Terms and Conditions
§ 1 Conclusion of Contract
1. All our deliveries to contractors as Buyers shall be based on the following general Terms and Conditions of Sale. Contractors in the sense of the Business Conditions are natural persons or legal entities or legally competent personal corporations that carry out trade or independent profession activity and with whom we enter into a business contact. Any deviating terms and conditions of Buyer which we have not specifically accepted in writing shall be without commitment on our part even if we have not specifically rejected them in writing. Our Terms and Conditions of Sale shall also apply if we effect delivery to Buyer unconditionally in the knowledge of contradicting terms and conditions of Buyer, or terms and conditions deviating from our Conditions of Sale. Our Terms and Conditions of Sale shall also be valid for future dealings with the Buyer.
2. Buyer shall not be permitted to assign any rights under the present contract.
3. Our offers shall be subject to change without notice. Any ancillary agreements, special conditions, modifications or amendments of the present contract must be made in writing in order to be valid. Any special agreements shall only apply to the specific case in question and not to earlier or later transactions conducted with the Buyer.
4. The Buyer shall be committed to orders placed with us for two weeks from the date of receipt by us. Any order placed on us shall only be binding with our written acceptance, notification of our willingness to supply or actual supply. Buyer shall waive receipt of the acceptance declaration pursuant to § 151 German Civil Code (BGB).
5. Our prices shall include the respectively valid Value Added Tax; starting from Ölbronn-Dürrn. They shall also include shipping, installation and packaging costs. If no fixed prices are settled in the contract, the prices valid as of the day of delivery shall be charged. Prices shall be valid for four months from the date of signature of the purchase contract. Prices applicable on the date of delivery shall apply if longer delivery periods have been agreed.
6. We shall retain all proprietary and copyright utilisation rights in costs quotations, drawings, samples and other documents without restriction; these may not be made available to any third parties. Any drawings or other documents forming part of an offer shall be returned to us immediately on request if no order is placed with us. The Buyer’s rights of retainer thereupon shall be excluded.
7. Confirmed prices are valid only if quantities are received for which these prices have been confirmed. If the ordered volume should not be met, we shall be entitled, following our discretion, to accordingly adjust the prices.
§ 2 Delivery
1. Delivery periods and deadlines which can be subject to binding or non-binding agreements must be confirmed in writing in order to be valid. We reserve the right to make delivery deadlines subject to proper and prompt delivery on the part of our suppliers.
2. Four weeks after us failing to meet a non-binding delivery period or a non-binding delivery deadline the Buyer may demand us in writing to execute the delivery within an appropriate period of time. Such reminder notice shall constitute delay on our part. If, in the event that we have made default, the Buyer has granted us an appropriate additional time for fulfilment and this additional time has passed without effect, the Buyer is entitled to withdraw from the contract. The Buyer shall be entitled to claim for damages due to non-fulfilment amounting to the foreseeable damage only in case that the delay was caused by intention or gross negligence.
3. If the buyer defaults in acceptance of supplies or if he fails to cooperate in any other way, we shall be entitled to demand compensation for any damage or additional costs incurred. In this event, the risk of fortuitous loss or fortuitous deterioration of the purchased goods shall pass to Buyer on the date on which he defaults in acceptance.
4. The commencement of the delivery period specified by us shall be subject to the clarification of all technical details. Notwithstanding our rights in connection with the default of the Buyer a stipulated delivery deadline shall be prolonged by a period of time during which the Buyer is in delay with his obligations in terms of this contract. Moreover, the delivery periods shall be prolonged by periods of hindrances caused by force majeure.
§ 3 Liability for Technical Defects
1. At first, defects of our products shall be covered by the guarantee to additional correction or supplementary delivery according to our discretion. If this additional fulfilment comes short, the Buyer is entitled, generally at his discretion, to demand a reduction of the price or to withdraw from the contract. However, if the contract is not fulfilled only in a minor way, especially in the event of only minor deficiencies, the Buyer shall not be entitled to withdraw from it.
2. The liability for defects shall not cover natural wear, damages caused after the transfer of risks due to faulty or negligent treatment, excess load, inappropriate operation means or operation area and such that arise due to chemical, electrochemical or electric influences; unless they constitute a precondition for use according to the contract. The aforesaid shall be applicable for alterations and restoration work on the delivered products carried out inappropriately by the Customer or third parties. Deviations in colour, shape, appearance or consistency that are minor, due to production or that arise naturally are excluded from liability for technical defects.
3. If, following failed rectification due to a legal or technical defect, the Buyer chooses to withdraw from the contract, he shall not be entitled to any further claim for damages due to the defect. If, following failed rectification, the Buyer chooses compensation for damage, the goods shall remain with the Buyer, if this is reasonable for him. Then, the compensation for damage shall be limited to the difference between the purchase price and the value of the faulty product. This shall not apply if the breach of the contract has been cunningly caused by us.
4. Contractors have to inform us in writing of apparent defects within a period of two weeks after the receipt of goods; if they fail to do so, the claim under the guarantee may not be asserted. To keep the period it is sufficient to post the notice in time. The entire burden of evidence for all the preconditions of claim, including above all evidence for the defect itself, for the moment of detection of the defect and for the timely manner of applying the claim shall be with the Buyer.
5. For contractors the guarantee period shall amount to one year as of the dispatch of goods. This shall not apply, if the Buyer has failed to inform us on the defect in time (item 4 of this clause). As regards used goods, the Buyer shall have to bear the burden of evidence for the defectiveness of the product.
6. The quality of the goods shall generally be determined only by the product description of the manufacturer. In addition, public announcements, lavish or advertising statements of the producer do not constitute any description of the quality of the goods according to the contract.
7. We shall not grant the Buyer any guarantees in legal terms. Guarantees of the manufacturers remain unaffected by this clause.
§ 4 Total Liability
As regards light negligent breaches of obligation, liability shall be limited to the foreseeable, immediate average damage that corresponds to the type of the goods and is typical for the given type of contract. This shall also be applicable in the event of light negligent breaches of obligation of our accomplices. We shall not be liable to contractors for light negligent breaches of minor contractual obligations. The aforesaid liability limitations do not apply to claims of the Buyer resulting from product liability. Moreover, the liability limitations shall not apply in the case of body and health injuries that can be attributed to us.
§ 5 Payment
1. According to the agreement made, payment for deliveries is due, if not specified otherwise, no later than 30 days from the date of invoice. Payment shall be executed in such a way that we have the amount at our disposal on the due date. Any bill and discounting charges shall be borne by the Buyer. Exchange and discount charges shall be borne by the Buyer. They are immediately due and payable. For cash discount deduction a special written agreement is necessary. Payment shall be executed in such a way that we have the amount at our disposal on the due date. Any bill and discounting charges shall be borne by the Buyer.
2. If the Buyer falls into arrears with the payment of a receivable in connection with the business relations, we shall be entitled to require interest on overdue payment at least to the amount specified by the respective laws. Should we be able to prove higher damage caused by delay in payment, we shall be entitled to enforcement. However, the Buyer shall be entitled to prove to us that we have suffered no or a substantially lower damage due to the delay in payment. If the Buyer falls into arrears, we shall incidentally be entitled to make due such receivables that have not yet been due.
3. The Buyer shall only be entitled to set off his counterclaims, if these are valid, unquestionable or approved by us. He shall be further authorised to exercise the right of retainer inasmuch that his counterclaim is based on the same contractual relation. As far as the counterclaim is questionable, the Buyer shall not be entitled to the right of retainer.
4. If the Buyer falls into arrears or fails to discharge a due bill of exchange, we shall be entitled to take the goods back, or, if need be, to enter the Buyer’s premises and take away the goods. Further, we can prohibit the resale and the transportation of the delivered goods. The removal of the goods does not constitute a withdrawal from the contract.
5. If, subsequently, we will learn that circumstances have arisen that result in a material deterioration of property conditions and if our payment claim would be endangered hereby, we shall be entitled to make due our receivables in full and regardless of the due dates of eventually received bills of exchange.
6. In the cases as detailed under the items 4 and 5 we can revoke the direct debit instruction (VI/4) and require advance payment for outstanding deliveries.
7. The Buyer can prevent the legal consequences as detailed under the items 4 to 6 by sufficient provision of a warranty deposit amounting to our endangered payment claim.
8. The legal provisions on the delay in payment shall remain unaffected. If the Buyer fails to comply with his payment or acceptance obligations, we shall be entitled to demand compensation for non-fulfilment of contract if the statutory prerequisites are met. In such cases, we shall be entitled to demand 30 % of the agreed payment as compensation, whereby proof of the damage incurred is not required. The Buyer shall be entitled to prove that no damage occurred or it was lower than the presented lump-sum.
§ 6 Reservation of Ownership
1. All delivered goods remain our property (purchased items) until all payment claims are met, especially also the respective remainder receivables that we are entitled to towards the Buyer in respect of the business relations with him. This shall also be applicable for future and conditional receivables, and also if payments are executed to especially marked receivables. If the purchased goods are processed with other items that do not belong to us, we acquire co-ownership on the new goods in a ratio of the purchased goods value to the other processed goods at the time of processing. Moreover, the same shall apply for the goods that were created by processing, as does for the purchased items delivered under reservation.
2. The Buyer shall only be entitled to resell the goods in the normal course of business and on his normal conditions, as long as he has not fallen into arrears, provided that the receivables from resale according to items 3 to 5 are transferred to us. He shall not be entitled to dispose of the purchased items in any other way.
3. The Buyer’s receivables from resale of purchased items is already transferred to us. This shall be considered a security in the same way as the purchased item. If the purchased item is processed with other goods not belonging to us, we shall be transferred the receivables from resale in the ratio to the invoice value of the other goods sold. When selling goods on which we have co-ownership shares according to no. 2, we shall acquire the part that corresponds to our co-ownership share.
4. The Buyer is entitled to collect claims from resale, unless we revoke the direct debit instruction as specified in the cases detailed in sec. V/6. If we demand so, he is obliged to immediately inform his customers of the transfer to us unless we do so ourselves and to provide us with the necessary information and materials for the collection. The Buyer shall not be entitled to any other transfer of receivables in any way. This shall also be applicable for factoring that the Buyer is also prohibited to execute due to our direct debit instruction.
5. The Buyer is obliged to inform us immediately on attachment or other restraints on the part of third parties.
6. On request of the Buyer, we shall be obliged to release securities to which we are entitled to the extent that the value of such securities exceeds the claims to be secured by more than 20%; the choice of the securities to be released shall be at our discretion.
§ 7 Shipment, Passage of Risk, Packaging, Part Delivery
1. We determine the means and way of shipping as well as the freight forwarder and shipper.
2. Goods that have been declared ready for shipment must be called off immediately, otherwise we shall be entitled, after submitting a remainder, at our discretion to ship the goods at the expense and risk of the Buyer or to store them and charge for them immediately.
3. If, not due to our fault, transport will be impossible in the envisaged way or to the envisaged location at the envisaged time, we shall be entitled to ship the goods on a different way or to another location; the arising extra cost shall be borne by the Buyer. The Buyer will have the opportunity to make a statement beforehand.
4. As soon as the goods have been handed over to a freight forwarder or shipper, at the latest, however, as soon as they leave the warehouse or the supplier’s premises, the risk – also that of seizure – in the case of all business transactions – also franco and free domicile deliveries – passes to the Buyer. We only provide for insurances after being thus directed by the Buyer as well as at his expense.
5. We may make part deliveries in a practicable volume resulting in our entitlement to demand a part payment in connection with the dispatched goods. In such cases, the Buyer shall be obliged to remit settlement proportionate to such part deliveries in accordance with the terms of payment specified under (V) above. Supplies of higher or lower volumes in comparison with the settled volume, as is usual in the respective branch, are permissible.
§ 8 Jurisdiction – Place of Fulfilment
If the Buyer is a business person entered in the commercial register, jurisdiction shall be Ölbronn-Dürrn; however, we are entitled to sue the Buyer even at the court in his domicile. If not otherwise stated in the order confirmation, the place of fulfilment shall be Ölbronn-Dürrn. In the event that, after completion of the contract, the Buyer relocates his domicile or usual place of residence away from the field of action of the Federal Republic of Germany, Ölbronn-Dürrn shall be the jurisdiction. This also applies if the place of residence of the Buyer is unknown when legal action is brought. The law of the Federal Republic of Germany shall apply. Application of the Hague Convention relating to a uniform law on the international sale of goods (EKG and EKAG) shall be excluded.
§ 1 General matters – scope of application
(1) Our Terms and Conditions of Purchase shall apply exclusively; terms and conditions of the supplier in contradiction of these, or which deviate from our terms and conditions of purchase, will not be recognized, except in cases where we have given express consent in writing to their validity.
Our Terms and Conditions of Purchase shall also apply in cases where we, being aware of contradictory or deviating terms and conditions of the supplier, accept the delivery of the supplier without express reservation.
We refuse to acknowledge, in particular, any reservation in respect of property rights included in terms and conditions of business which others seek to apply in relation to us.
(2) Our Terms and Conditions of Purchase shall apply only in relation to entrepreneurs as understood in the sense of § 310 section 4 of the BGB [German Civil Code].
§ 2 Offer and offer documents
(1) The supplier shall be bound by his offer to us for the duration of at least 8 weeks.
This period shall be calculated from the time of the receipt of the offer by us.
Additions and changes to our contracts require to be in written form in order to be effective.
If the supplier declines to accept an order on our part which has been placed without any preceding offer on the part of the supplier, we must be notified of this within the term of one week, otherwise our order shall be considered as having been accepted.
(2) We hereby reserve all proprietorial rights and copyrights in respect of illustrations, technical drawings, calculations and other documents; these may not be made available to third parties without our express written consent.
They are to be used exclusively for manufacturing purposes, based on our order; after completion of the order they are to be returned to us unrequested.
They are also to be treated as confidential in relation to third parties (to this extent the provision of § 6 section (3) below has supplementary application).
(3) The assignment of rights derived from the contract concluded by us with the supplier is not permitted.
§ 3 Prices – terms and conditions of payment
(1) All prices agreed with us are to be understood as fixed prices for the duration of the given agreement.
The agreed prices include all freight, transport, packaging and insurance costs that fall due.
Transport insurance is the responsibility of the supplier up to the point where the goods are received by us.
The costs for disposal of the packaging will be charged to the supplier at the original cost.
(2) Statutory VAT is included in the price.
(3) We can only process invoices when these – in keeping with the specifications in our order – state the order number given in the latter; the supplier is responsible for all consequences resulting from the failure to observe this obligation, unless he can show that he cannot be held responsible.
(4) Unless terms and conditions of payment to a different effect have been determined in a separate agreement, it shall be taken as agreed that the invoices of the supplier shall fall due for payment at earliest 30 days after receipt of the invoice by us (based on the receipt date stamp).
In case of payment within two weeks from receipt of the invoice we shall be entitled, in view of the punctuality of payment, to deduct a 3% discount from the amount.
We are decade payers.
If at the time of receipt of the invoice the goods have not been delivered or have not been delivered in accordance with the terms of the contract, the above payment deadline shall start only with the receipt of the goods and/or creation of the condition that complies with the terms of the contract.
(5) Payments on our part shall be made in all cases subject to reservation in respect of scrutiny of the invoice.
Payments shall be made, at our discretion, either by sending a check in settlement or by bank draft to an account specified in the supplier’s business correspondence.
The definitive factor for punctuality of payment is the postmark on dispatch.
The risk of chance losses in connection with means of payment shall be borne by the recipient.
(6) In so far as we have legitimate claims of our own, based on the business relationship with the supplier, we shall have a right of retention based on these claims, as well as the option of offsetting in settlement of accounts.
§ 4 Delivery times
(1) In the case of deliveries, excessive quantity, insufficient quantity or partial deliveries will be accepted as meeting the terms of the contract only subject to written agreement.
Except in case of agreement to the contrary, all consignments are to be delivered carriage free to the address specified by us.
The supplier shall be obliged to state our order number exactly on all dispatch papers and delivery documents; if he neglects to do this, we may not be held responsible for delays in the processing.
(2) With all deliveries, the risk only passes to us when the goods are handed over to us.
(3) If the supplier becomes aware that deliveries are likely to be delayed, on becoming aware of the fact he shall be obliged to let us know of this immediately by fax communication; dates that may have been agreed, in particular fixed dates, remain unaffected thereby.
If he neglects to notify us promptly or only notifies us at a later date, he shall be obliged – irrespective of any other claims that may be asserted – to indemnify us for the damages resulting from the failure to notify us punctually.
(4) If fixed dates as understood by §§ 361 and 376 of the BGB [German Civil Code] have been agreed, on failure to observe the deadline we shall be entitled at our discretion either to withdraw from the delivery agreement in question, or else, while maintaining the claim to fulfillment, to call for payment of a contractual penalty in the amount of 5% of the value of the goods delivered unpunctually on the given occasion for each week of the delay, up to a maximum limit of 20% of the value of the goods.
The right to assert further claims for damages caused by the delay is not excluded.
§ 5 Investigation of defects – liability for defects
(1) We shall be obliged to inspect the goods within an appropriate deadline for any deviations in respect of quality or quantity. A complaint is considered to have been made in good time if received by the supplier within a term of 5 working days, counted from the time of goods delivery, or in the case of concealed defects from the time of discovery.
(2) We shall be entitled to the statutory claims for defects without curtailment; in each case we shall be entitled, at our discretion, either to insist on the supplier’s rectifying the defect or to call for the delivery of replacement articles.
We expressly reserve all rights of indemnification, especially the right to indemnification in place of the service owed.
(3) We shall be entitled ourselves to carry out rectification of the defect, at the cost of the supplier, when delay would be hazardous or any particular need of haste exists.
(4) The technical specifications associated with the individual articles are an integral component of the delivery agreement in the given case, and shall also apply to supplementary or subsequent orders. When goods are delivered to a pattern, they must comply with the specifications, properties and standards of the pattern in question.
(5) The statutory term of limitation for claims based on defects shall be 36 months, computed from the time of the transfer of risk.
§ 6 Services by third parties, protection of confidence
(1) On our request the supplier shall be obliged to show evidence of the qualifications of his upstream suppliers as well, and allow us to carry out an appraisal of the upstream supplier in question.
We will avail ourselves of this possibility only on objective grounds, in particular with a view to ensuring at an early stage that the delivery shall comply with the terms of the contract.
(2) The supplier shall otherwise be obliged to provide his services directly, and requires our previous consent if subcontractors are to be used.
Changes in the object of delivery, its packaging, composition, technology etc., which amount to deviations from the basic standards agreed when the contract was concluded shall only be permissible subject to our prior consent.
(3) Technical drawings, designs, patterns, descriptions and notes made available by us or created on our commission shall remain our property, and must be treated accordingly and kept safe in accordance with our instructions.
They must be handed over and returned to us immediately on termination of the order; any right of retention on the part of the supplier in this respect is hereby excluded.
The supplier shall not be entitled to use these documents for his own purposes or for the purposes of third parties.
Even after orders have been completed, they may not be made accessible to third parties or used for third parties.
Products which have been manufactured based on these documents, with our tools or with replicated tools based on the documents, may not either be used by the supplier for his own operations without our consent or offered for sale or supplied to third parties.
For each violation of this prohibition a contractual penalty in the amount of EUR 10,000 shall apply; the assertion of more extensive damages is not thereby excluded.
§ 7 Product liability – exemption – third party liability insurance
(1) In so far as the supplier is responsible for damage to the product, he shall be obliged to exempt us from the indemnification claims of third parties, immediately on being requested, to the extent that the originating cause is situated in an area subject to his sovereignty or organization and he is himself liable in relation to third parties.
(2) In connection with his liability for damages based on section (1) above, the supplier shall likewise be obliged to indemnify us in accordance with §§ 683, 670, 830, 840 and 426 of the BGB [German Civil Code] for any expenses arising from or in connection with a product recall campaign which we are obliged to institute.
In so far as it shall be feasible and may reasonably be expected, we will notify the supplier of the content and scope of the recall measures to be carried out and give him the opportunity of stating his position.
Other statutory claims shall remain unaffected thereby.
(3) The supplier hereby undertakes to take out product liability insurance with cover amounting to a one-off sum of 10 million euros per case of damage to persons or property; if we are entitled to more extensive indemnification claims, these shall remain unaffected thereby.
§ 8 Rights of protection
(1) The supplier hereby guarantees that no rights of third parties within the Federal Republic of Germany shall be violated.
(2) If claims shall be brought against us by a third party in this connection, the supplier shall be obliged immediately on written request to exempt us from these claims; we shall not be entitled, without the consent of the supplier, to enter into any agreements with the third party, in particular to come to a composition.
(3) The obligation of release incumbent on the supplier shall relate to all expenses which we are obliged to incur as a result of or in connection with claims brought against us by a third party.
(4) The statutory term of limitation shall amount to ten years, computed from the time of conclusion of the contract.
§ 9 Reservation of property rights – supply of parts – tools – confidentiality
(1) In so far as parts shall be supplied by us for the supplier, we reserve the property rights in respect of these.
Any processing or adaptation of the parts by the supplier shall be undertaken on our behalf.
If our goods subject to the above reservation of property rights shall be processed in conjunction with other articles not belonging to us, we shall acquire co-ownership rights in respect of the new article created in the ratio of the value of our goods (based on the purchase price with the addition of VAT) in relation to that of the other processed articles at the time of processing.
(2) If the article supplied by us shall be inseparably conjoined with other objects not belonging to us, we shall acquire co-ownership rights in respect of the new article created in the ratio of the value of the goods subject to reservation (based on the purchase price with the addition of VAT) in relation to other components joined with it at the time of the conjunction.
If the conjunction has been effected in such a way that the article of the supplier is to be seen as the principal component, it shall be considered as agreed that the supplier transfers to us co-ownership rights on a pro rata basis; the supplier shall hold the sole ownership or co-ownership rights on our behalf.
(3) Tools which are charged to us (even on a pro rata basis) shall be produced for us in accordance with § 950 of the BGB [German Civil Code] and on production shall become our property.
The supplier shall be obliged to use our tools exclusively for the production of the goods ordered by us.
The supplier shall be obliged to insure the tools belonging to us, at the value as new and at his own cost, against damage by fire, water and theft.
At the same time the supplier hereby assigns to us as of now all indemnification claims based on this insurance coverage, and we hereby accept the assignment.
The supplier shall be obliged to carry out any servicing and inspection work on our tools that may be required, at his own cost and in good time.
We are to be notified immediately of any cases of malfunction; if the supplier neglects to inform us through his own fault, our indemnification claims shall remain unaffected thereby.
Tools which are charged to us (even on a pro rata basis) shall be produced for us in accordance with § 950 of the BGB [German Civil Code] and on production shall become our property.
(4) If the security interest to which we are entitled in accordance with sections (1) and/or (2) above shall exceed the purchase price of all our goods subject to reservation and not yet paid for by more than 10%, we shall be obliged, on request of the suppliers, to release the security interests at our choice.
§ 10 Processing work / improvements under contract
(1) All processing contracts entered into on our instructions shall be additionally subject to the following general terms and conditions.
General terms and conditions of the processing contractor in deviation from these which have not been expressly acknowledged by us in writing shall not be binding on us, even when we have not explicitly declared our objection thereto.
(2) The processing of the parts shall be subject to our delivery specifications, which include an exact listing of quality criteria.
These delivery specifications constitute an integral component of the contract.
The processing contractor shall be responsible for ensuring that these quality criteria are adhered to in the given case.
If the processing contractor shall find himself unable to adhere to these quality criteria, he must notify the ordering party to this effect immediately on receipt of the parts that are to be processed.
(3) The processing contractor shall be obliged to examine the materials delivered in order to ascertain whether they fulfill the necessary conditions for compliance with the contractually agreed quality criteria.
If this is not the case, the ordering party shall be promptly informed to this effect in writing by the processing contractor.
If no immediate mutual information to this effect shall be conveyed by the processing contractor, the materials shall be considered as being in compliance with the terms of the contract.
(4) The delivery times stated in the orders shall be binding on the processing contractor, except in cases where immediate objection to them has been stated in writing.
If, in connection with several partial quantities to be supplied under an order, the delivery of the materials by the ordering party shall be delayed, the contractually agreed processing deadline shall be extended accordingly.
This has no implications for the binding nature of the agreed processing time.
(5) If the performance of the processing contractor does not answer to the quality criteria agreed in compliance with section 2 above and if the processing contractor fails to carry out remedial work on the qualitatively inadequate parts within one week, the ordering party shall be entitled to commission a third party to rectify the defect and to call for advance payment for the work by the processing contractor at the standard industrial rates.
The right to assert further indemnification claims remains unaffected thereby.
(6) If the ordering party has justifiable concerns in relation to compliance with the contractually agreed quality criteria, the processing contractor shall be obliged to provide the ordering party, at his own cost, with an expert report on adherence to the said quality criteria.
If he shall fail to observe this obligation, he shall be obliged to indemnify the ordering party for the costs of an expert report commissioned by the latter.
(7) Claims based on objective defects resulting from failure to adhere to quality standards shall lapse in 36 months from the delivery of the processed parts to the customer of the ordering party.
(8) No rights of retention based on claims under defect or offsetting of such claims against those of the processing party shall be admitted, except in cases where these are uncontested or have been upheld at law.
No assignment of claims based on this contract shall be permissible without the express consent of the ordering party.
§ 11 Choice of law, court of law
(1) All our business relations with the supplier shall be subject to the law of the Federal Republic of Germany; the application of the UN sales law is hereby excluded.
(2) In so far as the supplier is a businessperson, the responsible court of law shall be that of our head office; we shall however also be entitled to bring suit against the supplier at the court of his own place of abode.
(3) In so far as nothing to the contrary has been stated in the order, our head office shall be the place of fulfillment.
§ 1 Conclusion of contract
After receiving the appliances and the repair order from the customer the contractor shall inspect the devices regarding working order and feasibility of repair shall repair the faults to be stated by the customer in accordance with clause 5 (non-feasible repairs) in the form of an individual performance. If an undefended written acknowledgement of order is available then this shall be decisive as to the content of the contract as well as the extent of the repairs. Ancillary agreements and amendments of the contract require a written confirmation by the customer.
§ 2 Prices and payment
The calculation of the repair price shall include a separate listing of prices for special performances or any parts and materials used, as well as the prices for the work performed, travel and transport costs. If repairs based on a binding estimate are carried out, a reference to the estimate shall suffice; only changes to the extent of the performance are to be listed separately. Any queries regarding the invoice must be submitted in writing within 4 weeks after receipt at the latest. Payments shall be made at once after the invoice has been received without deducting cash discount. Withholding of payments or offsetting due to possible counterclaims by the customer shall not be permitted.
§ 3 Particulars of cost, estimates
If expressly required, the customer shall be given an estimate of the anticipated repair costs per repair offer at the point of conclusion, or else the contractor can set cost limits. Should it prove impossible to carry out the repairs at the quoted cost, or if the contractor considers additional work necessary whilst repairs are in progress, it shall be necessary to obtain the consent of the customer if such repairs exceed the cost by more than 15 percent. If prior to the repairs an estimate stating binding prices is required, this must be pointed out specifically by the customer and asked for in writing. A fee shall be charged for this kind of estimate and it shall only be binding if given in writing and described as binding. The customer shall not be charged for any work carried out in order to give this estimate as long as it can be put to use during the repairs.
§ 4 Warranty
The inspections of warranties and the fulfilment of warranty obligations regarding the repair item will, without exception, take place at the premises of the contractor. For this purpose the customer shall send the repair item at his own expense to the contractor. If the repair item proves to be a warranty case, the contractor shall be obliged to repair it, or to provide a replacement of the same value, to the customer. After the customer has accepted the repaired item, the contractor shall only be liable for the work carried out by him. There is a 1 year warranty from the acceptance of the repairs by the customer. In the case of a warranty the contractor is entitled to attempt a second fault removal if the first attempt of removing the fault proved to be unsuccessful. The customer on the other hand is obliged to report any discovered faults immediately in writing to the contractor. He shall forfeit the right to lodge a complaint if he does not do so within a week after discovering the fault. The time limit for the warranty shall be extended by the time it took to repair the faulty item. The contractor shall not be liable for faults that are of no consequence to the interests of the customer, or if caused by circumstances for which the customer is responsible. This refers in particular to parts provided by the customer. Improper modification or work carried out by the customer or a third party without seeking prior consent from the contractor shall result in the loss of warranty provided by the contractor for any resulting damage. If the contractor neglects to remove faults within a period of grace granted to him, the customer shall be entitled to a reduction in price. The right to a reduction in price shall also be granted in cases in which repeated attempts to remove faults have failed. However, the customer shall only be entitled to withdraw from the contract, after giving due notice, if the repairs turn out to be of no interest to the customer, despite the reduction in price.
§ 5 Non-feasible repairs
Services rendered in connection with an estimate as well as any other additional data supported efforts during the inspection of the devices (fault searching time equals working hours) will be billed to the customer if the contractor is of the opinion that repairs cannot be carried out, especially if:
– the claimed fault did not show up during inspection;
– repairs would no longer be economical; – spare cannot be obtained;
– the customer culpably failed to meet the agreed deadline or his duty of participation despite the setting of a deadline;
– the contract was terminated whilst repairs were in progress;
The repair item must only be restored to its old state if the customer expresses a wish to have this done at his cost, unless the work carried out was unnecessary. Irreparable devices will be returned at the customer’s expenses. However, the customer shall be entitled to ask the contractor to dispose of the irreparable items at the customer’s expense.
§ 6 Transport and insurance
Unless agreed otherwise in writing, shipping of the repair item to and from the repair firm – including possible packaging and loading – shall be carried out at the customer’s expense. The customer is free to pick up the repair item from the contractor after repairs are finished. The customer is responsible for any risks involved during transport. If written instructions by the customer are received, the item will be insured at his cost covering the transport to and from the destination against insurable transport hazards (e. g. theft, breakage, fire etc.). There will be no insurance cover during the period of repair at the premises of the contractor. It is up to the customer to ensure that current insurances for the repair item are in place. Insurance protection against such dangers will only be arranged if specifically requested by the customer. The contractor shall be entitled to charge storage fees for storage on site if delays are caused by the customer (delayed performance). The contractor can also store the repair item at a different place according to his best judgement. Cost and danger involved in storage shall be at the customer’s risk.
§ 7 Time limit for repairs
Time limits and times set for repairs are based on estimates and are therefore nonbinding. The customer cannot receive binding time limits for repairs which must be given in writing until the extent of the work to be carried out has been established in detail. The deadline shall be deemed met when the repair item is ready for collection or sending back to the customer. Additional and extended orders received at a later date will extend the time limit for repairs accordingly. Delays caused by industrial action, especially strike and lockouts as well as circumstances outside the control of the contractor will, as long as such obstacles have a provable, great influence on the progress of the repairs, result in an appropriate extension of the time limit; this shall also apply if such circumstances arise after the contractor had started to fall behind. Should the delay of the contractor cause provable damage to the customer, the latter shall be entitled, to the exclusion of further claims, to claim compensation for the delay. This shall amount to 5 percent per completed week of delay, but shall not exceed a total of 50% of the repair costs for the part that cannot be used at the expected time due to the delay and that is to be repaired by the contractor If the customer grants the contractor an appropriate period of grace, which must include a threat of performance rejection, and the new deadline is not met, the customer shall be entitled to pull out of the contract. Regardless of clause 10, the customer shall not be entitled to further claims.
§ 8 Acceptance inspection
The customer shall be obliged to inspect the repair work carried out on the repair item as soon as it is available to him. If the work carried out does is not conformable to the contract the contractor shall be obliged to remove the fault. This does not apply if the fault is of minor importance to the interests of the customer, or is the result of circumstances caused by the customer. In the case of a substantial fault the customer shall not be entitled to refuse acceptance if the contractor expressly accepts his duty to remove the fault. If the acceptance inspection is delayed due to no fault of the contractor, the repair item shall be deemed accepted after a period of two weeks from the announcement of completion of repairs. Once accepted, the contractor shall no longer be liable for discernible faults unless the customer has reserved the right to claim with respect to a specific fault.
§ 9 Retention of ownership, extended right of lien
The customer shall reserve the right to ownership to all accessories, spare and exchange parts used until the receipt of all invoices for payment arising from the repair contract. Additional agreements about transfer of ownership may be made. The contractor shall have a right of lien to the customer’s item in his possession due to the debt outstanding from the repair contract. The right of lien can also be asserted with respect to debt outstanding from work, deliveries and other performances carried out at an earlier time.
§ 10 Other contractor‘s liabilities, exclusion of liability
Should any parts of the repair item be damaged by the contractor, the contractor shall have the right to decide whether he wants to repair them at his own cost or to deliver new ones. The obligation to pay damage is limited to the amount of the agreed repair costs. Otherwise the subsequent clause shall apply accordingly. The customer shall, apart from the entitlements stated in these term and conditions, not be entitled to further claims against the contractor for compensation – particularly no claims for damages and not resulting from non-contractual actions either – or other rights due to possible disadvantages involving the repairs. In this connection it shall be immaterial which legal justification he refers to. This exclusion of liability shall not apply to acts of culpable negligence committed by the contractor, his employees or a person employed in performing an obligation, as well as to the violation of essential duties set out in the contract. In cases of culpable violations – with the exception of acts of culpable negligence or intentional tort – of essential contractual duties the contractor shall only be liable for damages typical for this kind of contract that can reasonably be expected. In addition to this, exclusion of liability shall not apply in cases in which there is a liability for faulty repairs in connection with personal or physical damage in accordance with the product liability law. It shall also not apply to missing characteristics that were warranted in writing if the warranty had the specific purpose to guard the customer against damage that did not occur to the item itself.
§ 11 Other terms, place of jurisdiction
So far as the purchaser is a business man or a legal person under public law or a public enterprise the contractor’s place of residence shall be place of jurisdiction for any disputes arising directly or indirectly from the contractual relationship. All duties arising from the contractual relationship are to be performed at the premises of the contractor. German law shall always apply, in particular for international deliveries.