Unless otherwise agreed in writing the following general terms and conditions of delivery and payment have exclusive application to all deliveries - including deliveries made in the future. We hereby expressly refute any conditions of purchase used by any of our customers. They are not binding on us unless confirmed by us in writing.
1.1 - Our quotations are given without obligation. The customer’s quotations are binding. Contracts are not concluded until orders are confirmed by us in at least textform within the meaning of § 126b BGB [German Civil Code] (fax or email satisfactory, hereinafter called “TEXTFORM”) or until delivery is made.
1.2 - Drawings, diagrams, weights and measures that form part of a quotation are approximations only and are not binding unless expressly stated to be binding.
1.3 - We retain title and copyright over cost estimates, drawings and other documentation. The customer may not grant third parties access thereto without our express written consent.
1.4 - In the case of custom-made products we have the right to a 10% leeway in agreed delivery quantities, either up or down, on a price adjustment being made.
If we manufacture specially designed tools in order to perform supply contracts with a customer these are charged for separately. In the case of firm orders for binding quantities it may also be agreed that the tool costs be spread over the price of parts. We always retain title to specially designed tools. We have the right to scrap specially designed tools 2 years after the final delivery of custom-made products without being liable to the customer in damages.
3.1 - Unless otherwise agreed, our prices are quoted ex works exclusive of packaging, carriage and VAT. Settlement must be made in Euros.
3.2 - The customer must pay our invoices for deliveries of parts to our point of payment free of deductions; a 1% discount is allowed for payment within 10 days, otherwise payment must be made net within 30 days.
35 % of the price is payable with the order,
65 % is payable after final acceptance of the machinery
due without discount. Tools and spare parts are payable promptly without discount
3.3 - Payment is not deemed made to us until freely available to us at a bank. We recognise cheques and bills of exchange as given for the purposes of performance only. The customer bears the discounting costs and expenses. They are due and payable immediately. We state on our invoice form to whom our customer has to make payment to discharge the debt.
3.4 - In the event of a customer being in arrears of payment it will owe us default interest in an amount of 8 percent above base rate or 10%, whichever is the greater.
3.5 - The retention of payments and the offsetting of counterclaims are not permitted unless any reciprocal rights or counterclaims are undisputed, acknowledged or established by way of a final court order.
3.6 - If a significant deterioration of assets should arise at a customer as a result of which our claims might be jeopardised, particularly if an insolvency application is filed in respect of the assets of a customer or if a customer suspends it payments, we have the right (as we may choose) to cancel the outstanding part of the supply contract or to require that security be lodged or payment be made in cash as and when the contract is performed.
3.7 - In the case of deliveries that are made more than 4 months after the conclusion of a contract, whether by agreement or due to circumstances for which we are not responsible, we may make reasonable price rises if prices and costs on which calculations were based (especially staffing, raw material and energy costs) should have significantly changed since the contract was agreed. In such a case we will give comprehensible reasons for the change in price calculation or change in prices and will inform the customer of any corresponding change in prices in TEXTFORM. The customer will have the right to cancel the contract for a period of two weeks from such notification. Notice of cancellation must be given in TEXTFORM.
4.1 - Unless specifically agreed, the risk passes to the customer as soon as we hand the goods over to the carrier or, if dispatch should be delayed without blame attaching with us, as soon as we notify the customer that the goods are ready for dispatch, even if we have agreed to assume other responsibilities – such as delivery costs or carriage and installation by our own transport staff. If so requested by the customer, we will insure consignments at its expense against theft, breakage, damage in transit, fire and water damage and any other insurable risks.
4.2 - Delivery in instalments is permitted to a reasonable extent. Delivery in instalments will be unreasonable, e.g. where the customer has no interest in delivery in instalments or if merely a minor delivery has not (yet) been made.
4.3 - The delivery period commences when the order confirmation is dispatched or when all technical and commercial details of the order have been clarified and any agreed advance payment received, whichever is the later. The delivery date is deemed met if the goods leave the works before the expiry of the delivery period or if notice of readiness for dispatch is given before the expiry of the delivery period provided that dispatch is delayed due to no fault on our part.
4.4 - In the event of culpable delay in delivery our liability is limited to a lump-sum amount of damages of 0.5% per complete week, the maximum amount being 5% of the order value of the late delivery. The customer will not have any further claims for delay in delivery unless we are liable under clause 8 (Liability in damages). The customer must inform us by not later than the conclusion of the contract if any contract penalties apply in dealings with its own customers.
4.5 - If dispatch should be delayed due to circumstances for which we are not responsible the risk passes to the customer when notice of readiness for dispatch is given and we will store the goods at the customer’s expense; for storing the goods we will charge per month the costs actually incurred at a minimum of 0.5% of the invoice value of the delivery stored; the customer will be free at all times to collect the delivered goods at its own risk and expense.
5.1 - The delivery period may be reasonably extended in the event of modifications being required by the customer and accepted by us or on the occurrence of force majeure, especially unforeseen and unavoidable events for which we are not responsible (e.g. lawful strikes or lockouts, breakdowns, problems in obtaining materials or energy supplies, transport delays, shortages of labour, energy or raw materials, official measures and difficulties in obtaining consents, especially import and export licences). This applies even if the obstacles occur at one of our own suppliers without blame attaching with us or with our own supplier or during an existing period of default.
5.2 - Both parties have the right to cancel if the problem resulting from force majeure should not be purely temporary. Claims in damages are excluded in the cases set out in clause 5.1. We will inform the customer of the beginning and ending of the force majeure as soon as possible.
6.1 - We retain title to goods supplied until such time as all payments have been received and accepted cheques and bills of exchange have been irrevocably credited in relation to the business connection with the customer. Where business is conducted on an open account basis our retention of title applies to the acknowledged balance.
6.2 - The customer is obliged to treat the items purchased carefully; it is obliged, in particular, to insure them against loss, damage, water and fire at sufficient reinstatement value at its own expense. The insurance policy and proof of payment of premiums must be produced to us on request. It hereby assigns to us any claims and rights that it might have under the insurance policy. We accept this assignment. The assignment is subject to the condition subsequent that the customer acquires full title.
6.3 - The treatment and processing of retention goods by the customer is always undertaken on our behalf, but without liability being assumed by us. In the event of goods being processed and combined with other products we acquire joint title to the new product in the proportion that the invoice value of the retention goods bears to that of the other materials processed at the time of such processing. The same applies mutatis mutandis in the event of retention goods being mixed with other materials.
6.4 - The customer has the right to resell retention goods in the normal course of business; however, it hereby assigns to us in advance the full amount of all claims that might accrue to it against its own customers or third parties as a result of the goods being resold or reused on behalf of its own customers. We accept such assignment.
6.5 - The customer has the right to collect debts assigned to us provided that it meets its payment obligations out of the proceeds received.
6.6 - If the customer should fail to meets its payment obligations we may revoke permission to reuse and resell the goods and may require the customer to give us details of the receivables assigned, their debtors and everything needed to collect the debts, to hand over the relevant documentation and to inform its debtors of the assignment.
6.7 - If we state that we are cancelling the contract we are free to sell elsewhere.
6.8 - As long as our retention of title continues the customer may not transfer title as security or pledge the goods concerned without our written consent. Third-party claims on retention goods must be promptly notified to us. The customer bears the costs incurred in resisting such claims unless they are reimbursed by the third party.
6.9 - If the value of security should exceed our claims by more than 10% we will to that extent release such security as we may choose at the customer’s request.
7.1 - Defects must be immediately notified to us in TEXTFORM no later than 8 days after the goods are received or, in the case of hidden defects, no later than 3 days after they are discovered. The provision in § 377 HGB [German Commercial Code] also applies.
7.2 - The limitation period is 12 months from delivery. The liability in damages governed solely by clause 8 is excluded herefrom.
7.3 - Unless otherwise agreed, variations in quality, colour, size, number, weight or finish that are of minor value or customary in the trade, unavoidable technically or in conformity with standards, do not constitute defects.
7.4 - Infringement of third-party rights may not – subject to clause 8 for claims for liability in damages – result in liability under a warranty unless those rights are protected in the Federal Republic of Germany. We do not undertake examination of infringements of third-party rights extending beyond Germany’s borders. We are not, in principle, aware of the actual place of installation or use of our products. The customer is therefore obliged to carry out its own checks to establish whether any infringement of property rights or other breaches of rights at the place of delivery or use might result from the delivery or use of products.
7.5 - In the event of justified complaints we will make good the defect or supply a flawless product, as we may choose. If repairs by us should be unsuccessful or if a replacement should also be defective or be unjustifiably refused or delayed the customer may set a reasonable further deadline and, if that expires without result, it may then demand a price reduction or, in the case of material defects, cancel the contract and claim damages under clause 8. The costs of subsequent performance incurred as a result of an item purchased having been taken after delivery to a place other than the customer’s business establishment will be borne by the customer.
7.6 - If a defect is due to a significant third-party product we have the right to initially restrict our liability to the assignment of liability rights and claims for defects accruing to us against the supplier of the third-party product unless satisfaction under the right assigned should fail or it should be impossible for the right assigned to be exercised for some other reason. In that eventuality the customer’s rights under clause 7.5 will be restored. Clause 8 will apply to claims for liability in damages.
7.7 - Our plug inserts are manufactured according to current national and international standards. Liability for defects in the establishment of crimped connections is excluded if the customer uses crimping machines and spare and wearing parts made by a different manufacturer instead of the original BASICcrimp, ECOcrimp, or Procrimp crimping machines (together called ‘crimping machines’) and their original crimping tools, spare and wearing parts (together called ‘spare parts’) unless the replacement of the original crimping machines and original spare parts by another manufacturer’s crimping machines and spare parts is not the cause of the defects.
8.1 - Claims in damages and claims for reimbursement of expenses against us – of any kind whatsoever – are excluded, irrespective of legal grounds, unless otherwise provided below.
8.2 - We are liable by law for
(ii) culpable loss of life, personal injury or damage to health or for mandatory liability under the Product Liability Act;
(iii) defects that we fraudulently conceal or for the absence of which we have given a guarantee; and
(iv) for the culpable infringement of material contractual obligations; a material contractual obligation for this purpose means one the fulfilment of which is essential to due performance of the contract and on compliance with which the customer is properly entitled to rely.
However, our liability is limited to the extent of the guarantee or, in the case of simple negligence in the infringement of material contractual obligations, to foreseeable loss or damage typical of the contract.
We have the right to assign claims under our business relationship.
10.1 - Unless otherwise agreed, the place of performance of all services under supply contracts, including payment, is our head office.
10.2 - The venue for all disputes arising out of the supply contract is the court having jurisdiction at our head office where the customer is a businessman, a legal person governed by public law or a special fund under public law. However, we are also entitled to issue proceedings in the court having jurisdiction at the customer’s head office.
10.3 - German law alone applies to the exclusion of the UN Convention on the International Sale of Goods (CISG).
10.4 - If individual provisions of these terms and conditions of delivery should be invalid in whole or in part the remaining provisions shall still be valid.