Terms and condition of sale

Scope of application

I. Application

  1. Orders shall be binding only after confirmation by the seller. Any changes and/or amendments to orders shall be submitted in writing. All offers shall be considered to be customary approximate values unless they are marked as being explicitly binding.
  2. In the case of ongoing business relations, these terms and conditions shall also apply to any future business matters with the buyer for which they have not been expressly stated provided the buyer has received them at the time of a previous order confirmed by the seller
  3. The buyer’s terms and conditions shall not be applicable unless accepted in writing by the seller.
  4. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, the remaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions.

II. Prices

  1. In case of doubt, prices shall be ex works, excluding transport, duty, import surcharges and packaging, plus statutory VAT.
  2. In the case of material changes to decisive cost factors between offer or between order confirmation and delivery, the contracting parties shall negotiate an adequate adaptation of the prices and the portion of the costs for moulds.
  3. In the case of the price having been agreed on depending on the weight of the part, the final price shall result from the weight of the reference samples approved.
  4. In the case of new orders (= follow-up orders) the seller shall not be bound to previous prices.

III. Obligation to deliver and obligation to accept delivery of goods

  1. Delivery deadlines commence after receipt of all documents relevant to the order, the payment of the deposit and the punctual supply of free issued materials, in the case of such an agreement. On declaration that the goods are ready for despatch the delivery deadline is considered to have been adhered to, should transport be delayed or impossible through no fault of the seller.
  2. In the case that an agreed delivery deadline is not met through fault of the seller, then, in the case he has not been negligent or behaved with intent, excluding any other demands the buyer shall be entitled, after a reasonable lapse of time, to demand compensation for the delay or to refuse acceptance of the performance of the contract. Compensation shall be limited to a maximum of 5% of those parts of the contract, which have not been delivered in accordance with the contract. Acceptance refusal is excluded when there is a delay in acceptance of the goods by the buyer. The buyer retains the right to provide evidence of more extensive damage.
  3. Part-delivery in reasonable instalments as well as reasonable deviations from the quantities ordered up to plus/minus 10% are permitted.
  4. In the case of on-call orders where delivery dates, manufacturing lots and acceptance dates have not been agreed on, three months after order confirmation, the seller is entitled to demand a binding determination of this. Should the buyer not meet this requirement within three weeks of this demand, the seller is entitled to set a period of two weeks after which he can step down from the contract and/or demand compensation.
  5. Should the buyer fail to meet his acceptance obligation, the seller, without damaging other rights, is not bound to the regulations concerning the sale without resort to legal process but has the right to sell the goods supplied after informing the buyer in advance.
  6. Force majeure entitles the seller to postpone delivery for the period of the hindrance and to extend by an adequate running-in period, or to rescind the contract wholly or partially or partially due to partial non-performance. Force majeure includes strikes, lock-outs or other unforeseen, unavoidable circumstances e.g. operational breakdown, which despite the seller’s reasonable endeavours prevent the punctual delivery of the goods. The seller is under obligation to provide proof of this. This shall also be applicable when the previously mentioned hindrance occurs during an inadmissible delay or at a sub-supplier’s. The buyer can demand that the seller declares within a period of two weeks whether he will rescind the contract or supply the goods within a reasonable period of time. If this declaration is not made, the buyer can rescind that part of the contract which has not been met. The seller shall inform the buyer without delay when a force majeure occurs as stated in para.1. He is obliged to minimise impairment of the buyer as far as possible, if necessary, by making the moulds available for the period of the interruption.

IV. Packaging, despatch, passing of risk and default in taking delivery

  1. Unless agreed in advance, the seller selects packaging, type of transport and supply route at his discretion.
  2. The buyer is responsible for the goods immediately on the goods leaving the factory. In the case of delays attributable to the buyer, responsibility is transferred as soon as the buyer is informed that the goods are ready for despatch.
  3. Only when the buyer stipulates accordingly in writing, will the goods be insured against the risks stipulated by him at his own expense.

V. Retention of title

  1. All goods delivered shall remain the property of the seller until all obligations of the buyer towards the seller have been met in full, even when payments for specially stated demands have been made. In the case of open accounts the title retained to the delivery (retained goods), shall be considered as collateral for the balance due to the seller. In the case of liability of the seller arising out of a bill of exchange in connection with the payment of the purchase price, the retention of title to the goods shall not expire until the bill has been honoured by the buyer as drawee.
  2. Processing of the goods delivered by the buyer shall be carried out on behalf of the seller without acquisition of title in accordance with §950 BGB. The seller shall acquire part ownership of the goods manufactured in this manner according to the ratio of the net value of the invoiced amount of his goods to the net value of the invoiced amount of the goods processed which shall be considered as retained goods to guarantee the rights of the seller in accordance with Para 1.
  3. The regulations of the §§947, 948 BGB for processing ( combining/mixing) with other goods which are not the property of the seller, by the buyer, are applicable with the result that the share of title of the seller in the new product will be equivalent to the retained goods as defined in these conditions.
  4. The sale of the retained goods by the buyer is only permitted in a normal business transaction and on condition that he also agrees to a retention of title in accordance with Para’s. 1 to 3. The buyer does not have any right to transfer claims on the retained goods, especially pledges and transfer of ownership by way of security.
  5. Should the goods be sold the buyer relinquishes all rights, demands resulting from the sale and other justified claims towards his customers with all subsidiary rights, until he has fulfilled all obligations towards the seller. Should the seller so require, the buyer is obliged to immediately provide information and to hand over documents necessary for the seller to make a claim.
  6. Should the retained goods be sold by the buyer after processing in accordance with Para. 2 and/or 3 together with goods which is not the property of the seller, the transfer of sales price claims in accordance with Para. 5 shall only be to the amount of the invoice value for the retained goods of the seller.
  7. If the value of the existing security exceeds the secured claims by more than 10%, the seller is obliged, when requested to do so by the buyer, to release certain securities as selected by himself.
  8. The seller must be immediately informed of any seizures or obstruction of the retained goods by a third party. Any intervention costs incurred as a result of this are at the expense of the buyer, providing they are not payable by the third party.
  9. Should the seller make use of his retention of title by repossessing his goods in accordance with the aforementioned regulations he shall have the right to sell normally or have the goods auctioned. Making use of this retention of title and in particular the demand for transfer of the goods represents a repudiation of the contract. The repossession of the retained goods is carried out at the value of the proceeds, or to the value of the agreed purchase price as a maximum. The rights for further demands for compensation, especially profit gained is retained.

VI. Liability for defects

  1. Essential for the quality and design of the product are the outturn samples, which can be supplied to the buyer by the seller for inspection. Information concerning technical specifications serves as the performance description and should not be considered to be the quality guarantee.
  2. If the seller has advised the buyer outside the boundaries of the contract, he is only liable for the functionality and suitability of the supplied goods in the case of explicit previous assurance.
  3. Complaints must be submitted in writing immediately. In the case of hidden faults the complaint must be made immediately on discovery. In both cases, unless otherwise agreed, all warranty claims become statute-barred twelve months after passing of the risk. Should the law in accordance with §438 Para. 1 No. 2 BGB, §479 Para. 1 BGB and §634a Para. 1 No. 2 BGB require longer periods, they shall be applicable.
  4. If the complaint is justified – whereby the outturn-samples released in writing by the buyer meet the required quality and design – the seller is obliged to fulfil his obligations. If he does not meet these obligations or do so within a reasonable period of time or if improvements despite repeated attempts are not successful, the buyer is justified to demand a reduction in price or to step down from the contract. Right to reimbursement of expenses incurred or compensation for faults or damage caused by faults, only exists within the framework of the regulations in VII. Should the seller so request, replaced parts must be returned to seller at his own expense.
  5. Any unauthorised re-working or inappropriate treatment result in the loss of the rights to any warranty claims. Only in order to prevent disproportional large defects or if there is a delay in the correction of the fault by the seller has the buyer, after informing the seller in advance correspondingly, the right to repair and to demand the appropriate costs for this, from the seller.
  6. There is no right to warranty claims in the case of normal wear and tear.
  7. Rights to recourse in accordance with §§478, 479 BGB are only valid, providing the user has the right and only within the boundary of the law, not however for arrangements on accommodating terms, and presume the adherence to obligations of the party with the right to recourse, especially in observance of obligations concerning complaints.

VII. General limitation of liability

In all cases, in which the seller, deviating from the previous conditions or based on contractual or legal requirements, is legally obliged to pay damages or compensation, he shall liable only so far as himself, his managing personnel or employees have behaved with intent, gross negligence or damage to life, limb or health. Liability in accordance with the product liability law is not affected by this as well as the liability for completion of a quality guarantee. Also unaffected is the liability for culpable violation of fundamental contractual obligations; liability is however, but not in the case of S.1, restricted to the foreseeable contract typical damages. Amendment to the burden of proof to the disadvantage of the buyer is not linked to the above mentioned regulations.

VIII. Terms of payment

  1. All payments are to be effected in EUR (Euro) to the seller only.
  2. Unless otherwise agreed, the sales price or other services are payable with a discount of 2% within 14 days or without any deduction 30 days after date of invoice. A discount is only granted in the case all previous due invoices have been paid. If payment is made by bill of exchange no discount is granted.
  3. If the agreed date of payment is exceeded, interest at the rate of the statutory interest rate of 8 percent points above the current base interest rate of the ECB will be charged, providing the seller has not incurred any higher loss. The buyer has the right to prove the loss was lower.
  4. We reserve the right to refuse acceptance of cheques or bills of exchange. Cheques and rediscountable bills of exchange will only be accepted as conditional payment, all costs associated therewith will be charged to the buyer.
  5. The buyer has the right to set off or make use of his right to withhold payment only insofar as unrefuted or legally valid claims exist.
  6. Non-conformity with terms of payment or situations which lead us to doubt the credit worthiness of the buyer, mean that all outstanding payments must be made immediately, Also, in this case, the seller is justified in demanding advance payments for deliveries still outstanding as well as in rescinding the contract after an appropriate period of time.

IX. Moulds (tools)

  1. The price of moulds includes the costs for one sample, but not the costs for test and processing installations nor those of any changes as requested by the buyer. Costs for additional samples, which are the liability of the seller, are at his own expense.
  2. Unless agreed otherwise, the seller is and remains the owner of moulds manufactured for the buyer by himself or by a third party commissioned by himself. Moulds will only be used for the order of the buyer providing the buyer meets his payment and acceptance obligations. The seller is only obliged to provide a replacement of these moulds at no cost when this is necessary to supply the buyer with the production volume agreed. The storage obligation of the seller lapses two years after the last supply of parts from the mould and after having been informed by the buyer accordingly.
  3. Should it be agreed that the buyer is the owner of the moulds, the property is transferred after complete payment of the purchase price. The transfer of the moulds to the buyer is replaced by storage to the advantage of the buyer. Irrespective of the legal transfer rights of the buyer, and from the life-cycle of the moulds the seller has the right to his sole ownership until completion of the contract. The seller is obliged to mark the moulds as external property and is obliged to insure the moulds at the request of the buyer at his expense.
  4. In the case of moulds owned by the buyer in accordance with Para. 3 and/or moulds provided on loan the liability of the seller concerning storage and care is restricted to normal treatment as in the case of his own property. Costs for maintenance and insurance are at the expense of the buyer. The obligations of the seller lapse when, after completion of the contract, and after the buyer has been informed accordingly, the moulds are not collected within a reasonable period of time. As long as the buyer has not met all his obligations in respect of the contract, the seller retains the right to withhold the moulds.

X. Supply of material

  1. In the case of materials being supplied by the buyer, these shall be delivered in time and in perfect condition at his expense and at his risk with an adequate extra quantity allowance of at least 5%.
  2. Non-conformity with these conditions will extend the delivery date accordingly. With the exception of a case of force majeure, the buyer shall also pay the extra costs resulting from disruption of production.

XI. Industrial property rights and lack of title

  1. Should the seller have to supply in accordance with drawings, models, patterns or by using parts provided by the buyer, the buyer is responsible for the patent rights of third parties in the country of origin of the goods, not being violated. The seller shall make known to the buyer any rights known to himself. The buyer has to release the seller from any demands made by third parties and to provide a replacement for any damages incurred. Should the third party based on a patent owned by himself prohibit manufacture and delivery, the seller shall be within his rights – without checking the legal situation – to cease all work until the legal position has been clarified by the buyer and the third party. Should, as a result of the delay in the continuation of the contract , completion of the work no longer be reasonable, he has a right to rescind the contract.
  2. The drawings and patterns supplied to the seller, which did not lead to a contract, should be sent back on request, otherwise the seller has the right to destroy them three months after making an offer. This obligation applies to the buyer accordingly. He who has the right to destruction should inform the contractual partner of his intention to destroy in advance.
  3. The seller holds the rights of origin and, if applicable, the industrial patents, in particular all use and exploitation rights to those models, moulds and tools, designs and drawings produced by himself or by a third party commissioned by himself.
  4. Should other defects in title occur, No. VI is applicable accordingly.

XII. Place of performance and jurisdiction

  1. Place of performance shall be at the place of the supply plant.
  2. Place of jurisdiction shall be at seller’s option either the domicile of the seller’s company or the buyer’s domicile, also in the case of proceedings restricted to documentary evidence, proceedings based on a bill of exchange or a promissory note as well as cheque proceedings.
  3. Any transaction under these terms and conditions shall be governed in all respects by the laws of the Federal Republic of Germany. The United Nations agreement on contracts of national purchases of goods of April 11, 1980 (BGBl. 1989 S. 586) for the Federal Republic of Germany (BGBl. 1990 S. 1477) shall not apply.

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