery
I. Application
(1) Orders only become binding when
Supplier issues confirmation of order; any amendments and
additions must be specifically confirmed by Supplier in
writing. All quotations are subject to alteration unless
expressly termed firm offers.
(2) In ongoing business relations, these
terms shall also apply to future transactions even if no
express reference is made to them at the time.
(3) Supplier shall only be bound by
Customer’s divergent terms of purchase if it has
expressly recognised them. This also applies if Supplier makes
a delivery unconditionally, despite being aware of
Customer’s divergent terms.
(4) If any of the terms hereunder are or
become ineffective, this shall not affect the remaining terms.
II. Prices
(1) Prices are ex works, excluding
freight, customs and packaging. Value-added tax at the
statutory rate must be added.
(2) The minimum order value is EUR 150.
For orders for less than this amount, a minimum quantity
surcharge of EUR 5 is charged. For orders worth EUR 1,500 and
over, we deliver to German destinations without charging for
freight and packaging, and we deliver freight-paid as far as
the German border if the order is being sent abroad. Deliveries
are only made in the packaging units listed; short quantities
are made up to the next size of standard packaging.
(3) If pricing by weight has been agreed,
then the calculation of the final price shall be based on the
weight of the outturn sample that has been released.
III. Obligations to Effect & Accept
Delivery
(1) The delivery period commences after
we have received all the documents required for discharging the
order as well as the down-payment, and after any materials
being provided (if agreed) have been received on time, in no
event however before we have issued written confirmation of
order. Even if shipment is impossible for reasons beyond
Supplier’s control, the delivery deadline shall be deemed
met when we announce that the goods are ready for dispatch.
(2) If the agreed delivery deadline is
not met due to Supplier’s fault, then – after
setting Supplier a reasonable deadline for post-performance
that has expired to no avail – Customer shall be entitled
to demand default damages, which shall be limited in amount to
5% of the value of that part of the delivery failing to comply
with the contract. Moreover, Customer shall be entitled to
withdraw from the contract provided it has threatened to do so
in writing when setting the deadline for post-performance.
Further claims on Customer’s part are excluded, unless
default is due to intent or gross negligence.
(3) Reasonable part-deliveries and
acceptable differences of up to 10% from the quantities
actually ordered are permissible.
(4) For on-call orders placed without
specifying periods, batch sizes or acceptance dates, Supplier
may request within three months of the confirmation of order at
the latest that these specifications be bindingly fixed. If
Customer fails to comply with this request within three weeks,
Supplier shall be entitled to set a deadline of two weeks and
– if such deadline expires to no avail – to
withdraw from the contract or to refuse to make the delivery
and claim compensation.
(5) Incidents of force majeure shall
entitle Supplier to defer the delivery for the duration of the
impediment plus a reasonable start-up time, or to partly or
entirely withdraw from the contract with regard to the
outstanding performance. Strikes, lockouts and unforeseeable
circumstances, such as e.g. operational breakdowns, shall be
deemed equivalent to force majeure if they make it impossible
for Supplier to deliver on time, despite it making all
reasonable efforts to do so. The same applies if the
aforementioned obstacles occur during a delay already existing,
or affect a sub-supplier. Customer may request Supplier to
state within two weeks whether it intends to withdraw from the
contract or to make the delivery within a reasonable subsequent
period. If Supplier fails to state its intention, Customer may
withdraw from the contract with regard to the outstanding
performance. Supplier shall immediately notify Customer if an
incident of force majeure occurs, as specified in Paragraph 1.
It must keep any impairment to Customer to a minimum, if
necessary by handing over the moulds for the duration of the
impediment.
IV. Packaging, Shipment, Passing of Risk
(1) Unless otherwise agreed, Supplier
shall select the packaging, the mode of shipment and the
delivery route at its own discretion.
(2) The risk shall past to Customer when
the consignment leaves Supplier’s plant, also if it is
sent freight-paid. If there is any delay in dispatch for which
Customer is responsible, the risk shall pass as soon as it is
announced that the goods are ready for shipment.
(3) If Customer so requests in writing,
the goods shall be insured at Customer’s expense against
warehouse damage, breakage, transport damage and damage by
fire.
(4) Apart from recyclable pallets,
transport packaging and other packaging in accordance with the
Packaging Ordinance is not taken back,. Customer is obliged to
ensure that packaging is disposed of at its own expense.
V. Reservation of Title
(1) Deliveries shall remain
Supplier’s property until Supplier’s entire claims
vis-à-vis Customer have been satisfied, even if the
purchase price for some specifically named items has been paid.
In a current account, retaining title to the items delivered
(reserved goods) is deemed security for the balance owed to
Supplier. If recourse to Supplier is established due to payment
by bill of exchange, Supplier’s reservation of title
shall not lapse prior to discharge of the bill by Customer as
the drawee.
(2) If the goods are worked or processed
by Customer this shall be done on Supplier’s behalf,
excluding Customer’s acquisition of ownership pursuant to
German Civil Code, Sect. 950. Supplier shall acquire
co-ownership of the new items created on working or processing
its own goods, at a rate of the net invoiced value of its own
goods in proportion to the net invoiced value of the newly
created items, which items shall be reserved goods serving to
secure Supplier’s claims pursuant to Item (1) above.
(3) If Supplier’s goods are mixed
or combined by Customer with other goods not belonging to
Supplier, the provisions of German Civil Code, Sect. 947 and
Sect. 948 shall apply, meaning that Supplier’s
co-ownership share in the newly created items then counts as
reserved goods within the meaning of these terms.
(4) Customer is only permitted to resell
reserved goods in the ordinary course of business, on condition
that it likewise reaches an agreement with its own customers on
reservation of title pursuant to Items (1) – (3) above.
Customer is not entitled to dispose over the reserved goods in
any other manner, in particular by making pledges or
assignments by way of security.
(5) In the event of re-sale, Customer
here and now assigns to Supplier – until such time as
Supplier’s entire claims have been satisfied – all
and any receivables and other claims accruing to it
vis-à-vis its own customers on re-sale, along with all
and any ancillary rights. At Supplier’s request, Customer
shall be under obligation to furnish Supplier with all the
information and hand over all the documents required for
asserting Supplier’s rights vis-à-vis
Customer’s own customers.
(6) If the reserved goods, after being
worked or processed pursuant to Item (2) and/or (3) above, are
re-sold together with other goods not belonging to Supplier,
then the assignment of the claim to the purchase price pursuant
to Item (5) shall only apply up to the invoiced amount of
Supplier’s reserved goods.
(7) If the value of the security for
Supplier’s benefit exceeds its total receivables by more
than 10%, then at Customer’s request Supplier shall be
under obligation to release items of security of
Supplier’s own choosing that are equivalent to the excess
amount.
(8) Supplier must be notified immediately
if reserved goods are garnished or seized by third parties. Any
intervention costs thus incurred that are not borne by third
parties shall in all events be at Customer’s expense.
VI. Warranty, Liability for Defects
(1) The outturn samples submitted to
Customer for inspection at Supplier’s request shall be
decisive as regards the quality and design of the products. Any
warranty that delivered items feature given characteristics and
any warranty of mould specifications must be documented in
writing in the confirmation of order. A reference to technical
norms serves as a specification of features. The warranty does
not cover the risk of consequential damage caused by defects,
unless Supplier, its managerial staff or vicarious agents act
with intent or gross negligence.
(2) Supplier, if it has provided advice
to Customer in addition to its contractual performance, shall
be held liable for the functionality and suitability of the
item delivered only if it has expressly issued a warranty in
writing. The state-of-the-art on the date of the acceptance of
the order shall be decisive.
(3) Defects must be reported in writing
immediately. Unless otherwise agreed, guarantee claims shall
become statute-barred six months after receipt of the goods.
(4) In the event of a justified complaint
about a defect, Supplier shall be under obligation to make
subsequent repairs or to make a replacement delivery free of
charge, at its own option. If it fails to fulfil these
obligations within a reasonable period, Customer shall be
entitled to demand a reduction in the price or to rescind the
contract and demand reimbursement of the incidental costs (such
as e.g. costs for installation and disassembly, transport
costs, etc.). Further claims beyond this, for whatsoever legal
cause, are excluded. Replaced parts are to be sent back to
Supplier freight collect on request.
(5) Arbitrary repairs and wrong handling
shall result in forfeiture of all claims based on defects.
VII. General Limitations of Liability
(1) In all cases in which Supplier, in
derogation from the above provisions, is bound by law or by
contract to pay damages, it shall only be liable to the extent
that Supplier or its managerial staff or vicarious agents are
at fault due to gross negligence. If liability is not due to
intent, it shall be limited to the foreseeable damage typically
occurring.
VIII. Terms of Payment
(1) Unless otherwise agreed, the purchase
price for deliveries or other services shall fall due on
receipt of the invoice. A cash discount of 2% is granted for
payments made within two weeks of date of invoice, provided all
undisputed invoices falling due on some earlier date have been
settled. No cash discount is granted for payments made by bill
of exchange.
(2) If no payment has been made within 30
days of receipt of the invoice, default interest in accordance
with German Civil Code, Sect. 286 shall be charged. The right
is reserved to assert claims for further default damages.
(3) The right is reserved to turn down
cheques or bills of exchange. Cheques and re-discountable bills
shall be accepted by way of performance only; all and any costs
involved shall be at Customer’s expense.
(4) Customer may only effect setoff or
assert right of retention if its claims are undisputed or have
been declared res judicata.
(5) Non-compliance with the terms of
payment, or circumstances that cast serious doubt on
Customer’s credit rating, shall result in all
Supplier’s demands falling due immediately. In addition,
Supplier shall be entitled to demand advance payments for any
outstanding deliveries, and – after setting a reasonable
period of grace – to withdraw from the contract or demand
compensation for non-performance; moreover, it shall be
entitled to prohibit Customer from re-selling the goods and to
fetch back any unpaid goods at Customer’s expense.
IX. Moulds (Tools)
(1) Unless otherwise agreed, Supplier
shall retain title to the moulds made for Customer by Supplier
or manufactured to Supplier’s instructions. These moulds
are used exclusively for Customer’s orders, as long as
the latter performs its payment obligations and honours its
undertaking to accept deliveries. Supplier’s duty to
retain specimens shall lapse two years after the final delivery
of parts made from the mould, whereby Customer shall be
notified beforehand. During the retention period, Supplier is
under obligation to store and handle the mould carefully;
however, it shall not be held liable for any damage that occurs
despite proper handling.
(2) The price for moulds also includes
the costs for sampling once only, not however the costs for
testing and processing devices, or the costs for any
modifications requested by Customer.
(3) If it is agreed that Customer is to
acquire title to the moulds, title shall pass to Customer after
payment of the purchase price. Handing over the moulds to
Customer shall be substituted by Supplier’s duty to
retain them. Until a minimum number of items (to be agreed) has
been accepted, or until the end of a fixed period, Supplier
shall be exclusively entitled to keep a mould in its
possession. Supplier must mark the mould as third-party
property and insure it at Customer’s expense if the
latter so requests.
(4) In the case of Customer’s own
moulds pursuant to Item (3) and/or moulds lent out by Customer,
Supplier’s liability with regard to storage and handling
shall be limited to the due care it applies in its own affairs.
Any costs for maintenance and insurance shall be borne by
Customer. Supplier’s obligations shall lapse if, after
completion of the order and after being requested to do so,
Customer fails to collect the moulds within a reasonable
period. As long as Customer has not fully performed its
contractual obligations, Supplier shall remain entitled to
right of retention in the moulds.
X. Provision of Materials
(1) If materials are provided by
Customer, they must be supplied at Customer’s own cost
and risk, including a reasonable excess quantity of at least
5%, and delivered in good time and in perfect condition so that
processing without interruption is guaranteed.
(2) If this requirement is not met, the
delivery time shall be extended reasonably. Other than in cases
of force majeure, Customer must compensate Supplier for any
losses caused by a hold-up in production.
XI. Protective Rights
(1) In the event of Supplier having to
deliver in accordance with drawings, models or samples, or
using parts provided by Customer, the latter vouches that this
does not infringe the protective rights of any third parties.
Customer shall release and discharge Supplier from all and any
third-party claims and compensate it for any loss or damage
sustained. If Supplier is prohibited from doing manufacture or
making delivery by a third party claiming to be the proprietor
of a protective right, then – excluding all
Customer’s claims to damages, and without having to
verify the legal position – it shall be entitled to
discontinue performing its tasks, provided it immediately
informs Customer that the third party’s protective rights
are being asserted.
(2) Any drawings and samples provided to
Supplier without an order subsequently being placed shall be
returned on request; otherwise, Supplier shall be entitled to
destroy them three months after issuing the quotation.
(3) Supplier is entitled to copyrights
and – where applicable – industrial property rights
in the models, moulds, devices, drafts and drawings that it has
made itself or has had made by third parties.
XII. Place of Performance, Place of
Jurisdiction
(1) Place of performance shall be the
location of Supplier’s plant.
(2) Place of jurisdiction shall be the
location of Supplier’s registered place of business or
Customer’s domicile, at Supplier’s option, also for
any proceedings restricted to documentary evidence and for any
action for enforcing cheques or bills of exchange.
(3) German law shall apply exclusively,
excluding CISG.