1. Any and all deliveries made and services provided are subject to the Terms of Delivery at hand as well as to separate contractual agreements possibly concluded. Any deviating terms of purchase of the Buyer shall not become a constituent element of the contract even in case of order acceptance. A contract shall be established – for lack of specific agreement – with the written order confirmation of the Seller.
2. The Seller reserves property and copyrights for samples, cost estimates, drawings and similar information of physical and non-physical nature – also in electronic form; these may not be disclosed to third parties. The Seller undertakes not to disclose information and documents identified as confidential by the Buyer to third parties without his written consent.
3. Samples shall be supplied only against charges.
4. Verbal supplementary agreements do not exist. Modifications require written form in order to be effective.
1. The prices – for lack of specific agreement – shall be ex works and do not include packaging. The quoted price of products does not include duty, tariffs, taxes or similar charges, which shall be borne by the Buyer, unless otherwise agreed upon in writing.
2. For lack of specific agreement, payment shall be effected immediately following delivery to the account of the Seller and without any deduction. The respective quantity delivered shall be charged.
3. The Buyer shall have the right to retain payments or to offset these against counterpayments only to the extent that his counterclaims are undisputed and determined legally binding.
1. The Period of Delivery results from the agreements entered into between the contracting parties. The prerequisite for compliance by the Seller is that any and all commercial and technical questions have been clarified between the contracting parties and that the Buyer has complied with any and all obligations under his responsibility, such as e.g. the procurement of the certificates or authorizations required by the authorities or performance of a down payment. Should this not be the case, the Period of Delivery will be extended appropriately. This shall not apply to the extent that the Seller is responsible for the delay.
2. Adherence to the Period of Delivery shall be subject to correct and on-time delivery to us on the part of our suppliers. The Seller shall inform the Buyer about emerging delays as soon as possible.
3. The Period of Delivery shall be deemed to have been complied with if the delivery item has left the factory of the Seller or if readiness for shipment has been announced.
4. In case that the shipment is delayed upon request of the Buyer, the Seller shall be entitled to otherwise dispose of the delivery item after fixing a reasonable deadline and its fruitless expiry and to supply the Buyer subject to a reasonably extended period. In case that the shipment is delayed on account of reasons for which the Buyer is responsible, the costs incurred as a result of such delay shall be charged to the Buyer, beginning one month after announcement of the readiness for shipment of the delivery item.
5. In case that non-compliance with the Period of Delivery is to be attributed to force majeure, labor disputes or other events beyond the sphere of influence of the Seller, the Period of Delivery shall reasonably be extended. The Seller shall inform the Buyer of the beginning and end of such circumstances as soon as possible.
6. In case that delivery is rendered entirely impossible or economically unreasonable for the Seller as a result of force majeure, labor disputes or other events beyond the sphere of influence of the Seller, the Seller shall have the right to either wholly or partially resign from the contract. Claims for damages of the Buyer on account of such resignation are excluded. If the Seller intends to make use of his right of resignation, he shall inform the Buyer immediately upon identification of the implications of such event. This shall also apply if an extension of the Period of Delivery has initially been agreed upon with the Buyer.
7. The Buyer may resign from the contract without fixing a time limit if complete performance is ultimately rendered impossible for the Seller prior to the transfer of risk. The Buyer may furthermore resign from the contract if execution of part of the delivery is rendered impossible for an order and if the Buyer has a legitimate interest to reject a part delivery. If this is not the case, the Buyer shall have to pay the contract price for the respective part delivery. The same shall apply in case of an inability of the Seller. In all other cases, Paragraph VII.2. “Liability” shall apply. In case that the impossibility or inability occurs during the default in acceptance or if the Buyer is alone or predominantly responsible for the circumstances, he shall be obliged to the performance of quid pro quo.
8. In case that the Buyer fixes a reasonable deadline for performance after the due date – taking into consideration the statutory exceptions – and if this deadline is not complied with, the Buyer shall be entitled to resignation within the scope of statutory provisions. Upon request of the Seller he undertakes to declare within a reasonable time whether he intends to make use of his right of resignation. Further claims from Default in Delivery are exclusively governed by Paragraph VII.2. hereunder.
1. The risk shall be transferred to the Buyer whenever the delivery item has left the factory, namely also if part deliveries are performed or if the Seller has undertaken other services, such as e.g. the forwarding expenses or shipment.
2. In case that delivery is delayed or not undertaken as a result of circumstances not to be attributed to the Seller, the risk shall be transferred to the Buyer at the day the readiness for shipment is announced. The Seller undertakes to effect insurance as requested by the Buyer at the expense of the Buyer.
3. Part deliveries shall be permissible to the extent reasonable for the Buyer.
1. The Seller reserves the proprietary right for the delivery item until any and all claims of the Seller versus the Buyer arising from the business relations have been settled, including future claims, also arising from contracts concluded simultaneously or subsequently. This shall also apply if individual or all claims of the Seller were entered into a current account and the balance has been determined and acknowledged. In case of behavior of the Buyer contrary to the terms of contract, particularly in case of default in payment, the Seller shall be entitled to withdrawal of the delivery item after overdue notification and the Buyer shall have the obligation to surrender the delivery item. The Buyer is obliged to immediately notify the Seller in case of seizure or other interventions of third parties.
2. The Buyer is entitled to resell the delivery item in ordinary course of business. He, however, already today cedes to the Seller any and all claims arising from the resale versus purchaser or third parties. The Buyer is entitled to collection of said claims also after cession. The authorization of the Seller for collection of the claims on his own is not affected by this. The Seller, however, undertakes not to collect the claims as long as the Buyer properly complies with his payment obligations or the authorization to collect has not been revoked or no application for the opening of insolvency procedures has been filed. The Seller may otherwise request for the Buyer to disclose the claims ceded and their debtor, providing all information required for collection, handing over all documents pertaining to this, and informing the debtors of the cession, unless already performed by the Seller. In case that the delivery item is resold together with merchandise that is not the property of the Seller, the claim of the Seller versus the purchaser shall be deemed to be ceded in the amount of the contract price agreed between Seller and Buyer.
3. The Buyer shall not be entitled to pledge or transfer as security the delivery item.
4. THE BUYER HEREBY GRANTS TO THE SELLER A SECURITY INTEREST IN THE PRODUCTS SOLD HEREUNDER TO SECURE PAYMENT OF THE PRICE OF SUCH PRODUCTS AND AGREES, AND APPOINTS THE SELLER, ITS AGENT, TO TAKE ALL SUCH ACTION AND TO EXECUTE ALL SUCH DOCUMENTS AND INSTRUMENTS AS MAY BE NECESSARY OR REASONABLY REQUESTED BY THE SELLER TO PERFECT AND CONTINUE PERFECTED THE SELLER’S SECURITY INTEREST HEREUNDER.
5. The Seller shall be entitled to insure the delivery item at the expense of the Buyer against theft, breakage, fire, water, and other damages, unless the Buyer has demonstrably obtained such insurance coverage on his own.
6. If, in connection with the payment of the contract price, a liability of the Seller is established for a bill-of-exchange the reservation of proprietary rights including its special forms agreed upon or other securities agreed upon to secure payment shall not expire before the bill-of-exchange has been honored by the Buyer as debtor.
7. The application for the opening of insolvency procedures shall entitle the Seller to resign from the contract and demand immediate return of the delivery item.
The Seller shall warrant material defects and deficiencies in title of the delivery under exclusion of further claims – subject to Paragraph VII “Liability” – as follows:
1. All those parts are to be reworked or replaced by parts free of defects – which is at the discretion of the Seller – free of charge, which turn out to be defective on account of circumstances that have occurred prior to the transfer of risk. The Seller is to be informed in writing immediately whenever such defects are determined. Parts replaced shall become the property of the Seller.
2. Upon agreement with the Seller, the Buyer shall grant the Seller the time and opportunity required in order to perform any and all rework and substitute deliveries, which the Seller deems necessary, with the Seller otherwise exempted from liability for the resulting consequences. It is only in urgent cases where the operational safety is jeopardized and/or as defense against disproportionate damages – in which cases immediate notification of the Seller is mandatory – that the Buyer has the right to eliminate the defect himself or have the defect eliminated by third parties and demand compensation for expenditures incurred.
3. Regarding the direct costs resulting from rework and/or substitute delivery, the Seller shall bear the costs for the replacement part including shipment – to the extent that the complaint proves justified. In all other cases the Buyer shall bear the costs.
4. Within the scope of statutory provisions, the Buyer has the right to resign from the contract if the Seller – taking into account the statutory exceptions – has allowed a reasonable time fixed for rework or substitute delivery on account of material defect to expire fruitlessly. In case of only insubstantial defects, the Buyer only has the right for a reduction of the contract price. The right for a reduction of the contract price is otherwise excluded. Further claims are determined by Paragraph VII.2. hereunder.
5. No liability is assumed particularly in the following cases: Unsuitable or improper use, incorrect installation and/or commissioning by Buyer or third parties, natural wear, erroneous and negligent handling, improper maintenance, unsuitable operating materials, chemical, electro-chemical or electrical impact – to the extent that they are not the responsibility of the Seller. The Seller shall assume liability for defects of the material supplied by the Buyer only if the defects could have been identified, had professional diligence been applied. In case of manufacturing based on drawings of the Buyer, the Seller shall assume liability only for execution in accordance with the drawings.
5a. If special tools are ordered, the actual delivery quantity is allowed to either exceed or undershoot the order quantity by approx. 10 % or a minimum of 2 units, as required.
6. In case that the Buyer or third parties perform improper rework, the Seller shall not assume any liability for the consequences that result. The same shall apply for modifications of the delivery item made without prior consent of the Seller.
Deficiencies in Title
7. The Buyer shall assume the sole responsibility for documents such as drawings, gauges, samples or the like to be submitted by the Buyer. It is the Buyer’s responsibility to ensure that the workshop drawings submitted by the Buyer do not violate the copyrights of third parties. The Seller has no obligation vis-à-vis the Buyer to investigate if the submission of quotes on the basis of workshop drawings submitted to the Seller constitutes any violation of copyrights of third parties. Should a liability of the Seller nevertheless result from constitutive facts, the Buyer shall indemnify and hold harmless the Seller.
1. In case that the delivery item cannot be used by the Buyer in accordance with its contractual purpose by fault of the Seller as a result of negligent or incorrect execution of proposals submitted and consultations performed prior to or following the conclusion of the contract or by violation of other secondary contractual obligations – particularly instructions for operation and maintenance of the delivery item – the stipulations contained in Paragraphs VI and VII.2. shall apply under the exclusion of further claims of the Buyer.
2. The Seller shall assume liability for damages not established on the delivery item as such – on whatever legal grounds – only
a) in case of intent,
b) in case of gross negligence of the proprietor / institutions or senior executives,
c) in case of intentional or negligent violation of life, body and/or health,
d) in case of maliciously concealed defects,
e) in case of defects of the delivery item, to the extent that liability is assumed for personal injury or damage to property for privately used items in accordance with the German Product Liability Act (Produkthaftungs¬gesetz). In case of culpable breach of material contractual obligations, the Seller shall also assume liability in case of gross negligence of non-executive employees and minor negligence, in the latter case limited to reasonable, foreseeable typical contract damage. Further claims are excluded.
3. THE SELLER SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHER THEORIES OF LAW, WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY THE SELLER OR UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. UNDER NO CIRCUMSTANCES WILL THE SELLER BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER LOSS, DAMAGE OR EXPENSE OF ANY KIND, INCLUDING LOSS OF PROFITS, ARISING IN CONNECTION WITH THE CONTRACT OR WITH THE USE OR LIABILITY TO USE THE SELLER’S PRODUCTS FURNISHED UNDER THIS CONTRACT.
Any and all claims of the Buyer – on whatever legal grounds – come under the statutes of limitation in 12 months. The statutory time limits shall apply for claims for damages in accordance with Paragraph VII.2. a – e.
The following shall apply for machining contracts as a supplement to/deviating from the Terms of Delivery:
1. The subcontractor shall not assume any liability for the behavior of material submitted. His claim for remuneration remains unaffected.
2. Should the material become unusable during the machining by fault of the subcontractor, his claim for remuneration for the service rendered shall lapse. The claim for damages of the Buyer shall be governed by Paragraph VII.2. hereunder.
1. German Substantive Law under the exclusion of UN Purchasing Law shall apply for any and all legal relations between Seller and Buyer.
2. Should disputes arise from or in connection with the contract at hand, the parties shall first attempt to reach an out-of-court settlement. Should this not be possible, disputes shall be ultimately decided by a Court of Arbitration in accordance with the Arbitrary Court Regulation of the German Institution for Arbitration (DIS), excluding the regular legal process. The decision shall be taken by three arbitrators, with each of the two parties appointing one arbitrator and the third arbitrator selected by the two arbitrators appointed. Arbitration procedures shall be in German language and performed at the corporate seat of the exporter.
3. Place of Performance shall be 54595 Prüm, Germany.
Any and all deliveries performed shall exclusively be based on our Terms of Delivery. We hereby object to any and all contrary terms of purchase.