GENERAL TERMS AND CONDITIONS OF SALE SCHUBERTH GROUP
(LAST REVISED MARCH 2019)
1. GENERAL – SCOPE
1) Our Terms and Conditions of Sale shall apply exclusively; we do not acknowledge any conflicting terms and conditions or any deviating from ours or additional conditions by the customer, unless we had explicitly consented to their validity in writing. Our Terms and Conditions of Sale shall also apply if we unconditionally perform the delivery to the customer, although we know about the conflicting or deviating conditions by the customer.
2) Our Terms and Conditions of Sale shall only be applicable vis-à-vis entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 para. 1 of the German Civil Code (BGB).
3) Our Terms and Conditions of Sale shall also apply for all future similar business transactions with the customer, without us having to make reference again to them in each and every individual case.
2. OFFER – CONTRACT CONCLUSION
1) Our offers shall be subject to change and non-binding. For legal validity, any acceptance confirmations and all orders shall require our confirmation in writing or by fax.
2) As far as our offers do not explicitly include a deviating binding period, we shall keep ourselves bound to it for one week after the date of the offer. Decisive for on-time acceptance shall be the receipt of the acceptance confirmation at our premises (preferably email to auftragsbestaetigung@schuberth.de).
3) The customer's order of the goods shall be considered a binding contract offer. Unless otherwise resulting from the order, we shall be entitled to accept this contract offer within 30 days after its receipt at our premises.
4) The customer shall bear the risk of usability for the delivery or service, unless otherwise agreed upon explicitly and in writing in the individual case.
5) Any information regarding the object of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our presentations of the same (e.g. drawings and illustrations) shall only be approximately relevant, unless its applicability for the contractually intended purpose requires exact conformity. They are no guaranteed quality characteristics but rather descriptions or designations of the delivery or service. Permissible shall be any deviations customary in the trade and deviations which are due to legal provisions or which present technical improvements, as well as the substitution of components by equivalent parts, as far as they do not impair the usability for the contractually intended purpose.
6) The purchase contract, including these General Terms and Conditions of Sale, shall be solely authoritative for the legal relationships between us and the customer. It fully reflects all understandings between the contracting parties with regard to the subject matter of the contract. Verbal commitments by the vendor before the conclusion of this contract shall not be legally binding, and verbal understandings of the contracting parties shall be replaced by the written contract, unless it explicitly results from them respectively that they continue to apply in a binding manner.
7) Any supplements and modifications of the agreements made, including these General Terms and Conditions of Sale, shall require the written form for their validity. With the exception of managing directors or authorised signatories, our employees shall not be entitled to enter into verbal understandings deviating from this.
8) Silence on our part with regard to offers, requests or other statements by the customer shall only imply consent if this had been explicitly agreed upon in writing beforehand.
3. PERIOD OF DELIVERY
1) Delivery dates or deadlines shall be non-binding unless they have been explicitly agreed upon in writing as binding.
2) As far as we cannot comply with binding delivery deadlines for reasons which we are not responsible for (non-availability of the service), we shall immediately inform the customer thereof and advise him/her, at the same time, of the expected new delivery deadline. If the service is not available even within the new delivery deadline, we shall be entitled to rescind the contract wholly or in parts. We shall immediately refund any consideration already rendered by the customer. A case of non-availability of the service in this sense shall be considered, in particular, the late delivery by our supplier to ourselves, if we concluded a congruent covering transaction, where neither we nor our supplier are at fault, or where we are not obligated to provide procurements in the individual case.
3) If the delay takes more than two months according to clause 3.2, the customer shall be entitled to rescind the contract with regard to its still unperformed part. If the period of delivery is extended, or if we are released from our obligation for reasons which we are not responsible for, the customer may not derive any damage claims from this. We may only invoke the indicated circumstances if we immediately notify the customer.
4) Due to a breach of duty which is not attributable to a defect, the buyer may only withdraw if we are responsible for the breach of duty. Any claims going beyond shall be generally excluded – in particular also with regard to a compensation for delays – unless the delay is due, on our part, to gross negligence or intent.
5) We shall be entitled to partial deliveries and partial services to a reasonable extent. Partial deliveries and partial services shall be reasonable in particular if
- the partial delivery is usable for the customer within the scope of the contractually intended purpose;
- the delivery of the remaining ordered goods is ensured, and
- the customer does not incur thereby any substantial extra expenditure or additional costs (unless we declare our willingness to take over these costs).
6) Prerequisite for compliance with our delivery and performance obligations shall be the on-time and proper implementation of the customer's obligations. They do not begin to run as long as the customer does not meet these obligations. Prerequisite for the delivery shall be the on-time and proper implementation of the customer's obligations. The plea of non-performance of the contract shall remain reserved.
7) If the customer defaults the acceptance, fails to act in cooperation or if our delivery is delayed for other reasons which the buyer is responsible for, we shall be entitled to demand restitution of the damage which we incurred, including additional expenses (e.g. warehouse costs). For this, we shall charge a flat rate compensation in the amount of 0.5% for every completed week of default; however, at maximum up to 5% of the invoice value of the deliveries and services affected by the default, beginning with the delivery deadline or – in case of a lack of a delivery deadline – with the notice of the readiness for dispatch of the goods. Any provision of the evidence of higher damages and our statutory claims (in particular, reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the flat rate is to be offset against further monetary claims. The buyer shall be allowed to furnish proof that we had not incurred any damage at all or that the damage was substantially lower than the aforementioned flat rate. Upon the onset of default in acceptance, the risk of accidental deterioration and accidental loss shall pass to the customer.
4 PRICE, PACKAGING, DISPATCH, INSURANCE, PASSING OF RISK
1) Our prices shall be net, ex factory, excluding packaging and insurance; in case of export deliveries, plus customs duties, as well as fees and other public charges. Unless otherwise agreed, dispatch shall be at the customer's expense in a manner customary in trade or commerce, without responsibility for the cheapest form of dispatch.
2) Pursuant to Section 447 German Civil Code (BGB), the risk of accidental loss and the accidental deterioration of the goods, as well as the risk of delay shall pass upon delivery of the goods to the forwarder, the carrier or any other person or institution charged with the execution of the dispatch or to the customer at the point in time when the goods left the warehouse for the purpose of dispatch. If it is agreed upon that the customer collects up the goods, the risk shall pass to the customer with the notification of the readiness for pick-up or collection. As far as acceptance testing has been agreed upon, this shall be determining for the passing of risk. For any agreed upon acceptance, the statutory provisions of the law on contracts for work and services shall incidentally also apply analogously.
3.) If delivery / service is made to a place of destination outside the territory of the Federal Republic of Germany, the customer shall bear the risk of importability and the responsibility for compliance with import regulations.
5 WARRANTY
1) Solely the product description enclosed with the contract shall be relevant for the quality of the goods sold by us.
2) With regard to obvious defects or other defects which would have been detectable in a prompt, careful examination, the goods sold by us shall be considered as approved by the customer unless we receive a written notice of defects within seven working days after delivery. With regard to other defects, the delivery objects shall be considered approved by the customer if we do not receive the notice of defects within seven working days after the point in time when the defect became apparent; however, if the customer was able to detect the defect in normal use at an earlier point in time already, this earlier point in time shall be relevant for the beginning of the complaint period.
3) If the object of sale has a defect, we shall be entitled, at our discretion, to chose between subsequent performance in the form of a remedy of defects or the delivery of a new, defect-free object. In case of the justified notice of defects, we shall however only bear the required expenditures for the elimination of the defect – such as wage costs, material, transport and road costs – if these expenditures are not increased due to the fact that a delivery objective is retroactively brought to another location than the customer's registered office, unless this movement is in accordance with the intended use. The customer shall bear any additional costs which are incurred due to the customer not deciding on the most economical transport or dispatch route.
4) The customer shall give us the required time and occasion for the supplementary performance owed; in particular, to surrender the rejected goods for purposes of examination. In case of the substitute delivery, the customer shall return the defective object to us in accordance with the statutory provisions. Our right of realising the supplementary performance if the statutory requirements exist shall remain unaffected.
5) If the supplementary performance fails, the customer shall be entitled, at its discretion, to demand either rescission or reduction. This shall also apply if a reasonable period set by the customer for supplementary performance expired unsuccessfully. Rescission shall be excluded if the defect is negligible.
6) The period of limitation concerning claims for defects shall be 12 months, counted from the passing of risk. The statutory period of limitation in case of a delivery recourse according to Sections 478, 479 of the German Civil Code (BGB) shall remain unaffected.
7) All claims by the customer – for damages and compensation for expenditures incurred in vain due to defects – shall only exist in accordance with the provisions of clause 6; in other respects they shall be excluded.
6 LIABILITY
1) In accordance with this clause, our liability for damages shall be limited, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, violation of duties during contract negotiations and in tort, as far as it is respectively a matter of fault.
2) We shall be liable according to the statutory provisions if the customer claims damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Unless we are charged with intentional breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage.
3) We shall be liable according to the statutory provisions if we are in culpable breach of a material contractual obligation, i.e. an obligation that defines the contract and which the customer may rely upon. However, in this case, the liability for damages shall be limited to the foreseeable, typically occurring damage.
4) For mere economic loss, our liability shall be limited to € 7,500,000.00, unless the damage was intentionally caused.
5) Liability due to culpable violation of life, limb or health shall remain unaffected; this shall also apply for strict liability under the Product Liability Law.
6) Unless something deviating has been stipulated above, liability shall be excluded.
7) As far as the liability for damages towards us is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
7 SAFEGUARDING THE RESERVATION OF OWNERSHIP
1) We shall reserve ownership in the goods sold until complete payment of all our current and future receivables under the purchase contract and an ongoing business relationship. In case of several claims or current account, the reservation of ownership shall be considered as a security for the balance claim even if individual goods deliveries have been paid. In the event that the customer acts in violation of the contract, in particular in case of default in payment, we shall be entitled to repossess the purchased object. Repossession of the purchased object shall be a rescission of contract. After repossession of the purchased object, we shall be entitled to its liquidation; the proceeds from the recovery shall be credited towards the customer's liabilities – minus reasonable liquidation costs.
2) For the duration of the reservation of ownership, the customer shall be obligated to treat the purchased object with care; in particular, the customer shall be obligated to adequately insure it, at his/her own costs, against damage by fire, water and theft to cover the original value. If maintenance and inspection work is required, the customer shall carry it out in good time and at its own costs. Upon request, the customer shall be obligated to furnish proof that the insurance has been taken out and, now already, assign to us all claims for compensation under the insurances. We hereby accept this assignment now already. Should the assignment be non-permissible, the customer shall instruct the insurer to effect any payments solely to us. Any further claims shall remain unaffected.
3) In the event of attachments or other interventions by third parties or in case of a petition to open insolvency proceedings over the customer's assets, the latter shall immediately notify us in writing so that we can file suit pursuant to Section 771 of the Rules of Civil Procedure (ZPO). As far as the third party is not in a position to refund to us the judicial or extra-judicial costs of prosecution pursuant to Section 771 ZPO, the customer shall be liable for the loss incurred to us.
4) In the proper course of business, the customer shall be entitled to further sell the purchased object being under reservation of ownership. The customer shall not be permitted to make pledges and assignments as security as well as others dispositions that might jeopardize the ownership. However, the customer shall now already assign to us all receivables and ancillary rights in the amount of the sum total amount of the invoice (including value-added tax) of our claim – in case of co-ownership in the conditional goods on a pro-rated basis according to the co-ownership share – which accrue to him from the further sale against its buyers or third parties, irrespective of whether the purchased object has been sold further without or after processing. We hereby accept this assignment now already. The customer shall remain entitled to collect this claim even after the assignment. The customer shall immediately pass on to us the proceeds to which we are entitled on the basis of the assignment. Our authority to collect the receivables ourselves shall remain unaffected thereby. However, we agree not to collect the claims ourselves as long as the customer discharges his payment obligations under the proceeds collected, is not in default of payment and, in particular, as long as there is no petition to open composition or insolvency proceedings or any suspension of payments. If that is the case, however, we may demand that the customer discloses to us the assigned claims and their debtors, provides all necessary information for the collection, hands over the appropriate documents and notifies the debtors (third parties) about the assignment. In that case, we shall be moreover entitled to revoke the customer's authorisation to further sell and process the goods under reservation of ownership. This shall also apply in the event that we want to exercise our right according to clause 7.1 et seq.
5) Processing or modification of the purchased object by the customer shall always be done for us. If the purchased object is processed together with other items not belonging to us, we shall acquire co-ownership in the new object at the ratio of the value of the purchased object (final amount of the invoice, including value-added tax) to the other processed objects at the time of processing or modification. The same shall apply, incidentally, for the matter created by processing as for the purchased object conditionally delivered.
6) If the purchased object is inseparably mixed together with other items not belonging to us, we shall acquire co-ownership in the new object at the ratio of the value of the purchased object (final amount of the invoice, including value-added tax) to the other mixed objects at the time of mixing. If mixing is effected such that the customer's matter is to be considered as the principal matter, it shall be considered agreed upon that the customer transfers pro-rata co-ownership to us. The customer shall safeguard the thus created sole ownership or co-ownership for us.
7) The customer shall also assign to us the claims for securing our claims against him/her which arise due to the connection of the purchased object with a real property versus a third party.
8) We shall be obligated to release – upon the customer's request – the securities to which we are entitled insofar as the realisable value of our securities exceeds by more than 10 % the receivables to be secured; we shall be responsible for selecting the securities to be released.
9) If delivery is effected to a place of destination outside the territory of the Federal Republic of Germany and if the applicable law at the place of destination does not provide any equivalent security effect – as is the case according to the law of the Federal Republic of Germany – with regard to the reservation of ownership provided according to these conditions or the pertinent contract, the customer shall be obligated to grant us an equivalent security interest.
8 RESALE
1) The sale of merchandise from our supplies shall only be permissible to end consumers and such dealers who also procure goods from us or from our national importers in the respective countries. Upon inquiry by the ordering party, we shall advise in the individual case whether we supply merchandise to a dealer.
2) The sale of our products via platforms as well as internet sites shall principally not be allowed if they are not in accordance with a high-quality presentation of the merchandise and also not in accordance with the brand image of our products.
9 PAYMENT
1) Prices shall be valid for the scope of performance and delivery specified in the order confirmations. Extra or special services shall be separately billed. Unless otherwise agreed upon in writing, payment shall be due strictly net upon receipt of the invoice.
2) Any deduction of a cash discount shall require a special agreement in writing. Moreover, a cash discount shall only be granted to the customer if he/she always met all our previous receivables.
3) As far as the stipulated prices are based on our list prices and delivery is only to be effected more than four months after contract conclusion, the list prices valid at the time of delivery shall apply (in each case minus a stipulated percentage or fixed discount).
4) Bills of exchange and checks shall only be considered paid after they have been honoured. Bills of exchange shall only be accepted after prior written agreement; any extra charges shall be at the customer's expense.
5) The customer shall only be entitled to offsetting rights if his/her counterclaims are legally enforceable and final, or if they are undisputed or acknowledged by us. Moreover, the customer shall only be entitled to exercise a right of retention if his/her counterclaim is based on the same contractual relationship.
6) We are entitled to assign our claims to third parties, in particular to BFS Finance GmbH, Verl, and in particular within the scope of factoring. If we use our right of assigning claims against customers to third parties, we shall inform the customer thereof. As far as we assigned claims against the customer and informed the customer thereof, the customer may only make payments with a debt-discharging effect to the third party.
10 DELAY IN PAYMENT
If the buyer is in delay with the payment of the purchase price, he/she shall owe us – for the duration of the delay – interest on arrears in the amount of 10% above the ECB's basic interest rate. Any further claims on our part shall remain unaffected.
11 ASSIGNMENT OF CLAIMS BY THE BUYER
The contract concluded with us or any individual claims in the contract shall not be assigned, wholly or in parts, to third parties without our explicit written consent.
12 COPYRIGHTS
1) Concerning the purchase of our goods, use of our copyrights shall only be connected with it as far as it is necessary for using the individual product. Technical analysis, exploitation of disclosed processes or the further utilisation of copyrights shall be excluded.
2) Furthermore, any promotional emphasis of our products beyond the usual in the trade or any advertisement with us as the business partner shall be excluded.
13 PLACE OF JURISDICTION – PLACE OF PERFORMANCE
1) Magdeburg (our registered office) shall be the place of jurisdiction if the customer is a merchant, legal entity under public law or special funds under public law. In payment matters, legal action may also be brought against the customer in Gütersloh or its registered office – at the creditor's discretion.
2) Unless otherwise provided for in the order confirmation, our registered office shall be the place of performance for delivery and payment.
14 FINAL PROVISIONS
1) The law of the Federal Republic of Germany shall apply. Application of the UN Sales Convention shall be excluded.
2) All agreements entered into between us and the customer for the purpose of execution of this contract shall be laid down in writing.
GENERAL TERMS AND CONDITIONS OF PURCHASE SCHUBERTH GROUP
(LAST REVISED MARCH 2019)
1. SCOPE
1.1. Unless otherwise stipulated by individual agreement, orders of goods or services by companies of the Schuberth Group – hereinafter referred to as Customer – shall always be effected by these Terms and Conditions of Purchase. These Terms and Conditions of Purchase shall also apply to all future deliveries, services or offers by the Contractor even if they are not once again separately agreed upon.
1.2. These Terms and Conditions of Purchase shall be applicable vis-à-vis companies, legal entities under public law and special funds under public law.
1.3. These Terms and Conditions shall apply exclusively; the Customer does not acknowledge any conflicting terms and conditions or any terms and conditions deviating from ours, unless the Customer explicitly consents to their validity in writing. These Terms and Conditions shall also apply if the Customer unconditionally accepts the delivery by the Contractor although the Customer knows about the conflicting or deviating conditions by the Contractor.
2. DEFINITION OF DELIVERY AND SERVICE
The definitions of delivery and service in the order issued by the Customer (including any attachments) shall apply.
3. ORDERS AND CONTRACT CONCLUSION
3.1. Offers by the Customer shall only be binding if they are made in writing. Verbal orders or changes of orders shall only be binding if they are confirmed in writing by the Customer.
3.2. Mere price requests by the Customer shall be non-binding and only understood as a request to the Contractor to submit an offer on its part.
3.3. As far as the offers by the Customer do not explicitly include a deviating binding period, the Customer shall hold itself bound to it for one week after the date of the offer. Decisive for on-time acceptance shall be the receipt of the acceptance confirmation at the Customer's (preferably email to auftragsbestaetigung@schuberth.de).
3.4. The Contractor shall be obligated to accept an order by the Customer – within the period set by the Customer – either in writing or by email (order confirmation) or by unconditional rendering of the service (delivery). The order shall be deemed accepted even if it has not been confirmed by the Contractor within the aforementioned period or if it had not been objected to.
3.5. If the Customer advised the Contractor about the intended purpose of the delivery or service, the Contractor shall be obligated to immediately inform the Customer if the Contractor's delivery or service is not suitable to meet this intended purpose. In that case, the Customer shall be entitled to rescind the contract without having to pay damages on its part.
3.6. The Contractor shall bear the risk of procurement for its delivery or service, unless otherwise agreed upon explicitly and in writing in the individual case.
3.7. The Customer shall be entitled to change the time and place of the delivery at any time by a written message with a period of notice of at least 5 calendar days before the stipulated delivery date. The same shall apply for changes of product specifications as far as they can be implemented without any substantial additional expenditures within the scope of the Contractor's normal production process while the period of notification according to the preceding sentence shall be, in this case, at least 14 days. The Customer shall reimburse the Contractor for the verified and reasonable extra costs respectively incurred due to the change. If such changes result in delayed deliveries which cannot be prevented, with reasonable efforts, in the Contractor's normal production and business operations, the originally stipulated delivery date shall be postponed accordingly. In good time before the delivery date, the Contractor shall advise the Customer in writing of the extra costs or delayed deliveries to be expected according to Contractor's careful assessment; at least, however, within three working days after receipt of the message according to sentence 1 or 2.
3.8. The Customer's silence with regard to offers, requests or other statements by the Contractor shall only imply consent if this had been explicitly agreed upon in writing beforehand.
3.9. Any offers by the Contractor shall be made free of charge. Cost estimates shall only be compensated according to prior written agreement.
4. DELIVERY AND DISPATCH
4.1. Unless otherwise agreed upon in writing, delivery shall be made free receiving point at the Contractor's expense and free of all charges and customs duties. The Customer shall be notified immediately of any dispatch. The outside of the packaging, the notification of dispatch, and the delivery note must display the Customer’s order data, in particular the order number, shipping address, article name, quantity/weight information, and the production date/batch number, and, if necessary, storage instructions and material shelf life. The delivery note shall be enclosed in duplicate with the consignment. The Customer shall be entitled to reject, at the Contractor’s expense, deliveries not properly effected/notified. Moreover, any stipulated payment terms shall be extended by the period of time by which the Customer's processing will be delayed because one or more items of information are missing.
4.2. Deliveries may be made only in the time from 6:00 a.m. to 3:00 p.m., Monday to Friday (not on legal public holidays and days on which the company is closed).
4.3. The Contractor undertakes to determine, before accepting an order, whether the goods or their components designated in the order must be classified as hazardous goods (e.g. as paints, adhesives, chemicals, or goods which are flammable, oxidizing, explosive, combustible, poisonous, radioactive, corrosive, or tend to self-heating). In these cases, the Contractor shall notify the Customer, comply with any respectively current, nationally and internationally valid regulations (e.g. GefStoffV, GGVS, GGVSee, BioStoffV, UN/ICAD, IATA, EVO/RID, KVO/ADR) as well as any possibly deviating or additional regulations of the receiving country, and prepare in duplicate the required declarations (e.g. the pertinent EU safety data sheets) – filling them out correctly and providing a legally binding signature – and send them to the Customer as quickly as possible.
4.4. Transfer of risk and ownership
4.4.1. The Contractor shall bear the risk of accidental transfer and accidental deterioration of the goods until the contractual surrender to the Customer. This shall also apply if dispatch by the Contractor is agreed upon. If the goods are returned in the event of a warranty claim, the Contractor shall bear the risk as of the concluded loading for return.
4.4.2. Ownership shall pass to the Customer at the latest upon conclusion of the unloading process at the receiving point. Transfer of ownership in the goods to the Customer shall be absolute and irrespective of the payment of the purchase price. If the Customer accepts, in the individual case, an offer by the Contractor which is subject to the purchase price payment, the Contractor's reservation of ownership shall expire at the latest upon the purchase price payment for the goods delivered. In the ordinary course of business, the Customer shall remain authorised to resell the goods even before payment of the purchase price on condition of the advance assignment of the claim resulting therefrom. Excluded shall be all other forms of reservation of ownership, especially the expanded or the assigned reservation of ownership as well as that extended to further processing.
4.4.3. Ownership in production means (e.g. tools), which are used at the Contractor's business for the manufacture of supplies and services and which are paid for by the Customer shall – upon payment by the Customer– be transferred to the Customer pursuant to Sections 929, 930 of the German Civil Code (BGB); such means shall be marked as the Customer's property, maintained and adequately insured by the Contractor. Upon the Customer's request, the means of production shall be surrendered immediately to the Customer. If the Contractor has co-ownership, the means shall be gradually surrendered against compensation payment of the co-ownership share. If there is disagreement regarding the share of co-ownership, the Customer may avert the Contractor's right of retention by providing security in the disputed amount. The Contractor may use these production means for third parties only upon the Customer's prior written consent.
4.4.4. Partial services and partial deliveries shall not be allowed unless otherwise explicitly agreed upon.
4.5. Incoming and Outgoing Goods Inspection; Access Right
4.5.1. The Contractor may dispatch only parts which have been inspected and approved; it is therefore unnecessary for the Customer to conduct a detailed incoming goods inspection. This shall not apply for the inspection of goods pertaining to the existence of obvious defects.
4.5.2. The Customer shall, after prior announcement, be allowed unrestricted access to the relevant manufacturing facilities during the Contractor’s usual hours of business for the purpose of inspecting the manufacturing status and/or the Contractor’s quality processes.
5. AGREEMENTS ON DEADLINES / CONTRACTUAL PENALTY IN CASE OF DELAYED DELIVERY OR SERVICE / OBLIGATION TO ACCEPT THE GOODS IN CASE OF OPERATIONAL FAILURES
5.1. The delivery and performance dates specified in the order shall be binding dates of receipt at the stipulated delivery address. If the Contractor realises that the agreed dates and deadlines cannot be complied with, he shall immediately notify the Customer in writing of the reason for and the duration of the delay. If a contractual penalty has been agreed upon in the event of a delayed delivery, more extensive legal claims by the Customer shall remain unaffected. The Customer may demand payment of the contractual penalty until the final payment has been made, or offset it against any due payments even if performance has been accepted without reservation.
5.2. In the event of natural disasters, strikes, lock-outs, regulatory actions, transport failures and breakdowns at the Customer’s plant or in the area of its suppliers resulting in restrictions or the shut-down of its production, or which prevent the transport of ordered goods, the Customer shall not be released from its purchase acceptance obligations if and when said obstacle continues for less than two months. Any claims on the part of the Contractor for consideration or damages shall be precluded in these cases and for this period of time.
6. PRICES/COMPENSATION/PACKAGING
The agreed prices shall be binding and fixed for the duration of the order, free works or specified delivery address, including environmentally friendly package usual in the trade, and transport insurance. The Contractor agrees to take back the packaging of the delivered goods at its costs upon the Customer's request.
7. TERMS AND CONDITIONS OF PAYMENT
7.1. The order number shall be indicated in all order confirmations, delivery documents and invoices. With the invoice at the latest, the Contractor shall submit the certificates of origin requested by the Customer, e.g. contractor declarations and movement certificates, as well as test certificates, filled out completely and signed. The same shall apply accordingly with respect to documentary evidence regarding value-added tax for deliveries / services provided abroad and within the European community. Should any or several items of such information be missing and processing be delayed thereby within the scope of the Customer's business dealings, the below indicated payment terms shall be extended by the duration of this delay.
7.2. As of the date of submission of invoice and certificate of origin as well as of the performance of the service – if these dates do not coincide, the date which comes later should always be relevant – payment shall be made within 21 days with a 3% cash discount, or 45 days net; however, without acknowledgement of the delivery/service being in conformity with the contract. The Customer shall be entitled to deduct the discount if the Customer offsets with other claims against the Contractor or legitimately withholds payments due to deficiencies of services or goods. The Customer shall not owe any default interest according to Section 353 of the German Commercial Code (HGB). The statutory provisions shall apply in case of default of payment.
8. LIABILITY REGULATIONS
8.1. Complaint of Defects/Warranty
8.1.1. The Contractor shall warrant that the delivery / service is free from defects, suitable for the stipulated purpose and has the quality stipulated in the order. The Contractor shall warrant that wear parts will, as a minimum, perform the usual number of operating hours without any defects. The Contractor shall warrant that its delivery/performance is in compliance with, in particular, the rules of technology and the state of science, the regulations and guidelines issued by the legislature, the supervisory authorities and the trade associations, as well as with the pertinent EU directives regarding design, accident prevention and environmental protection, and that the Contractor successfully completed all environmental compatibility tests required for the type of product.
8.1.2. The warranty period shall be 36 months as of the passing of risk to the Customer, unless statutory provisions provide, in the individual case, for a longer period of limitation. This shall also apply for spare parts as of their installation/conclusion of any rework. The warranty period shall be extended by the time from the Contractor's receipt of the Customer's notification of defects until remedy of the defect or – if it exceeds the aforementioned period – by idle times of the Customer's product as far as they have been caused by defects and by work for the remedy of defects.
8.1.3. The Customer shall submit a complaint of obvious transport damage or defects without delay, at the latest 14 days after their discovery (see also 4.5). In this respect, the Contractor shall waive the plea of a delayed complaint of defects. Upon request, the Contractor shall immediately remedy any defects – at the Customer's discretion – either by eliminating the defects or delivering a defect-free object. The Contractor shall bear all costs incurred by the subsequent performance; in particular, removal and installation costs, transportation and disposal costs. Moreover, the Customer shall be entitled to the statutory claims of rescission, reduction of the purchase price and damage compensation, as far as the statutory prerequisites are met.
8.1.4. After setting a grace period of 2 weeks, the Customer shall be entitled to eliminate the defects itself, at the Contractor's expense, if there is an urgent need for action or in cases of the Contractor's delay in eliminating the defect, unreasonableness of subsequent performance by the Contractor or the Contractor's refusal to eliminate the defects, and if the Customer cannot be reasonably expected to wait any longer. Setting a grace period may be waived if the Contractor earnestly and definitively refuses the remedy of defects or if the Customer depends upon the immediate remedy of defects to ensure operational safety or avert the onset of excessive damage. The Customer's statutory claims shall not be affected thereby.
8.2. Product Liability
8.2.1. The Contractor shall indemnify the Customer from damage claims asserted against the Customer owing to a product defect for which the Contractor is also responsible.
8.2.2. Upon first request, the Contractor shall provide proof to the Customer of the existence of a product liability insurance at an adequate coverage. If proof is not submitted or if the Contractor refuses to increase the insurance sum by a reasonable amount as proposed by the Customer, the Customer shall be entitled to rescind the contract or claim damages.
9. THIRD-PARTY RIGHTS / CONTRACTOR'S INDUSTRIAL PROPERTY RIGHTS
9.1. The Contractor shall ensure that all deliveries are free from third-party industrial property rights and that, in particular, third-party patents, licenses or other industrial property rights are not infringed by the delivery and use of the delivery objects.
9.2. Upon first request, the Contractor shall indemnify the Customer and its customers against third-party claims resulting from possible infringements of industrial property rights, and the Contractor shall also bear all costs which are incurred to the Customer in this connection. The Customer shall be particularly entitled to effect permission to use – at the Contractor's expense – the relevant industrial property rights from the rightfully entitled party.
9.3. Upon request, the Contractor shall notify the Customer – indicating the registration or application number – if it has industrial property rights in the ordered deliveries or services or parts thereof or in a process for their manufacture.
10. EXTRAORDINARY RIGHT OF TERMINATION
The Customer shall be entitled to rescind the contract wholly or in parts if the Contractor's financial circumstances deteriorate substantially or if the substantiated petition to open insolvency or similar proceedings over the Contractor's assets has been dismissed for lack of assets. Any further rights shall remain unaffected.
11. CUSTOMER'S SECRETS/INDUSTRIAL PROPERTY RIGHTS
11.1. The Contractor shall be obligated to treat as a business secret any not obviously entrepreneurial information which becomes accessible to the Contractor due to the contractual relationship to the Customer and not to disclose said information to third parties even after the termination of the contractual relationship.
11.2. The Customer shall reserve all proprietary rights, copyrights and other industrial property rights in drawings, models, tools, production means, design plans, formulas and in all other information and objects, as well as in the know-how embodied therein – any of the aforementioned having been transmitted to the Contractor for executing the order. The information and objects thus provided may be made accessible to third parties only for executing the order and only with the Customer's prior written consent. The Contractor may use the information and objects solely for executing the respective order and they shall be returned immediately at the Customer's request, basically, however, after execution of the order. Any processing, mixing or combining (further processing) of objects provided by the Contractor shall be performed, if necessary, for the Customer. The same shall apply for further processing of the goods delivered by the Customer so that the Customer is considered the manufacturer and acquires ownership in the product, at the latest upon further processing in accordance with statutory regulations. The Contractor shall diligently care for such goods, safeguard them, maintain them, mark them as the Customer's property and provide adequate insurance coverage for them. In the absence of another agreement, the contracting parties shall each bear half of the costs of the goods' maintenance and repair. However, the Contractor shall bear these costs alone if they are due to defects of such objects manufactured by the Contractor or due to the improper use on the part of the Contractor, its employees or other vicarious agents. The Contractor shall immediately notify the Customer of any and all not only insignificant damages to these objects.
12. MISCELLANEOUS
12.1. The Contractor shall ensure the availability of any and all spare parts required for the functioning of the ordered delivery / service for a period of 10 years as of the time of delivery. Moreover, the Contractor agrees to supply the Customer with the spare parts at reasonable prices and at the conditions of the contract underlying the delivery / service. If the Contractor is no longer able to fulfill this obligation, it shall immediately notify the Customer thereof in writing. If the Contractor violates the obligation of ensuring the availability of spare parts, the Customer shall be entitled to replicate, at the Contractor's expense, the part no longer available. With regard to this, the Contractor shall support the Customer in every respect, such as by providing production drawings and obtaining any licenses for property rights required.
12.2. The assignment of payment claims under this contract as well as the engagement of subcontractors or suppliers shall require the Customer's prior written consent. Any consent shall not affect the statutory responsibility. The Contractor shall only have a right of retention or offsetting in case of legally enforceable and final counterclaims or those which are undisputed.
12.3. The INCOTERMS as last amended at the time of contract conclusion shall govern the interpretation of commercial clauses.
12.4. The place of performance for the deliveries and services shall be the place of destination indicated in the order.
12.5. The Customer has an environmental and energy policy and also takes it into account with regard to the selection and procurement of materials, products and services. The Customer expects the Contractor to render its delivery / service by acknowledging this policy.
12.6. With the exclusion of the UN Sales Convention (CISG), the laws of the Federal Republic of Germany shall apply to these General Terms and Conditions of Purchase as well as to any legal relationships existing or to be established in the future between the Customer and the Contractor. German shall be the contract language.
12.7. Any change or cancellation of written form requirements regulated in these General Terms and Conditions of Purchase shall require the written form. The same shall apply for any waiver of compliance with the requirement of written form.
12.8. Should any provision of these General Terms and Conditions of Business be or become invalid, wholly or in parts, this shall not affect the validity of the remaining provisions.
12.9. Magdeburg shall be the place of jurisdiction.
12.10. However, the Customer shall reserve the right to bring legal action against the Contractor at any other permissible place of jurisdiction.