§ 1 – Scope
The following terms and conditions shall only apply towards entrepreneurs within the meaning of § 310 BGB [Civil Code].
The following terms and conditions shall apply to all of our contracts and orders, to all deliveries and other services procured by us insofar as they are not changed or excluded with our express, written consent. They shall also apply in particular if our contractual partner provides his deliveries or services at deviating conditions with our knowledge. General Business Terms of our contractual partner shall only apply if we confirm this in writing.
Our terms and conditions shall also apply to all future contracts and orders even if their text is not sent to our contractual partner against in connection with our order.
§ 2 – Offer and conclusion
If our contractual partner does not accept our orders within one week since receipt we shall no longer be bound to the order.
All of our orders, collateral agreements and assurances shall only be binding if they have been made in writing.
All agreements between us and our contractual partner are to be recorded in writing upon conclusion of the contract. All agreements – also insofar as they are carried out subsequently – shall only become effective with our written confirmation insofar as the power of attorney granted to our employees or representatives is limited.
Commercial letters of confirmations of our contractual partner shall not effect that a contract is concluded with contents which deviate from our order and our other written declarations even without our objection.
§ 3 – Written form
Insofar as a written form is envisaged in these terms and conditions it shall also be granted due to the fact that corresponding declarations are sent by fax or e-mail. A written agreement shall also be deemed as concluded by the fact that we and our contractual partner respectively submit declarations in a written form with contents which concur.
§ 4 – Prices, payment
The agreed price includes the value added tax, packaging and the deliveries free house.
We shall only pay after receipt of an invoice, which states our order and article numbers.
We shall pay within 14 days after we have received the delivery and proper invoice, with 3 % cash discount or within 30 days after receipt of the delivery and the invoice without deduction.
§ 5 – Offsetting, right of retention
We can offset against counter-claims to which we are entitled in any case under the statutory pre-requisites and exercise the right of retention.
§ 6 – Delivery and passing of risk
Risk of service and price shall only pass in any case to us when the goods and services arrive in our company or the receiving centre named by us.
§ 7 – Delivery dates, release orders
Agreed delivery dates and deadlines are binding. Decisive for their observance is the receipt of the goods in our company.
Our release orders shall become binding by no later than if our contractual partner does not object thereto within 10 days after receipt.
Our contractual partner must report delays in the delivery in writing by stating the reasons and the supposed duration as soon as he has to expect a delay in the delivery.
If the delivery is delayed by more than one month as a result of force majeure then we can cancel the contract after the unsuccessful expiry of a further final deadline set by us of at least two weeks.
§ 8 – Shipment, documents
The deliveries of our contractual partner must be made free house.
Our contractual partner undertakes to state our order and article number on all shipping documents and delivery notes.
§ 9 – Models, drawings and samples
Drawings, models, templates, samples or similar objects shall remain our property in any case and may not be handed over or otherwise made accessible to third parties without our consent. Our contractual partner must oblige his sub-suppliers accordingly.
§ 10 – Supply of spare parts
Our contractual partner guarantees a supply of spare parts for the respective parts for a period of 36 months after the respective last delivery and shall be responsible for the fact that he will supply spare parts by no later than within six weeks after our request.
§ 11 – Quality assurance, condition of goods, inspection and complaint duties,
liability for defects
Our supplier is a part of our quality management system according to ISO 9001. He undertakes to install an own quality management system according to ISO 9001 and to comply with and implement the stipulations of the standard. The supplier grants us the right to conduct an audit in his premises at all times.
Before the first delivery of products or services our contractual partner must carry out a sampling according to VDA Volume 2, assurance of the quality of deliveries, most up-to-date status, which must also comprise the ingredients in purchased parts.
Deliveries and services of our contractual partner must comply with the respective applicable statutory and trade association provisions, accident prevention and VDE-regulations as well as the respective state-of-the-art technology. Within the framework of that which is deemed reasonable for our contractual partner we can demand changes to the objects of delivery in terms of construction and execution, whereby the implications in particular with regard to additional or reduced costs as well as delivery dates and deadlines are to be reasonably regulated.
Our contractual partner assumes the obligation to only deliver those goods which he subjected to a final control with regard to their execution in line with the materials, drawing and standard.
We must only complain about obvious defects towards our contractual partner immediately which are not hard to determine without an inspection or however are acknowledged by us as well as additional or shortfall in services; incidentally § 377 HGB [Commercial Code] shall not apply.
Our contractual partner hereby now already assigns us his warranty claims (claims owing to liability for defects), to which he is entitled in connection with the production, delivery or service against third parties, suppliers or sub-contractors. The own liability of our contractual partner for defects is neither excluded, nor restricted through this assignment. However, we undertake to re-assign the corresponding claims to our contractual partner if and insofar as our contractual partner personally satisfies the obligations existing towards us owing to defects. We undertake at the request of our contractual partner to submit the declarations which may be necessary or useful to assert or safeguard the assigned claims towards third parties, suppliers or sub-contractors of our contractual partner at all times or to undertake acts of assistance which may be necessary or useful.
The statute of limitations for warranty claims against our contractual partner is 36 months beginning from the time when the risk passed. Insofar as a longer deadline is envisaged by law this longer deadline shall apply.
§ 12 – Producer liability
Our contractual partner must indemnify us from all claims for damages which third parties assert against us owing to the regulations concerning tortious acts, relating to product liability or by virtue of other regulations owing to errors or defects to the goods produced or delivered by us or our contractual partner insofar as such claims would also be substantiated against our contractual partner or are no longer substantiated merely owing to statute of limitations which has occurred in the meantime. Under these pre-requisites our contractual partner must also release us from the costs of the lawsuits which are initiated against us owing to such claims.
Insofar as the asserted claims against us are substantiated or no longer substantiated merely owing to the statute of limitations which occurred in the meantime there is a pro rata indemnification claim of us against our contractual partner, the scope and amount of which is oriented to § 254 BGB.
Our claims for indemnification, reimbursement of expenses and damages according to §§ 437 Subclause 3, 478, 634 Subclause 4 BGB remain unaffected by the afore-mentioned regulations.
Our contractual partner undertakes to maintain a product liability insurance with a sum insured of at least € 2m for personal injuries and property damages per damaging event and to prove its existence at our request.
§ 13 – Property rights, secrecy
Our contractual partner is responsible for ensuring that through the goods delivered by him no rights of third parties, in particular patents, utility models, other property rights and copyrights are infringed. He indemnifies us from claims of third parties which ensue from a possible infringement of such rights. In addition, he assumes all costs incurred to us due to the fact that third parties assert the infringement of such rights and we defend ourselves against this.
The contractual partners reciprocally undertake to treat all commercial and technical details of which they become aware from the cooperation and are not obvious as own business secrets and to maintain absolute secrets thereof towards third parties. The contractual partners may only advertise with their business relationship with the prior written consent of the respective other partner. For each case of the culpable infringement of the afore-mentioned obligations the contractual partners reciprocally promise each other a conventional penalty in the amount of € 6,000.00 in an individual case.
§ 14 – Place of performance, place of jurisdiction, applicable law
The place of performance and exclusive place of jurisdiction for deliveries, services and payments including cheque and bill of exchange actions as well as all disputes ensuing between the parties is Remscheid insofar as our contractual partner is a merchant. However we are also entitled to file action against our contractual partner at any other court of jurisdiction according to §§ 12 ff. ZPO.
The business relations between us and our contractual partner are exclusively regulated according to the law which is applicable in the Federal Republic of Germany under the exclusion of the international law on purchases in particular the UN law governing purchases and other international agreements concerning the standardisation of the law governing purchases.