GENERAL TERMS AND CONDITIONS
§1 Scope of application
These general terms and conditions apply to all orders that are granted to the Engineering Firm. Conflicting general terms and conditions of the contracting entity will not become part of the contract even if they are contained in the order confirmation. These conditions also apply for permanent business relationships and future business, even if they were not expressly recorded in the contract. Should individual provisions be invalid, the remaining conditions shall not be affected thereby.
§2 contractual relationship
1. The engineering firm undertakes, in accordance with the descriptions contained in the order confirmation, to perform the necessary constructional activities. Each order represents a work contract pursuant to § 631et seq. BGB (German Civil Code). The completed constructional design is a copyrighted work. 2. The scope of services and thus the fee will include: – the detailed discussion of the issue situation with the contracting entity – development of a constructional plan or a design presentation on CD or other data carrier – the cost of construction data carriers (CDs, tapes, costs for data transfer or similar) – the transfer of usage rights to the contracting entity; the copyright for a further use in other cases, however, remains with the respective Engineering Firm. Not included in the price are: – shipping to locations outside the territory of the Federal Republic of Germany – the costs model products which might be manufactured – general expenses and costs for travel to meetings beyond the headquarters of the Engineering Firm
1. The fee settlement is based on the invoicing stated in the offer. If no fixed price is agreed, the prices are subject to change, and the costs shall be based on the VDI-Engineers recommendations. 2. Unless other arrangements are made (e.g. monthly billing) the remuneration shall be 1/3 of the total price upon order confirmation is, 1/3 when the construction drawings or design representations are presented, and 1/3 upon completion of the constructional work. 3. Cheques and bills are only accepted as conditional payment. Associated costs shall be borne by the contracting entity. In the event of default, an interest rate of 2% above the respective base rate shall be calculated, unless the contractor proves a higher default damages. It shall be at the discretion of the contracting entity to prove a lower damage. 4. Payment due date is 14 days after invoicing.
§ 4 Usage rights
Even after the construction drawings or design data are handed over, the results of the engineering firm’s work may only be used for the agreed usage designation and the order-related scope. With the full payment of the total fee, the contracting entity shall acquire the usage rights to the extent described above. All further rights of use remain exclusively with the respective Engineering Firm. A transfer of the design rights and plans to third parties is only permitted with the consent of the Engineering Firm.
§ 5 Requirements profile
The contracting entity shall provide the contractor with a requirement profile for the design to be created. This requirement profile must contain the exact application and environment data. The Engineering Firm shall not be obligated to perform an assessment, whether the design can actually be utilized with the specified environment, application data or other data provided by the contracting entity, in the manner stated in the order profile. The Engineering Firm shall not be liable in any case for errors in the data supplied by the contracting entity.
§6 Delivery dates
Delivery dates will be individually agreed-upon in the contract. If the Engineering Firm is unable to meet this deadline, it is obliged to inform the contracting entity immediately after gaining knowledge of the deadline exceedance.
§7 Warranty, limitation of liability and inspection obligation
1. The contracting entity is obliged to inspect the designs provided by the Engineering Firm within 4 weeks after submission, and conduct an examination for possible deviations from the order volume and defects. Complaints must be submitted to the Engineering Firm in writing within this inspection period. After this period has lapsed, the design shall be deemed as accepted.
2. The Engineering Firm is only liable for the dimensions specified in the design drawings or on data carriers. It is not liable for the accuracy of the drawings.
3. In case of defects which are notified in a timely manner, the Engineering Firm shall be obliged to provide an immediate remedy at its own expense. The rectification must be performed within a reasonable period to be specified by contracting entity. If the rectification of defects fails twice, the contracting entity shall be entitled to withdraw from the contract and/or demand compensation. The compensation owed by the Engineering Firm shall be limited to the triple amount of what the Engineering Firm charged the contracting entity for the services, however, only up to a maximum amount which corresponds to the nominal capital. Any liability for further damages, in particular for consequential damages from defects that exceed this amount, is expressly excluded.
4. The customer is obliged to establish an adequate insurance against damages caused by the work of employees of the Engineering Firm on-site (especially to hard & software).
§ 8 Retention of title
The copyright and ownership for the design plans or data carriers shall remain with the Engineering Firm until all claims to which the Engineering Firm is entitled have been settled. Until this fulfillment has occurred the Engineering Firm shall also have the right of retention for any provided manufacturing documents.
§ 9 Order cancellation
In all cases where a delivery of the design is not performed, and the Engineering Firm is not at fault, all the incurred costs must be paid to the Engineering Firm. The contracting entity is entitled to demand the surrender of the not yet finished design plan.
If changes are made to the design which range beyond the requirements specified when placing order, the pricing and delivery times must be renegotiated. If this is not performed, then an appropriate remuneration must occur. The accrued costs for in vain actions so far, and a reasonable remuneration for this are also due immediately and must be reimbursed to the Engineering Firm.
§11 Third-party copyrights
If the requirement profile of the contracting entity contains drawings, models or samples, the contracting entity will ensure that third-party rights are not infringed through their use. The Engineering Firm will possibly inform the contracting entity about rights known to him. The contracting entity shall indemnify the contractor against claims of third parties in this respect, and provide compensation to him for the resulting damages.
§12 Place of performance and jurisdiction
Place of performance for commercial entities is Bamberg. The place of jurisdiction is Bamberg
§13 Applicable law
The laws of the Federal Republic of Germany shall apply exclusively. Current as of: February 2009
General terms and conditions of sale and delivery
The following formulations are non-binding recommendations of the General Association of Plastics Processing Industry Association. The following terms and conditions are only effective towards entrepreneurs, legal persons under public law, or special assets under public law.
1. Orders are only binding through the order confirmation of the supplier. Changes and additions should be made in writing. All offers are non-binding unless they are referred to as fixed offers. 2. If the business relationship is a permanent one these terms and conditions are also effective for any future transactions without express reference, provided that the ordering entity shall have received the terms conditions for a previous order acknowledged by us. 3. Terms and conditions of the ordering entity do not apply, unless they are expressly recognised by the supplier. 4. Should individual provisions be invalid, the remaining conditions shall not be affected thereby.
1. Unless otherwise agreed, prices are ex works, exclusive of freight, customs, ancil-lary import charges and packaging, plus legal value-added tax. 2. Should major cost factors change substantially after the offer is made or the order is then acknowledged by the supplier and the ordering entity will agree on an adjustment of the prices and the prorated costs for moulds. 3. If the parties agreed that the price depends on the weight of the parts, the final price shall be based on the weight of the approved type samples. 4. For new orders (= follow-up business), the supplier shall not be bound by previous prices.
III. Obligations to make and take delivery
1. Delivery periods begin with the receipt of all documents required for the execution of the contract, the deposit and the timely provision of material, as far as they have been agreed upon. Once we give notice of readiness for dispatch the delivery period is deemed complied with if dispatch is delayed or made impossible without the suppliers fault. 2. If a delivery deadline is not adhered to due to the fault of the supplier, the ordering entity shall then be entitled to withdraw from the contract or demand a compensation for delay after a reasonable grace period with the exclusion of further claims, if he has not acted in gross negligence or with intent. Compensation for delay is limited to a maximum of 5% of the partial delivery that is not made in accordance with the contract.he There can be no withdrawal from the contract if the ordering entityis in default of acceptance. It is up to the ordering entity to prove that any damage beyond the above has been incurred. 3. Fairly made partial deliveries and reasonable deviations from the quantities ordered by no more than +/- 10% are allowable. 4. For call-off orders without agreement of a run-time, production lot sizes and delivery dates, the supplier can demand a binding determination about this no later than three months after the order confirmation. If the ordering entity fails to meet such a request within three weeks then we shall be entitled to set an extension period of two weeks, and upon expiration of such an extension withdraw from the contract and/or claim damages. 5. If the customer does not meet his acceptance obligations, the supplier without prejudice to any other rights shall not be bound to the rules governing the sale of self-help, he shall rather be entitled to sell the delivery item after a prior notification of the ordering entity. 6. In cases of force majeure the supplier may postpone delivery during the period of hindrance, and utilize a reasonable restart time, or otherwise wholly or partially withdraw from the contract for the contractual part not yet fulfilled. Strikes, lockouts or unforeseeable and unavoidable circumstances, such as operational malfunctions, are of the same force majeure, which make the timely delivery impossible for the supplier despite reasonable efforts; the supplier shall be obligated to provide adequate proof. This also applies if the above mentioned obstacles occur during a delay or with a subcontractor. The ordering entity may request the supplier to declare whether he wants to withdraw, or wants to deliver within a reasonable grace period of two weeks. If he fails to explain himself the ordering entity may withdraw from the non-fulfilled part of the contract. The supplier will inform the ordering entity if a case of force majeure occurs, as stated in paragraph 1. He is obligated to keep the impairment of the ordering entity as low as possible, if necessary by surrendering the forms for the duration of the hindrance.
IV. Packaging, shipping, transfer of risk and default of acceptance
1. Unless otherwise agreed, the supplier will select the packaging, shipping method and shipping method. 2. Even in case of a freight-free delivery, the risk shall pass to the ordering entity with the departure of the supplier’s factory. If dispatch is delayed through the ordering entity’s fault then the passage of risk takes place as early as with the notice of readiness for dispatch. 3. At the ordering entity’s written request and his expense, goods will be insured against the risks to be identified him.
V. Retention of ownership
1. Supplies remain the property of the supplier until the fulfilment of all claims against the supplier from the ordering entity, even if the purchase price is paid for specially designated claim. For the current account, the retained ownership of the supplies (retained goods) is a security for the balance invoice of the supplier. If a reciprocal liability is established in connection with the payment of the purchase price, the reservation of ownership shall not expire prior to the redemption of the Bill of Exchange by the ordering entityas the acceptor.
2. Any work on or processing of goods performed by the ordering entity is made on behalf of the supplier, with the exclusion of the acquisition of ownership under § 950 BGB. The supplier will become the co-owner of the newly created goods according to the ratio between the net invoice value of the supplier’s goods and the net invoice value of the new goods, which serve as conditional goods for the security of the supplier’s claims according to Item 1.
3. For the processing (connection/mixing) with other goods not belonging to the supplier by the ordering entity, the provisions of §§ 947, 948 BGB shall apply, with the result that the co-ownership share of the supplier for the new goods shall now be considered as reserved goods in the sense of these conditions.
4. The ordering entity may resell conditional goods only within the ordinary course of his business operations and the condition that a retention of ownership clause according to Items 1 through 3 above shall also be imposed on the ordering entity’s customers. The ordering entity shall not be entitled to conduct other enactments regarding the goods, in particular pledges and security assignments.
5. For any future resale of conditional goods, the ordering entity hereby in advance assigns to the supplier all and any receivables and other lawful claims including ancillary rights that the ordering entity may acquire against its customers, until all claims against the ordering entity are satisfied. At the request of the supplier, the ordering entity shall immediately provide the supplier with any and all the information and records required in order to assert suppliers rights against the ordering entity’s customers.
6. If the reserved goods are resold by the ordering entityin accordance with paragraph 2 or 3 after the processing together with other goods not belonging to the supplier, is the assignment of the purchase price claim pursuant to paragraph 5 shall only be up to the amount of the reserved goods invoice value belonging to the supplier.
7. If the value of the securities that exist for the supplier exceed the balance of his claims by more than 10% the supplier shall at the ordering entity’s request release excessive securities whereas the selection is at the discretion of the supplier.
8. The supplier must be notified immediately of any pledging or attachment of conditional goods by third parties. The ordering entity is responsible for all necessary costs of intervention unless they are borne by third parties.
9. If the supplier exercises his retention of title rights in accordance with the above provisions through a reclaiming of goods under retention, he shall be entitled to sell the goods or auction at his own discretion. The assertion of the retention rights and the demand for surrender in particular represent a withdrawal from the contract. The withdrawal of the reserved goods is performed with the attained proceeds, however, only up to the agreed delivery prices. Any further claims damages, especially for loss of profit, are reserved.
VI. Liability for defects
1. Decisive for the quality and workmanship of the products are the type samples, which the supplier will submit for validation to the ordering entity at its request. The reference to technical standards serves for the performance description and is not to be understood as guaranteed characteristics.
2. If the supplier has consulted the ordering entity beyond the contractual services scope, he shall only be liable for the functionality and suitability of the merchandise pursuant to an explicit prior assurance.
3. Complaints must be made immediately in writing. In case of hidden defects, the complaint must be issued immediately after gaining knowledge. In both cases all warranty claims shall lapse after twelve months after the passing of risk, unless otherwise agreed. Any longer limitation periods that may be mandatory under the law (BGB § 438 subsec. 1 no. 2, BGB § 479 subsec. 1, and BGB § 634a subsec. 1 no. 2) take precedence.
4. If a complaint for defects is justified – on the basis of the quality and workmanship warranted by the type sample released in writing by the ordering entity – the supplier shall be under obligation to rework. If he fails to remedy the defect within a reasonable period of time, or if even repeated reworking fails then the ordering entity may reduce the purchase price or withdraw from the contract. Further claims, in particular reimbursement or compensation claims due to deficient or consequential damage, exist only in the context of provisions VII. Replaced parts shall be returned freight collect upon request to the supplier.
5. Unauthorized rework and improper treatment shall result in the loss of all warranty claims. Only for the prevention of excessive damages or in case the removal of defects by the supplier is delayed, will the ordering entity be entitled, after consultation with the supplier, to remedy the defects and claim reimbursements of reasonable costs. 6. Wear and tear due to contractual use entails no warranty claims. 7. Rights of recourse under §§ 478, 479 BGB exist only when the use by the consumer was lawful and only to the legally allowed extent. Goodwill arrangements that were not agreed with the supplier are excluded, and the rights of recourse require that those entitled to recourse observe their own duties, in particular the duty to complain about defects.
VII. General Limitations of Liability
In all cases in which the supplier is obliged to compensate for damages or reimbursement of expenses in deviation from the above stated terms and conditions on the basis of contractual or statutory claims, he, his officers or agents shall only liable in case of intent, gross negligence, or a violation of life, body or health. The no-fault liability under the product liability Act, as well as the liability for the performance of a quality guarantee remains unaffected. Nor does it affect a liability for culpable infringement of essential contractual duties; in this case, however, liability is limited, except in the cases of sentence 1 above, to foreseeable damages typical of the particular kind of contract. A change of the burden of proof to the disadvantage of the ordering entity is not associated with the preceding regulations.
VIII. Terms of payment
1. All payments are in € (EURO) and may only be paid to the supplier.
2. Unless otherwise agreed, the purchase price for supplies or other services is payable with a 2% cash discount within 14 days, and without any deduction within 30 days after the invoice date. There can be no discount unless all previously due undisputed invoices have been paid. 3. If the agreed dates of payments are exceeded, the ordering entitymust pay interest at the legal interest rate of 8 percent above the current base interest rate of the European Central Bank, unless the supplier can prove a greater damage. It is up to the ordering entity to prove that a lower damage has occurred.
4. We reserve the right to reject cheques or Bills of Exchange. Checks and rediscountable bills are only accepted on account of performance; all costs involved are at the ordering entity’s expense.
5. The ordering entity can only set off claims or assert a right of retention if its claims are undisputed or finally recognized in court.
6. The continued non-compliance with payment terms or circumstances which justify serious doubts as to the creditworthiness of the ordering entity, will result in the immediate maturity of all claims of the supplier. Additionally, in this case, the supplier shall be in entitled to demand advance payments on all outstanding deliveries as well as upon fruitless expiration of a reasonable period of grace withdraw from the contract. IX. Moulds (tools) 1. The price of moulds contains the costs for a one-time sampling, but not the costs for testing and processing devices as well as changes requested by the ordering entity. Costs for additional sampling, for which the supplier is accountable shall be borne by the supplier. 2. Unless otherwise agreed, we are and shall remain the owners of the moulds manufactured for the ordering entity by the supplier or a third party on behalf of the supplier. Moulds are only used for orders of the ordering entity as long as the ordering entity meets his obligations to pay and take delivery. The supplier is only obliged to replace of these forms free of charge, if these are necessary for the fulfilment of an output quantity guaranteed to the ordering entity. The obligation of the supplier for retention expires two years after the last delivery of parts of the mould, and a prior notification of the ordering entity. 3. If it was agreed that the ordering entity should become the owner of the moulds, then owners shall pass to the ordering entity upon full payment of the purchase price. The handing over of the moulds to the ordering entity is replaced by the storage for the benefit of the ordering entity. Irrespective of the ordering entity’s legal right to recover possession and the serviceable life of the moulds, the supplier shall have an exclusive right of possession until the termination of the contract. The supplier shall mark the moulds as third-party property and at the ordering entity’s request and expense obtain insurance coverage for them. 4. For the ordering entity’s own moulds pursuant to item 3 and/or those provided on loan by the ordering entity, the liability of the supplier in terms of storage and maintenance is limited to the diligence the supplier usually exhibits for his own affairs. The maintenance and insurance costs shall be borne by the ordering entity. The obligations of the supplier shall expire, if after completion of the order and the respective prompt the ordering entity does not collect the forms within a reasonable period of time. As long as the ordering entity has complied with his contractual obligations to the full extent, the supplier shall have a right of retention regarding the moulds in any case.
X. Provision of materials
1. If materials are supplied by the ordering entity, they must be delivered at its expense and risk with a quantity surcharge of at least 5%, on time and in perfect condition. 2. In case of a failure to comply with these requirements, the delivery time will be extended appropriately. Except in cases of force majeure the ordering entity shall also bear the additional costs incurred for production interruptions.
XI. Industrial property rights and legal deficiencies
1. To the extent that the suppliers deliveries are based on drawings, models, samples or parts supplied by the ordering entity, it shall be the ordering entity’s responsibility to ensure that the supplier does not violate any third-party property rights in the destination country of the goods. The supplier shall inform the ordering entity of any known rights. The ordering entity shall indemnify the supplier against any third-party claims and make compensation for any resulting damages. If he is prohibited from conducting the manufacturing or the delivery by a third party exercising a respective copyright, the supplier – without examination of the legal situation – shall be entitled to cease any work until the legal situation between the ordering entity and the third-party has been clarified. Should the delay be such that the supplier cannot be reasonably expected to continue the order, he shall be entitled to withdraw from the contract. 2. The supplier’s drawings and patterns that have not yielded an order, will be returned on request; otherwise, the supplier is entitled to destroy them three months after submission of the offer. This obligation also applies for the ordering entity. The contractual party entitled to destroy must notify the other party in advance and in time of his respective intention. 3. The supplier shall be entitled to all copyrights, applicable industrial property rights, and in particular the rights of use and exploitation regarding the models, moulds, equipment, designs, and drawings created by the supplier or by third parties on the supplier’s behalf. 4. Should other defects of title exist, then No. VI shall apply accordingly.
XII. Choice of law and jurisdiction
1. Place of fulfilment is the location of the supplier’s factory.
2. At the discretion of the supplier, the place of jurisdiction is either the supplier’s head office or the ordering entity’s place of business, and also applies for documentary, bill of exchange and check proceedings.
3. German law shall apply exclusively. This Agreement shall be governed by German law with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods from April 11, 1980 (BGBl 1989 p. 586) for the Federal Republic of Germany (BGBl 1990 p. 1477). Current as of: February 2009