General terms and conditions
- Type and size of delivery are specified in the confirmation order. Qualities and capacities of the tools can only be considered as guaranteed after written and explicit agreement. Reference to technical standards is considered as a description of capacity. The guarantee does not include the risk of loss resulting from defects, unless the supplier acts deliberately or with gross negligence.
- All offers are subject to alteration without notice, unless they are defined as firm offers. Only after confirmation by the supplier do orders become obligatory for the supplier.
- Additional verbal agreements become valid only after written confirmation by the supplier. Alterations and supplements have to be put down in writing.
- In continuous business relations these conditions apply also to pending and future transactions where no specific reference to them is made, as long as the customer has received them from the supplier on a confirmed order.
- Conditions of purchase set forth by the customer are obligatory to the supplier only if he has accepted them explicitly.
- Prices are quoted ex works exclusive of freight, duty, extra import duties, and packing, plus the legal rate VAT.
- If cost factors increase considerably after quotation or order confirmation and before delivery, supplier and customer will communicate on the adjustment of prices and the portion of cost for the tools.
- If the price is agreed as dependent on the weight of the part, the final price is determined by the weight of the approved type samples.
- The supplier is not obligated to charge on follow up orders at the same prices as on preceding ones.
III. Delivery and purchase obligations
- Terms of delivery begin after receipt of all documents necessary for order processing, the agreed payments on account, and timely allocation of material. In case delivery is impossible through no fault of the supplier the term of delivery is observed as soon as notification is given that the goods are ready for shipment.
- The delivery time quoted will, as a rule, be kept if the order has followed immediately. The out-put capacity of the tools quoted without obligation will be fixed after a trial run and approvement of the initial series. If the accorded delivery time is not observed, the customer may cancel the contract after expiration of an appropriate length of time. Further claims are excluded.
- Reasonable part shipments as well as under or over shipments up to 10 % of the ordered quantity are permissible.
- With orders on call where terms, size of production lot, and date of purchase have not been fixed, the supplier can request the termination of the above within three months after order confirmation at the latest. If the customer does not meet with this request within 3 weeks, the supplier may set an extension of another 2 weeks and after its expiration cancel the contract, or refuse delivery and demand cost indemnification.
- In case the customer does not meet his obligation to purchase the supplier – notwithstanding other rights – is not liable to the regulations of sale on his responsibility, but can sell the lot directly.
- The supplier will accept return of delivered goods on a base of fair dealing only if those goods are delivered free of charge, in perfect condition, and in the original wrapping, and after a date for the return has been agreed. The supplier may bill the customer for reasonable handling expenses.
- Incidents of force majeure entitle the supplier to delay delivery for the duration of the hindrance, and an appropriate start-up period, or because of the portion not fulfilled to cancel the contract in part or total. Equal to force majeure are strike, lock-out or unforeseen events as e.g. production breakdowns keeping the supplier from delivering in time despite reasonable efforts; proof has to be furnished by the supplier. The same applies if the above incidents occur during a delay or with one of the subcontractors. The customer can request from the supplier to declare within 2 weeks if he wants to cancel or to deliver within a reasonable extension. If the supplier gives no statement the customer may cancel the portion of the contract not yet fulfilled.
- If the Purchaser cancels the order (contract of sale), before the service has been completed, the Supplier reserves the right to charge the Purchaser the costs incurred up to that point – plus a penalty of 10% of the total contract value.
IV. Packing, Shipping, Transition of risk
- Unless otherwise agreed the supplier chooses packing, means and way of shipment to the best judgement.
- As soon as the goods leave the supplier’s premises the risk passes on to the customer and also when delivery is made freight prepaid. If the customer is responsible for a delay in shipment, the risk passes on to him when notice is given that the goods are ready for shipment.
- Upon written request from the customer the goods will be insured at his expense against damage resulting from storage, breakage, transport, and fire.
V. Reserved right of ownership
- Goods remain the property of the supplier until all claims the supplier has against the customer have been fulfilled, even if the price for specified demands has been paid. On current accounts the reserved right of ownership on the deliveries (reserved goods) serves to secure the balance due to the supplier. Companies belonging to the group of the parties to the contract and reported as such are also considered as customer and supplier. If in connection with payment of the sales price a draft liability of the supplier arises, the reserved right of ownership does not expire until the draft is paid by the customer as payer.
- Working and processing by the customer excludes the acquisition of property according to § 950 BGB on behalf of the supplier; the supplier remains owner of the so produced goods serving as reserved goods to secure the supplier’s demands as in 1.
- If the customer puts the goods into work (joining/mixing) with other goods not belonging to the supplier, §§ 947, 948 BGB apply to the extent that the supplier’s part ownership on this new product represents reserved goods as specified in these conditions.
- The customer can only sell the reserved goods in regular transactions, if he in turn arranges with his customer for a reserved right of ownership in accordance with items 1 to 3. the customer has no right to any other dispositions of the reserved goods, especially not mortgaging and protective conveyance.
- The customer herewith transfers all rights and subordinate rights and demands toward his customers resulting from the sale to the supplier until the supplier’s demands have been fulfilled. If the supplier requests such, the customer is obligated to furnish all information and documents necessary for the assertion of the supplier’s rights toward the customers of the purchaser.
- If the reserved goods are sold after processing according to item 2 and/or 3 together with other goods not belonging to the supplier, the transfer of the demand on the sales price according to 5 is valid only up to amount billed by the supplier for the reserved goods.
- If the value of the securities fixed for the supplier exceeds his total claims for more than 10 % the supplier is obligated to release securities of this choice at the customer’s request.
- The supplier has to be notified immediately of seizure or confiscation of the reserved goods by a third party. Costs arising from possible intervention as a result of the above will in any case be charged to the customer.
- In case the supplier makes us of his reserved right of ownership according to the above stipulations by taking back reserved goods, he is entitled to sell the goods directly or to have them sold by auction. Reserved goods are taken back for the amount of proceeds, but at best for the agreed price of delivery. Further claims for indemnification of loss, especially lost profit are reserved.
VI. Defect Liability
- Type samples determine the quality and finish of the products which the supplier will present to the customer for approval at his request.
- If the supplier has counselled the customer, he is liable for the functioning and the suitability of the plastic part only, if he has given a written guarantee. The technical standard at the time the order was accepted is relevant.
- Deficiency claims have to be made immediately in writing, two weeks after receipt of the shipment at the latest. Concealed defects extend this term to one week after discovery of the fault, but at the most to six months after receipt of the goods.
- In case of a justified claim – quality and finish are determined by the type samples which have been approved by the customer in writing – the supplier is obligated to either improve or to replace the defective goods free of charge or to indemnify the customer for the damage caused by the defect up to the value of the delivered goods. This obligation does not include any extra cost in connection with the subsequent delivery as e.g. caused by installation and dismounting. If the supplier fails to meet these obligations within a reasonable term, the customer is entitled to declare voidance or conversion of or withdraw from the contract. Further claims are excluded. Replaced parts have to be returned to the supplier free of charge at this request.
- Unauthorized repair or improper handling cause the loss of all claims. Only to avoid excessive damages or in case repair of the defect is delayed by the supplier, the customer may effect repair after prior communication with the supplier and request indemnification of reasonable expenses.
VII. General Liability Limitations
- In all instances where contract or law provide for the supplier’s obligation to pay damages he is only liable if he or his executive employees can be charged with deliberate action or gross negligence.
- If in the contract the supplier accepts the obligation to test his products for the existence of certain characteristics, he is liable for every fault, but only if the damage is caused by non-observation of the customer’s instructions for examination.
VIII. Terms of payment
- All payments are to be made in EURO directly and only to the supplier.
- Unless otherwise agreed,
a) 50 % net of the sales price for moulds has to be paid at the time of order confirmation and 50 % net 30 days after the type samples provided for in the contract have been presented. Upon confirmation of orders for alteration given by the customer before completion of the moulds, all costs incurred up to then in excess of the down payment have to be refunded.
b) the sales price for deliveries of parts or other services has to be paid net within 30 days after date of invoice.
c) the sales price for machines and equipments is to be paid net within 30 days after date of invoice.
- If the agreed term of payment is exceeded a 2 % interest (above the bank rate of the Deutsche Bundesbank) is charged, unless the supplier furnishes proof of higher debit interest.
- The supplier reserves the right to refuse the acceptance of checks or drafts. Checks and drafts eligible for discount are only accepted as payment in fulfilment, all collection costs are debited to the customer.
- The customer can only set off the goods or assert a lien on them if his claims are uncontested or rightfully established.
- Failure to comply with the terms of payment or circumstances likely to reduce the credit standing of the customer effect that all demands the supplier has against the customer become due immediately. Beyond that the supplier has the right to demand prepayment for deliveries not yet effected as well as to cancel the contract after a reasonable respite has elapsed or to demand indemnification for non-compliance with the contract, also to prohibit the sale of the goods and to retrieve unpaid goods at the expense of the customer.
- The price for the moulds includes the cost for one sampling but not expenditures for testing or processing devices or alterations requested by the customer.
- Unless otherwise agreed the moulds constructed by the supplier or a third party on his behalf are and remain the property of the supplier. They will only be used to produce the customers’ orders as long as the customer meets his obligations of payment and purchase. The supplier will have to replace the moulds free of charge only, if this becomes necessary to reach the output quantity guaranteed the customer. The obligation for the supplier to store the mould expires two years after the last delivery of parts produced from this mould and after notification to the customer.
- If it is agreed that the customer is to become owner of the moulds, the right of property passes on to the customer after payment of the sales price. Transfer of the moulds to the customer is replaced by the obligation for storage of the supplier. Irrespective of the legal right for restitution and the life of the moulds the supplier has a right of exclusive ownership until an agreed minimum number of pieces has been purchased and/or until expiration of a certain period of time. The supplier has to mark the moulds as outside property and to insure them at the customer’s request and expense.
- On moulds owned by the customer according to 3 and/or those made available by the customer, liability of the supplier in regard to storage and maintenance is restricted to the same diligence as executed in his own affairs. The customer has to pay the expenses for maintenance and insurance. The supplier’s obligations expire, if after completion of the order and respective notification the moulds are not picked up by the customer. In any case the supplier has a right to detain the moulds until the customer has met all his obligations resulting from the contract.
X. Allocation of Material
- If the customer allocates the materials, he is obligated to timely allocate such materials at his expense and risk and in a quantity increased by at least 5 % and in perfect condition.
- If these stipulations are not observed, the term of delivery extends accordingly. Except in cases of force majeure the customer is charged for the additional expenses incurred, also for those resulting from interruptions of production.
XI. Patent Rights
- If the supplier has to deliver according to drawings, models or samples supplied by the customer, the customer is responsible that patent rights of third parties are not violated. He has to exempt the supplier from the claims of third parties and to pay possible damages. If a third party prohibits production or delivery with reference to their patent right, the supplier has the right to stop production – without examination of legal status.
- Drawings and samples made available to the supplier without leading to an order will be returned at request; otherwise the supplier may destroy them 3 months after quotation.
- The supplier is entitled to copyrights and possible trademarks on the models, moulds, designs and drawings created by him or a third party on his behalf. Designs and proposals for construction by the supplier can only be passed on with his permission.
XII. Place of Performance and Jurisdiction
- Place of performance and jurisdiction is Garmisch-Partenkirchen also for lawsuits concerning documents, drafts or checks.
- Only German law is applicable. Application of the uniform law dated 17.07.1973 concerning the international purchase of movable goods (BGB 1.73 I S. 856) as well as the signing of international sales contracts for movable goods (BGB 1.73 I S 868) is excluded.