GENERAL CONDITIONS OF SALE AND DELIVERY
The Seller’s deliveries shall only be made subject to the following terms and conditions of sale. Agreements or terms and conditions of business of the Purchaser deviating from these shall require the express written consent of the
express written consent of the Supplier, insofar as they conflict with these Terms and Conditions. The Supplier’s terms and conditions of sale shall become an integral part of the contract upon confirmation of the order by the Supplier,
at the latest upon acceptance of the delivery.
- Orders shall only become binding upon confirmation of the order by the supplier. Changes and additions must be made in writing. All offers are subject to change unless they are expressly designated as firm offers.
- In the case of continuous business relations, these terms and conditions shall also apply to future transactions in which no express reference is made to them, provided that they have been received by the Purchaser in connection with an order previously confirmed by the Supplier.
- Any other terms and conditions of purchase of the Purchaser shall only be binding on the Supplier if they have been expressly accepted by the Supplier.
- Should individual provisions be or become invalid, this shall not affect the remaining provisions.
- Prices are ex works excluding freight and packaging plus VAT at the statutory rate.
- If the decisive cost factors change significantly after submission of the offer or after order confirmation until delivery, the supplier and the purchaser shall agree on an adjustment of the prices and the cost shares for parts and molds. If, from the time of conclusion of the contract, there are changes in charges, fees or taxes which affect the order, we shall be entitled to make corresponding price increases. The same shall apply in the event of price increases by upstream suppliers which come into effect after conclusion of the contract.
- In the event of a change in the currency or exchange rate parities in the period between the conclusion of the contract and the delivery or partial delivery, we have the right to withdraw from the same. Likewise, we are entitled to charge currency losses to our customers if payments are only credited to our account after the agreed payment deadline.
- If the price is agreed to be dependent on the weight of the part, the final price shall be based on the weight of the released part.
- The Supplier shall not be bound by previous prices in the case of new orders (= subsequent orders).
III. Delivery and acceptance obligation
- Delivery periods are only binding if they are expressly assured in the order confirmation. The delivery periods shall commence after receipt of all documents required for the execution of the order, the down payment and the timely material orders, insofar as these have been agreed.
The delivery period shall be deemed to have been met upon notification of readiness for dispatch if dispatch is impossible through no fault of the Supplier.
- If an agreed delivery period is exceeded by more than two weeks due to the Supplier’s own fault, then, unless the Supplier has acted with gross negligence or intent, and to the exclusion of any further claims, the Purchaser shall be entitled, after expiry of a reasonable grace period, to claim compensation for the delay or to rescind the contract, provided that the Supplier has notified the Purchaser in writing of the refusal to perform when setting the grace period. The compensation for delay shall be limited to a maximum of 5% of that part of the delivery which has not been affected in accordance with the contract.
- Reasonable partial deliveries and reasonable deviations from the order quantities of up to plus/minus 10% are permissible.
- In the case of call-off orders without agreement on duration, production lot sizes and acceptance dates, the Supplier may demand a binding stipulation of these at the latest 1 month after order confirmation. If the Purchaser does not comply with this request within the next 2 weeks, the Supplier shall be entitled to set a two-week grace period and, after its expiry, to withdraw from the contract or to reject the delivery and claim damages.
- If the Purchaser is in default of acceptance or violates other obligations to cooperate, the Supplier shall be entitled to demand compensation from the Purchaser for the damage incurred due to the default. Upon the occurrence of default in acceptance, the risk of accidental deterioration and accidental loss shall pass to the Purchaser. Our further rights shall remain unaffected.
- If the Purchaser fails to fulfill its acceptance obligations, the Supplier shall, without prejudice to any other rights, not be bound by the provisions on self-help sales, but may sell the delivery item on the open market after prior notification of the Purchaser.
- The taking back of delivery items by the supplier as a gesture of goodwill presupposes that they are in perfect condition, in their original packaging and that they are delivered carriage paid after an agreed date. The supplier is entitled to charge reasonable costs incurred by him due to the return.
- Events of force majeure shall entitle the Supplier to postpone the delivery for the duration of the impediment and a reasonable start-up period or to withdraw in whole or in part from the part of the contract not yet fulfilled. Strike, lockout or unforeseeable circumstances, e.g. operational disruptions, which make it impossible for the Supplier to deliver on time despite reasonable efforts, shall be deemed equivalent to force majeure.
This shall also apply if the aforementioned hindrances occur during a delay or at a sub-supplier.
The Purchaser may request the Supplier to declare within two weeks whether it intends to withdraw from the contract or to deliver within a reasonable period of grace. If he does not declare his intention, the Purchaser may withdraw from the unfulfilled part of the contract.
The Supplier shall notify the Purchaser without delay if a case of force majeure as referred to in paragraph 1 occurs. He shall keep any impairment of the Purchaser as low as possible, if necessary by surrendering the moulds for the duration of the impediment.
IV. Packing, shipping, transfer of risk
- Unless otherwise agreed, the Supplier shall choose the packaging, mode and route of shipment to the best of its ability.
- Even in the case of carriage paid delivery, the risk shall pass to the Purchaser when the goods leave the supplying plant.
In the event of delays in dispatch for which the Purchaser is responsible, the risk shall already pass upon notification of readiness for dispatch.
- At the written request of the customer, the goods will be insured at his expense against breakage, storage, transport and fire damage.
- The customer bears the risk for all returned deliveries during the return transport, as well as for the packaging during the outward and return transport.
V. Retention of title
The Supplies shall remain the property of the Supplier until all claims of the Supplier against the Purchaser have been satisfied, even if the purchase price for specifically designated claims has been paid.
In the case of a current account, the reserved title to the Supplies (Retained Goods) shall serve as security for the Supplier’s balance of the account. If, in connection with the payment of the purchase price, a liability of the Supplier under a bill of exchange is established, the reservation of title shall not expire before the bill of exchange has been honored by the Purchaser, as drawee. Any processing or transformation by the Purchaser shall be carried out on behalf of the Supplier to the exclusion of the acquisition of title pursuant to Section 950 of the German Civil Code (BGB); the Supplier shall become co-owner of the item thus created in proportion of the net invoice value of its goods to the net invoice value of the processed or transformed goods, which shall serve as reserved goods to secure the claims of the Supplier pursuant to paragraph 1. In the event of processing (combination/mixing) with other goods not belonging to the Supplier by the Purchaser, the provisions of Sections 947, 948 of the German Civil Code shall apply with the consequence that the Supplier’s co-ownership share in the new item shall now be deemed to be reserved goods within the meaning of this condition.
The Purchaser may only resell the Retained Goods in the ordinary course of business subject to the condition that it also agrees with its customers on a retention of title pursuant to paragraphs 1 to 3. The Purchaser shall not be entitled to dispose of the Retained Goods in any other way, in particular by pledging them or assigning them as security.
For the resale, the Purchaser hereby assigns to the Supplier, with all ancillary rights, all claims and other claims against its customers arising from the resale until all claims of the Supplier have been satisfied.
At the Supplier’s request, the Purchaser shall be obliged to provide the Supplier with the information and documents required by the Purchaser to release securities of the Supplier’s choice in order to assert the Supplier’s rights against the Purchaser’s customers.
If the reserved goods are resold by the Purchaser after processing in accordance with paragraph 2 and/or 3 together with other goods not belonging to the Supplier, the assignment of the purchase price claim in accordance with paragraph 5 shall only apply to the amount of the invoice value of the reserved goods of the Supplier, if the value of the securities existing for the Supplier exceeds the total claims of the Supplier by more than 10%, the Supplier shall, upon request, immediately notify the Supplier of any seizure or attachment of the reserved goods by third parties. Intervention costs arising therefrom shall in any case be borne by the Purchaser, unless they are borne by third parties.
If the Supplier makes use of its retention of title by taking back goods subject to retention of title in accordance with the above provisions, it shall be entitled to sell the goods on the open market or have them auctioned. The goods subject to retention of title shall be taken back at the proceeds obtained, but at most at the agreed delivery prices. We reserve the right to assert further claims for damages, in particular for lost
loss of profit, shall remain reserved.
VI. Assurance and liability for defects
- Decisive for the quality and design of the products are the limit samples approved in writing by the purchaser. The assurance for certain properties of the delivery item and for the performance of molds requires the written form in the order confirmation. The reference to technical standards serves to describe the performance. The assurance does not include the risk of consequential damage caused by a defect, unless the supplier’s executives or vicarious agents act with intent or gross negligence.
- If the Supplier has advised the Purchaser outside the scope of his contractual performance, he shall only be liable for the functionality and the suitability of the delivery item if he has given express written assurance.
The state of the art at the time of acceptance of the order shall be decisive.
- Notification of defects must be made in writing without delay, no later than 8 days after receipt of the delivery. In the case of hidden defects, this period shall be extended to one week after discovery; in both cases, unless otherwise agreed, warranty claims shall become statute-barred six months after receipt of the goods, unless longer periods are prescribed by law.
- In the event of a justified notice of defect – whereby the limit samples released in writing by the Purchaser shall be decisive for quality and design – the Supplier shall be obligated, at its discretion, to rectify the defect or to make a replacement delivery free of charge. If the Supplier fails to meet these obligations within a reasonable period of time, the Purchaser shall be entitled to demand a reduction in the purchase price or to declare rescission of the contract and to demand reimbursement of the ancillary costs (such as installation and removal costs, transport costs, etc.).
Further claims are excluded, irrespective of the legal grounds. Replaced parts are to be returned to the supplier freight collect upon request.
- Unauthorized reworking and improper handling shall result in the loss of all claims for defects. Only in order to prevent disproportionately great damage or in the event of delay in rectification of the defect by the Supplier shall the Purchaser be entitled, after prior notification of the Supplier, to rectify the defect and to demand reimbursement of the reasonable costs incurred.
VII. General limitations of liability
In all cases in which the Supplier, in deviation from the above conditions, is obligated to pay damages on the basis of contractual or statutory bases for claims, it shall only be liable insofar as it, its executive employees or vicarious agents can be charged with intent or gross negligence.
Pursuant to § 14 of the German Product Liability Act (ProdHaftG), liability for bodily injury and damage to health as well as damage to privately used property shall remain unaffected.
VIII. Terms of payment
- All payments shall be made in Euro exclusively to the Supplier.
- Unless otherwise agreed, the purchase price for deliveries of plastic parts is payable with 2% discount within 10 days and without deduction within 30 days from the date of invoice.
The following terms of payment apply to molds: 1/3 of the total mold price when the order is placed, 1/3 when samples are taken and 1/3 when the mold is released. Molds and other services are to be paid immediately upon receipt of the invoice.
The granting of a discount is subject to the settlement of all previously due, undisputed invoices.
No discount will be granted for any payments by bill of exchange.
- If the agreed payment date is exceeded, interest shall be charged at a rate of 8 percentage points above the respective base interest rate of the ECB, unless the customer proves lower debit interest.
We expressly reserve the right to claim further damage caused by default.
- We reserve the right to refuse checks or bills of exchange. Checks and discountable bills of exchange are only accepted on account of performance, all associated costs shall be borne by the customer.
- The Purchaser may only assert a right of set-off or a right of retention if its claims are undisputed or have become res judicata.
- Non-compliance with payment terms or circumstances which give rise to serious doubts about the creditworthiness of the Purchaser shall result in the immediate maturity of all claims of the Supplier. In addition, the Supplier shall be entitled to demand advance payments for outstanding deliveries and, after a reasonable period of grace, to withdraw from the contract or to claim damages for non-performance, furthermore to prohibit the Purchaser from reselling the goods and to recover any goods not yet paid for at the Purchaser’s expense.
IX. Molds (tools)
- The price for molds includes the costs for the one-time sampling, but not the costs for testing and processing devices and for changes initiated by the purchaser. Costs for further sampling for which the supplier is responsible shall be borne by the supplier.
- Mold release must take place immediately after inspection of the parts and the mold. The purchaser cannot refuse the release of the mold due to insignificant defects. If the purchaser cannot participate in the sampling, the samples will be sent to him. If the customer does not make any comments within 7 days after the samples have been sent, the mold shall be deemed to have been released.
- Unless otherwise agreed, ownership of the mold shall pass to the Purchaser upon payment of the last installment. In the case of molds which remain in storage with the supplier for production, the transfer is replaced by the connection of the storage contract. Molds shall only be used for orders placed by the Purchaser as long as the Purchaser meets its payment and acceptance obligations. The Supplier shall only be obliged to replace such moulds free of charge if they are required for the fulfillment of an output quantity assured to the Purchaser. The Supplier’s obligation to store the moulds shall expire two years after the last delivery of parts from the mould and prior notification of the Purchaser.
- Irrespective of the Purchaser’s statutory claim to surrender and of the service life of the molds, the Supplier shall be entitled to exclusive possession of them until a minimum number to be agreed upon has been accepted and/or until the expiry of a certain period of time. The Supplier shall mark the molds as third-party property and insure them at the Purchaser’s request and expense.
- In the case of the Purchaser’s own molds pursuant to Paragraph 3 and/or molds provided by the Purchaser on loan, the Supplier’s liability with regard to storage and maintenance shall be limited to the care taken in its own affairs. Costs for maintenance and insurance shall be borne by the Purchaser.
The Supplier’s obligations shall lapse if, after completion of the order and a corresponding request, the Purchaser fails to collect the moulds within a reasonable period.
As long as the customer has not fulfilled his contractual obligations in full, the supplier shall in any case have a right of retention to the molds.
X. Materials provided
- If materials are delivered by the Purchaser, they shall be delivered on time and in perfect condition at the Purchaser’s expense and risk with a reasonable quantity surcharge of at least 5%.
- In the event of non-fulfillment of these prerequisites, the delivery time shall be extended accordingly. Except in cases of force majeure, the Purchaser shall also bear the additional costs incurred for interruptions in production.
XI. Property Rights
- If the Supplier has to deliver according to drawings, models, samples or using parts provided by the Purchaser, the Purchaser shall be responsible for ensuring that the property rights of third parties are not infringed thereby.
The Supplier shall inform the Purchaser of any rights known to it. The Purchaser shall indemnify the Supplier against any claims of third parties and pay compensation for any damage incurred.
If the Supplier is prohibited from manufacturing or supplying a product by invoking an appropriate property right, the Supplier shall be entitled, without examining the legal situation, to continue the work.
- Drawings and samples provided to the supplier which have not led to an order will be returned on request, otherwise the supplier is entitled to destroy them 3 months after submission of the offer.
- The Supplier shall be entitled to copyrights and, if applicable, industrial property rights to the models, molds and devices, designs and drawings created by him or by third parties on his behalf.
XII. Place of performance and jurisdiction
- The place of performance shall be the place of the supplying plant.
- Place of jurisdiction for all disputes arising from the contractual relationship is Chemnitz
- German law shall apply exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (BGBI 1989 II p. 5869 for the Federal Republic of Germany(BGBI 1990 II p.1477) is excluded.
- Amendments and/or supplements to the contract must be made in writing.
- If individual provisions of these Terms and Conditions of Sale and Delivery are or become invalid, this shall not affect the validity of the remaining provisions. The contracting parties shall be obliged to agree on a new provision that comes as close as possible to the purpose pursued by the invalid provision.