Terms and conditions
General Terms of Delivery and Payment for the Supply of Parts and Systems, Rev. 01.01.02
1. Conclusion of Contract
Our quotations are subject to alteration without notice. No order, call purchase or any other agreements, their amendments or any supplement shall not become binding unless confirmed by us in writing. Any divergent purchase conditions of the Customer are rejected herewith nor shall commencement of work constitute acceptance of such terms.
2. Prices, Terms of Payment
2.1. Our prices are ex-works plus packing and value added tax. Our invoices are payable without deduction within 30 days from the date of delivery or partial delivery.
2.2 The Customer is not entitled to retain or offset payments, unless counterclaims are undisputed or are legally established.
2.3 Default in payment or risk to our claims resulting from a deterioration in the creditworthiness of the Customer entitles us to demand immediate settlement of all our claims or insist on securities– irrespective of the terms of any bills of exchange. In such cases we are also entitled only to carry out outstanding deliveries only if they are paid for in advance or security is provided.
3. Delivery Period / Force Majeure
3.1. Delivery periods do not commence until all details relating to them have been clarified and the requirements to be met by the Customer have been complied with. Observing the delivery deadline is subject to our punctually obtaining the accurate self-supplies. Deliveries before the delivery period expires and partial deliveries are permissible.
3.2 If supply contracts are not called on schedule we are entitled, after an extension of the deadline has proved to be fruitless, to divide the goods up and supply them or withdraw from the part of the supply contract that has not yet been met.
3.3 In case of delay, the Customer may terminate the portion of the contract that has not yet been fulfilled if he has given us reasonable notice. Should partial deliveries that have already been made be of no use to the Customer, he shall be entitled to withdraw from the contract.
3.4 We will compensate for any damage incurred through default/delay in accordance with the following:
in the case of slight negligence the claim is restricted to additional freight costs and retrofitting costs. In case we fail to meet an extended term or the customer cannot use the relevant supply performance anymore, the customer may also claim the additional expense of purchase from an alternate source.. In assessing the level of compensation, in good faith, the economic circumstances of the supplier, the nature, extent and duration of the business relations and, if appropriate, also the value of the supplied part are to be taken into appropriate account, in our favour.
Any claims with respect to lost profits or interruption of business are expressly excluded.
3.5 Occurrence of force majeure, which shall also include strike, lockout or unforeseen (including in-house) circumstances which make the delivery impossible in spite of reasonable efforts, entitles us to postpone the delivery for the period of prevention and for an appropriate initial period or to withdraw fully or partly from the contract with respect to the portion not yet fulfilled. This shall also apply if such prevention of performance occurs during a major delay or to a sub-supplier.The Customer may request us to state within two weeks whether we wish to withdraw or supply within an appropriate extension period. If we fail to issue a statement to such effect then the Customer may withdraw from the non-fulfilled portion of the contract.
4. Dispatch and Transfer of Risk
4.1 In principle, delivery is made “ex works”. Goods that have been reported to be ready for dispatch should be accepted without delay, otherwise we shall be entitled to dispatch or store them at our discretion with the cost and risk thereof being borne by the Customer. Once they are put into store they shall be deemed to have been delivered.
4.2 As soon as they have been transferred to the railway, the forwarding agent or the freight carrier, the risk passes to the Customer even if we are responsible for the delivery.
5. Reservation of Title
5.1 Property and title to all goods supplied (goods under reservation) shall remain with us until all claims with respect to the business relationship have been met, especially any balance claims to which we are entitled, irrespective of the legal reason. This also applies if payments are made against a specific claim. The Customer authorizes us with immediate effect, in case of default in payment or if facts become known that give rise to justified doubts regarding the creditworthiness of the Customer, to enter his premises and collect the goods that have been supplied. Recovery of the goods shall only involve withdrawal from the contract if we expressly state this in writing. In such instances we shall also be entitled to prohibit the reserved goods from being treated, processed or sold.
5.2 Treatment and processing of the goods under reservation are carried out for us as manufacturers within the meaning of § 950 BGB (German Civil Code) . Where the goods under reservation are processed, combined and mixed by the Customer with other goods we shall be considered as co-owners of the new item for the invoice value of the goods under reservation as a proportion of the invoice value of the other goods used. Should our ownership of such goods under reservation lapse as a result of the goods being combined, mixed or processed, the Customer shall transfer to us with immediate effect the proprietary rights he holds with respect to the new item to the extent of the invoice value of the goods under reservation and shall store them in our behalf without charge. The co-ownership rights resulting from this shall be deemed to be reserved goods within the meaning of Section 5.1.
5.3 The Customer may only sell the goods in the course of normal trading and as long as he is not in default provided that the claims arising from the resale in accordance with Sections 5.4 and 5.5 are transferred to us. He is not entitled to any other rights of disposal with regard to the goods.
5.4 Claims of the Customer arising from resale of the goods are hereby assigned to us. They provide security for us to the same extent as the goods.
5.5 Should the Customer sell the goods together with other goods not supplied by us, the claim shall only be assigned to the extent that it is equivalent to the invoice value of the goods that have been sold by us. Where goods are sold for which we have co-ownership rights pursuant to Section 5.1, the equivalent to the shares co-owned by us shall be assigned.
5.6 The Customer shall be entitled to collect payments from sales in accordance with Sections 5.3 and 5.4 until revocation by us. We only have the right to revocation if the Customer has not complied with the terms of payment or facts become known which give rise to justified doubts regarding the creditworthiness of the Customer. The Customer is not authorized to assign any claims to third parties under any circumstances. He shall, if we request him to do so, immediately notify his customers of the assignment to us and provide us with the information and documents necessary for collection of payment.
5.7 Should the total value of the existing securities exceed the secured claims by more than 10% we shall then be obliged to release the respective securities as we may choose at our discretion.
6. Warranty Claim
6.1 The regulations as stipulated in the German Civil Code, as far as no other agreements have been made. If the contract conditions are meant shall be judged at time of risk transfer. In case of production according to the drawing submitted by the Customer we shall only be liable for the parts to be made in accordance with the drawing and not for their function. A guarantee is only granted if expressed by our legal representative, handed over in writing and identified as such. The warranty period shall be to 24 months after the risk has been transferred.
6.2 The Customer shall inspect the goods in accordance with § 377 HGB (German Commercial Code) and without delay give notification of any defects that are discovered 6.3 We must be given the opportunity to examine the notified defects. If defects are discovered and notified in time, at our discretion, the parts will either be reworked our replaced by us. If we fail to comply with our warranty commitments or fail to meet them in accordance with the contract, the Customer shall be entitled to rescission or to claim a reduction in price. Further claims are excluded, except for the claims set out in Section 9. Customer claims for other necessary expenditures, especially for transport, traveling, labour, and material costs are unacceptable, if the costs increase due to any alterations with regard to the place of destination which are not relevant to contract.
6.4 As long as the parts supplied by us are directly or indirectly delivered from our immediate Customer to his final Customer, instead of sections 6.1 to 6.3, the legal regulations will apply. We shall, however, be liable for damage claims only as set out in section 9.
7. Order-Related Production Facilities
7.1 Order-related production facilities such as patterns, templates, tools, devices etc. provided by the Customer must be dispatched to us free of charge. We shall only investigate whether production facilities provided by the Customer conform to contractual specifications or drawings or samples supplied to us if there has been an express agreement for us to do so. We shall be permitted to alter production facilities provided by the Customer if this seems necessary for technical reasons and the relevant work piece is not changed thereby.
7.2 The Customer shall bear the cost of changing, maintaining and replacing his production facilities.
7.3 We shall handle and look after production facilities with the care that we apply in our own affairs. We are not obliged to take out an insurance policy for order related production facilities. We shall return the Customer’s production facilities that we do not require any longer at his expense and risk or destroy them if the Customer fails to meet our request to collect them within an appropriate period of time.
7.4 Order-related production facilities that we have produced or acquired on behalf of the Customer shall remain our property even if the costs have fully or partially been assumed by the Customer. We shall retain them for a period of 3 years after series production has come to an end.
7.5 If a production facility that can be used only once produces scrap castings, the Customer shall either provide a new production facility or bear the cost of the replacement facility.
7.6 Parts provided by the Customer which are to be installed by us shall be provided in perfect and dimensionally accurate condition. The Customer shall replace any defective parts.
The Customer may use documents and drawings supplied to him and any design work and proposals provided by us only for the use of the parts as agreed with us, and shall neither make them available to third parties nor the subject of publications without our consent.
9. Compensation, Liability
9.1 The Customer shall bear the responsibility for the proper design including observation of any safety regulations, selection of the material and necessary testing procedures, accuracy and completeness, supply regulations and for the documents and drawings that have been handed over and any facilities and parts provided to carry out the work even if changes are suggested by us which meet his approval. The Customer shall also be responsible for ensuring that information that he has provided does not infringe industrial property rights or other third-party rights.
9.2 The Customer shall indemnify us against any claims for compensation asserted against us by a third party which originate within the Customer’s spheres of responsibility.
9.3 We shall only be liable to pay compensation for infringement of contractual, non-contractual or other advisory or other ancillary obligations
-in a case of intent,
-in a case of gross negligence on the part of executive bodies and accomplices,
-when and if a guarantee declaration has been explicitly confirmed by an executive body in writing,
-where a claim can be declared, based on the German Product Liability Act.
-in the case of culpable infringement of essential contractual duties, restricted to typical losses which were foreseeable when the contract was signed.
-where lives are harmed, in body or health, in a case of intent or negligence by executive bodies and accomplices.
10. Place of Performance and Court of Jurisdiction
The place of performance is the location of our supply plant. The Court of jurisdiction is Hagen. We are also entitled to sue the Customer at his general Court of jurisdiction.
11. Applicable Law
The substantive law of the Federal Republic of Germany shall apply exclusively to all legal relationships between the Customer and ourselves excluding the law with regard to the United Nations Treaty of 11th April 1980 on contracts relating to the International Sale of Goods based on the currently applicable law.