Sales, delivery and payment terms
Sales, delivery and payment handling (hereinafter called delivery) are effected exclusively subject to the terms of the Supplier/Supplier’s company (hereinafter called the Supplier) detailed below. The terms of the Company placing the order (hereinafter called the Company placing the order) are not binding upon the Supplier even if they have nor been expressly rejected.
2.1 The Supplier’s quotation is subject to confirmation. An order is deemed to have been accepted only if it has been confirmed by the Supplier in writing. The written order confirmation is binding as regards the scope of the supply. Ancillary agreements and modifications require the Supplier’s confirmation in writing.
2.2 The Supplier retains ownership and copyrights to quotations, images and drawings as well as other documents; they must not be copied or made accessible to third parties.
3. Prices, payment, delivery
3.1 The prices are quoted ex-works Friedrichshafen, exclusive of packaging, unless a special agreement is made. Unless already taken into account, value added tax to the level legally applicable must be added to the prices.
3.2 Special provisions are applicable to export deliveries.
3.3 The amount invoiced becomes due immediately. In the case of payment within 10 days following the date of the invoice, a discount of 2% is granted. Deduction of discount from a new invoice is not permissible for as long as older invoices due have no yet been paid.
3.4 Offsetting rights are due to the Company placing the order only if counterclaims have been ascertained in a legally binding manner, are undisputed or recognised by the Supplier. The same applies to the execution of a right of retention insofar as the counterclaim is based on the same contractual relationship.
4. Default and possible solutions
4.1 On default, the Supplier may ask for the payment of interest of 10 percent above base interest rate of the European central bank. The right to assert a higher level of damages is reserved.
4.2 If the Company placing the order does not satisfy its payment obligations, ceases payment or does not cash a cheque or bill or if the Supplier becomes aware of a major deterioration in the circumstances of a Company placing the order which jeopardise the claim to the purchase price, the entire remaining debt becomes due even insofar as bills with a later due date are involved. If the entire remaining debt is not paid immediately, the right of use of the Company placing the order of the delivery item comes to an end. The Supplier shall be entitled to either take back the item to be delivered without renouncing any claims until they are satisfied or to withdraw from the contract. All costs shall be charged to the Company placing the order in the case that the delivery item is taken subsequently. In the case of withdrawal from the contract, the Company placing the order shall be obliged to compensate the Supplier not only for the use of the delivery item but also for any reduction in value through no fault of the Supplier as well as the lost profit.
4.3 Should the Company placing the order be in default as regards the acceptance of the goods ordered even after an additional period, the Supplier may withdraw from the contract after setting a deadline and request damages amounting to 15% of the value of the order. The right is reserved to assert a claim for higher damages and/or for the Company placing the order to provide proof of a lower level of damage/loss.
5. Delivery period
5.1 The delivery period begins with a despatch of the order confirmation though not before the documents, authorisations and official approvals to be procured by the Company placing the order and before an agreed down-payment have been received.
5.2 The delivery period is complied with if the delivery item has left the plant by its end or if readiness for despatch has been notified.
5.3 The delivery period is appropriately extended in the case of interruption of operations, especially strike and lock out as well as the occurrence of unforeseen events which are outside the will of the Supplier, as for example other interruptions of operations, the goods becoming rejects, delays in the supply of essential raw and production materials and all this insofar as such obstacles have an effect on the completion or delivery of the delivery and the Supplier is not responsible for the delay. The same applies if such circumstances arise at the Suppliers of the Supplier. The Supplier is also not responsible for the circumstances indicated above if they arise during an existing delay. The Company placing the order will be informed immediately of the above impediments.
5.4 Satisfying the delivery period presupposes the contractual obligations of the Company placing the order are satisfied.
6. Passing of risk
6.1 The risk passes to the Company placing the order no later than with the dispatch of the parts to be delivered even if partial deliveries are made or the Supplier has accepted to provide other services e.g. to pay the costs of dispatch or of carriage and the costs of erection.
6.2 Should the dispatch be delayed as a result of circumstances not attributable to the Supplier, the risk passes to the Company placing the order on the day of readiness for dispatch and notification thereof.
6.3 Partial deliveries are permissible.
7. Rights arising from product defects in respect of supplies on the basis of the purchase contract
7.1 Should a defect arise for which the Supplier is responsible, the latter shall have the right to eliminate this defect by subsequent improvement or substitute delivery, this being the Supplier’s choice. Replaced parts become the Supplier’s property. Should the Supplier not be ready or able to eliminate these defects, in particular if this is delayed beyond appropriate periods for reasons attributable to the Supplier or should at least 2 attempts for subsequent improvement fail, the Company placing the order shall have the right to withdraw from the contract or to assert a reduction in payment – notwithstanding any possible claims to damages in accordance with section 9.
7.2 Insofar as the Company placing the order is able to assert rights regarding defects according its choice, it is obliged to declare, at the request of the Supplier,e within an appropriate period whether it requires supplementary performance in the case of the occurrence of the preconditions, withdraws from the contract, asserts a reduction of the purchase price and/or requires damages instead of the provision of the service.
7.3 The expenditure, in particular the costs of transportation, operating and the material costs arising for the purpose of supplementary performance shall be borne by the Supplier unless the expenditure rises because the delivery item has to be subsequently transported to a site other than the registered office of the Company placing the order and the transfer does not correspond to the intended use.
7.4 The Company placing the order shall be obliged to examine the good delivered immediately on receipt and to inform the Supplier immediately in writing of any discernible defects.
7.5 Claims for defects expire by limitation after 12 months. This does not apply insofar as the law according to section 438 paragraph 1, No. 2 of the German Civil Code (buildings and items for buildings), section 479, paragraph 1 of the German Civil Code (right of recourse) and section 634 a, paragraph 1 No 2 of the German Civil Code (construction defects) specifies longer periods and/or to contracts covered by VOB/B (German Construction Contract Procedures) as a whole.
7.6 Claims for defects cannot be asserted in respect of material defects which have arisen for the following reasons: Unsuitable or inappropriate use, faulty assembly and/or commissioning by the Company placing the order or by third parties, natural wear and tear, faulty or careless handling, unsuitable utilities, replacements materials, faulty work, chemical, electrochemical, electrical influences insofar as they are not attributable to the Supplier and in the case of only insignificant deviation from the agreed nature and insignificant negative impact on the suitability for use.
7.7 Claims to recourse by the Company placing the order in accordance with section 478 of the German Civil Code vis-à-vis the Supplier shall be applicable only in as far as the Company placing the order has not signed any agreements with the consumer going beyond the statutory claims for defects. Section 7.3 shall be applicable correspondingly.
7.8 In addition, section 9 shall be applicable regarding the Supplier’s liability. Further claims due to a defect are debarred.
8. The following shall apply to toll processing not withstanding section 7:
aa) The Company placing the order is obliged to effect acceptance of the work carried out immediately completion thereof is notified to the Company placing the order. Should the Company placing the order not effect acceptance of the work in spite of having been requested to do so, the Company placing the order must accept the work as having passed acceptance and being free from defect provided the significance of the behaviour of the Company placing the order has been pointed out at the beginning of the period set.
bb) Acceptance can be refused only as a result of major defects, up to their elimination, insubstantial defects do not justify this.
cc) A report must be drawn up regarding the acceptance of the assembly work carried out which report is to be signed by both parties. All possible defects must be listed in this report. Claims regarding recognisable defects not listed cannot be asserted subsequently.
b) Rights regard toll processing defects
aa) Claims for defects expire by limitation after 12 months. This does not apply insofar as the law according to section 634 a, paragraph 1 No 2 of the German Civil Code (construction defects) specifies longer periods and/or to contracts covered by VOB/B (German Construction Contract Procedures) as a whole.
bb) In respect of defectives of work which arise within 12 months after acceptance and which have been duly notified by the Company placing the order, the Supplier shall have the right to eliminate this defect by supplementary performance or subsequent improvement, this being the Supplier’s choice. Replaced parts become the Supplier’s property. Should the Supplier not be ready or able to eliminate these defects, in particular if this is delayed beyond appropriate periods for reasons attributable to the Supplier or should at least 2 attempts for subsequent improvement fail, the Company placing the order shall have the right to assert the statutory rights - notwithstanding any possible claims to damages in accordance with section 9 Insofar as the Company placing the order is able to assert rights regarding defects according its choice, it is obliged to declare, at the request of the Supplier, within an appropriate period which rights it is asserting.
cc) The Supplier shall be liable for defects not noted in the acceptance protocol only if the Company placing the order was able to detect them after acceptance and notified them to the Supplier in writing within 14 days after detection.
dd) The rights regarding material defects are not applicable in the case of negligible defects which do not negatively affect the value or suitability of the product processed and defects attributable to the behaviour of the Company placing the order..
9.1 If the delivery item cannot be used by the Company placing the order in accordance with the contract, this being the fault of the Supplier as a result of omitted or faulty execution of suggestions and advice provided before or after the signing of the contract or as a result of the infringement of other contractual ancillary obligations – in particular operating and maintenance instructions for the delivery item - the provisions of sections 7, 8 and 9.2 shall apply correspondingly to the exclusion of further claims by the Company placing the order.
9.2 The Supplier shall be liable for losses/damage not arisen on the delivery item itself – for whatever legal reasons – only:
a) in the case of intent,
b) in the case of gross negligence of the owner or managerial employees,
c) in the case of culpable injury/violation of life, body or health,
d) in the case of defects fraudulently kept secret or the absence of which has been guaranteed by the Supplier,
e) in the case of defects on the delivery item insofar as liability arises in accordance with the product liability law for injury or material damage to privately used items. In the case of culpable infringement of essential contractual obligations, the Supplier shall be liable also for gross negligence of non-managerial employees and in the case of slight negligence, in the latter case limited to the contractually typical, reasonably foreseeable damage.
9.3 Further claims are debarred. The Supplier shall in particular not be liable for loss of profit or production.
9.4 Insofar as the Company placing the order is entitled to damages under the present section, these expire by limitation at the end of the period of limitation applicable to claims for defects in accordance with section 7.5 and section 8.b.
10. Retention of title
The following guarantees are provided to the Supplier herewith until the complete payment of all outstanding monies (including accounting balances) and possible liabilities to which the Supplier is entitled vis-à-vis the Company placing the order now or in the future.
10.1 The delivery item remains the property of the Supplier until all liabilities of the Company placing the order resulting from the business transactions have been settled.
10.2 The Company placing the order is permitted in a manner revocable at all times to resell the goods supplied within the framework of orderly business transactions unless the receivables resulting from the resale have already been assigned to others or cannot be assigned to the Supplier for other reasons. The entitlement to resale shall cease on suspension of payments by the Company placing the order.
10.3 The amounts receivable to which the Company placing the order is entitled as a result of the resale, leasing or due to an economically similar provision are surrendered to the Supplier by the Company placing the order already at this point for the Supplier’s security; it makes no difference whether the goods subject to retention are disposed of without or combined with other items.
10.4 The Company placing the order may neither pledge nor assign the delivery item as security. In the case of seizure or confiscation or other disposal by third parties, the Company placing the order shall inform the Supplier immediately. The costs of interventions shall be borne by the Company placing the order.
10.5 For as long as retention of title is in existence, processing of the delivery item and combination with other items for the Supplier shall be effected without obliging the latter and without ownership of the Supplier ceasing.
10.6 In the case of processing, combining, mixing or admixing of the goods subject to retention of title with other goods not belonging to the Company placing the order, the Supplier shall be entitled to co-ownership of the new item in a ratio of the invoice value of the goods subject to retention of title to the remaining processed product at the time of processing, combining, mixing or admixing.
10.7 Should the Company placing the order acquire sole ownership of the new item, the contractual parties agree that the Company placing the order grants coownership of the new item to the Supplier in a ratio of the invoice value of the processed or combined, mixed or admixed goods subject to retention of title and to keep it free of charge on behalf of the Supplier.
10.8 Should the goods subject to retention of title be resold together with other goods, irrespective of whether without or after processing, combining or mixing or admixing, the assignment in advance agreed above shall be applicable only to the amount of the invoice value of the goods subject to retention of title which are resold together with the other goods.
10.9 The Company placing the order shall be entitled to collect assigned claims until revocation. However, the Company placing the order shall be obliged to pay over the amounts collected immediately to the Supplier insofar as the latter’s claims are due.
10.10 The right to effect collection terminates even without the Supplier’s express revocation if the Company placing the order does not fulfil its obligations vis-à-vis the Supplier or falls into forfeiture of assets, in particular if bankruptcy occurs or a compromise or insolvency proceedings are applied for. At the Supplier’s request, the Company placing the order is required to pass on to the Supplier the details of the claims transferred which are necessary for the collection, to provide corresponding documentation and to inform the debtor of the surrender.
10.11 The supplier shall be obliged to release the sureties to which the Supplier is entitled insofar as they exceed the value of the Supplier’s claims to be guaranteed by 20 %.
10.12 The Supplier shall have the right to request the surrender of the goods subject to retention of title if the Company placing the order fails to comply with its payment obligations in spite of a certain period set according to the calendar or a set deadline having been passed. The request for surrender simultaneously represents the withdrawal from the contract.
11. Place of performance and Venue
11.1 The Place of performance for all obligations under this contract is Friedrichshafen.
11.2 If the Company placing the order is a trader or a corporate body under public law or a separate fund under public law, the venue for all disputes arising, including actions on a bill of exchange, shall be the registered office of the supplier. However, an action can also be brought at the registered office of the Company placing the order.
12. Law applicable
The law of the Federal Republic of Germany shall be applicable to the exclusion of the international sale of goods law.
13. Binding nature of the contract
The contract shall remain binding even in the case of a legal ineffectiveness of individual sections of its conditions or individual paragraphs of the delivery and payment terms. The gap resulting from the lapse of the ineffective provision must be filled in good faith according to the meaning of the contract.