General Terms and Conditions of Trade
As at: June 2007
- 1. Acceptance of terms of delivery
- 2. Placement of orders
- 3. Delivery
- 4. Pricing
- 5. Terms of payment
- 6. Dispatch and transfer of risk
- 7. Minimum order quantity / tolerances
- 8. Protected rights
- 9. Retention of title
- 10. Moulds (special tools)
- 11. Guarantee
- 12. Miscellaneous claims
- 13. Place of fulfilment and Court of Jurisdiction
1. Acceptance of terms of delivery
All quotations and agreements are made exclusively on the basis of the following conditions; any diverging conditions imposed by the ordering party and not specifically agreed in writing shall not be deemed binding. The "General Terms and Conditions" of the ordering party, and in particular the terms of ordering, delivery and payment, are not applicable, where they stand in conflict with the "General Terms and Conditions" of the supplier.
2. Placement of orders
2.1 All agreements only become binding with the written confirmation of the supplier. This applies equally to additions and alterations or ancillary agreements.
2.2 The ordering party is liable for the accuracy of all documentation etc. to be supplied by him, such as in particular drawings. packing foil and samples.
2.3 Samples are in principle supplied against an invoice.
2.4 Details, drawings, illustrations and performance specifications contained in brochures, catalogues, price lists or documentation associated with a quotation are approximate, in line with general practice in the industry, unless they are expressly described as binding in the confirmation of order.
3.1 Delivery timescales are considered as approximately agreed, unless a fixed date for delivery has been confirmed. They commence with the day on which the confirmation of order is dispatched and are deemed to have been fulfilled when the goods have been dispatched from the factory / warehouse on the agreed date or, if dispatch is not possible, their readiness for dispatch has been notified to the ordering party. In the event of delay in delivery, a reasonable extension is to be set.
3.2 If the ordering party makes late alterations to the order which influence the delivery timescale, this may be extended in a reasonable manner.
3.3 Deliveries ordered against call-off are to be accepted within a period of six months of confirmation of the order.
3.4 To the extent that the supplier is obstructed in the execution of fulfilling his obligations by the occurrence of unforeseeable and unusual events which considering the individual case he could not have avoided despite taking reasonable precautions, irrespective of whether they occur in the supplier's premises or those of his suppliers, in particular interference by the authorities, operational interruptions, labour disputes, delays in delivery of essential raw or process , the delivery timescale shall be extended by a reasonable amount. Should such aforementioned events render delivery or provision of the service impossible, the supplier shall be released from his provision obligation, without the ordering party gaining an entitlement to withdraw from the agreement or to demand compensation. If such obstructions occur in respect of the ordering party, analogous legal provisions shall also apply in respect of his obligation to take delivery.
The parties to the agreement are each obliged to notify any obstructions of the above nature to the other party without delay.
4.1 All prices are quoted on a ex-works basis, except where otherwise specifically agreed, and do not include packing, carriage and postal or insurance charges.
4.4.2 If between conclusion of an agreement and delivery there is a significant change in any cost factors, particularly those governing wages, raw materials or freight charges, the agreed price may be modified by a reasonable amount to reflect the influence of those cost factors.
5. Terms of payment
5.1 All invoices are due and payable without deduction within 30 days of the date of the invoice. For payment within ten days, provided the ordering party is not in arrears in respect of goods previously supplied, a cash discount of 2% will be allowed.
5.2 If the ordering party defaults on any payment, all other outstanding payments shall fall due immediately without any default notice having to be served. In case of late payments, the supplier shall be entitled to levy a penalty interest charge in accordance with the provisions of the German Civil Code, § 247 (BGB).
5.3 Bills of exchange are only accepted by way of fulfilment and after prior agreement, and on the assumption that they are bankable. Discount charges will be levied as from the due day of the amount invoiced. Liability for correct presentation of the bill of exchange and for the levying of bill protest is excluded.
5.4 Once the agreement has been concluded, if the supplier receives cognisance of facts which indicate a severe worsening of the ordering party's financial situation, which in his commercial view may endanger his chances of claiming payment, up to the time of his delivery or providing the service agreed he may require the lodgement of a suitable guarantee within a reasonable period or call for payment on delivery. If the ordering party fails to fulfil the justified demand of the supplier in good time or at all, the supplier can withdraw from the agreement or may claim damages in respect of non-fulfilment. If the ordering party falls into arrears with an instalment, the supplier may make the complete payment due and payable immediately and in the event of delay caused by a substantial worsening of the financial situation, withdraw from the agreement without setting any extension or may claim damages in respect of non-fulfilment. In case of delay not occasioned by financial circumstances, the supplier may demand to be released from the agreement after fruitless expiry of a reasonable period of extension.
5.5. Offsetting with counter-claims by the ordering party is excluded in all imaginable cases, unless these claims are not disputed or have been legally established.
5.6. The supplier is entitled to assign his accounts receivable in respect of goods and services provided for purposes of financing.
6. Dispatch and transfer of risk
6.1 Dispatch is ex-works, where no specific agreement exists, without prejudice as to the most economical method of transport.
6.2 Risk is transferred to the ordering party at the point where the goods are handed over to the party engaged to undertake the carriage. If the goods are ready for dispatch, and delivery or the acceptance is delayed for reasons for which the supplier is not responsible, the risk transfers to the ordering party with delivery of notification of readiness for dispatch to the ordering party.
7. Minimum order quantity / tolerances
7.1 The supplier only accepts order with a minimum delivery value of 150.—euro. Deliveries are made, in the absence of other agreement, in delivery units as specified in the order documentation.
7.2 Part deliveries to a reasonable extent and over- and under-deliveries of up to 10% dictated by manufacturing considerations are permitted.
8. Protected rights
8.1 The supplier retains ownership and copyright entitlement to illustrations, drawings and other documentation; they may not be made accessible to others without the consent of the supplier and are to be returned to him on request without delay.
8.2 If the manufacture of goods in accordance with drawings, samples or other details provided by the ordering party should infringe any third-party protected rights, the ordering party shall indemnify the supplier against any consequent claims.
9. Retention of title
9.1 The supplier retains title to the goods delivered until settlement of all outstandings in respect of the business relationship with the ordering party. However, in the case of payment by means of cheque or bill of exchange, title to the goods is retained until the bill or cheque is cleared by the purchaser.
9.2 The ordering party is entitled to dispose of these cheques/goods in the normal course of business, provided he has fulfilled his obligations punctually which arise from his business relationship with the supplier. He may, however, neither pledge the conditional commodity nor assign it as security. If he sells the conditional goods on, he is obliged to respect the rights of the supplier to the extent of the purchase price claim by holding the amount to the supplier's credit.
9.3 If the ordering party falls into arrears the supplier is entitled even without exercising right of withdrawal and without setting an extension to demand provisional return of the conditional commodity at the cost of the ordering party.
9.4 All claims and rights arising from sale or hiring out such as may be permitted to the ordering party of goods to which the supplier retains title are hereby assigned by the ordering party to the supplier by way of security. The supplier hereby accepts such assignment.
9.5 Processing or remanufacturing of the conditional goods is always undertaken by the ordering party on behalf of the supplier. If the conditional goods are processed or inextricably mixed with other articles not being the property of the supplier, the supplier shall acquire co-ownership in the new articles in proportion of the invoiced value of the conditional goods to the other processed or mixed articles at the time of such processing or mixture. If supplier's goods are combined with other moveable goods or inextricably mixed to a uniform product, and if the other goods are deemed to be the major portion, it is considered agreed that the ordering party shall assign part-ownership to the supplier, provided that the major portion belongs to him. The ordering party shall safeguard ownership or part-ownership for the supplier. Otherwise, the same conditions apply for the article produced by processing, remanufacturing or mixing as for the conditional commodity.
9.6 The ordering party must inform the supplier without delay of any compulsory execution measures by third parties on the conditional commodity or in the claims assigned to the supplier or other securities, and hand over to him all documentation necessary to permit an intervention; this also applies to impairment of any other kind.
9.7 The supplier undertakes at the ordering party's request to release sureties to which he is entitled in accordance with the foregoing provisions provided the value of the goods assigned as surety exceeds the value of the outstanding amount by more than 20%.
10. Moulds (special tools)
In principle, only a proportion of the costs for moulds or special tools to be made is invoiced, separately from the value of goods.
10.1 By reimbursement of proportions of the costs for moulds / special tools, the ordering party acquires no claim to them; they remain the property of and in the possession of the supplier. The supplier undertakes to look after the tools for one year following the last delivery made to the ordering party. If the ordering party notifies the supplier before expiry of this period that further orders are to be made with the following year, the period of retention shall be extended by a further year. On expiry of the period, the supplier may dispose of the moulds / special tools as he wishes.
The ordering party may however acquire the moulds / special tools by payment of the full costs.
11.1 If the goods delivered are faulty in any way, or if they are lacking assured characteristics, the supplier may, at his option, and excluding any further guarantee claim by the ordering party, rework the goods or supply replacements.
Identification of such faults must be notified to the supplier without delay, in the case of manifest faults within ten days of acceptance of the goods, and for concealed faults immediately on their being identified, and in writing.
11.2 For faults caused by unsuitable or improper use, incorrect installation or commissioning by the ordering party or others, fair wear-and-tear, faulty operation or careless treatment, as well as for unprofessional alterations or repairs carried out by the ordering party or others without the supplier's authority, no liability whatsoever will be accepted.
11.3 The period of guarantee commences with delivery of the goods to the ordering party and terminates at the latest 12 months after the goods have left the supplier's factory.
11.4 If the supplier allows a period of grace to elapse having failed to correct the fault or supply replacement goods, the ordering party shall be entitled to withdraw from the agreement.
12. Miscellaneous claims
Compensation claims arising from delay, impossibility of performance, culpable infringement of subsidiary contractual obligations, indebtedness at conclusion of agreement, unlawful act are all excluded unless they are based on intent or gross negligence on the part of the supplier or his vicarious agents. Liability also for grossly negligent infringements is restricted to compensation for losses reasonably to be anticipated when the agreement was concluded.
Liability for personal injury and damage to property used for private purposes in accordance with product liability legislation is not affected hereby.
13. Place of fulfilment and Court of Jurisdiction
For deliveries and services provided to customers abroad, it is expressly agreed that all costs of legal pursuit of claims by the supplier in cases of delay in payment, both inside and outside court, shall be borne by the customer.
Place of fulfilment of all obligations is the supplier's base and for all legal disputes, also in the context of actions relating to cheques or bills of exchange, the court at the supplier's base is responsible when the customer is a businessman, a body corporate or special fund under public law. The supplier is nonetheless entitled to take action at the jurisdiction of the contract partner. For both parties, the contractual relationship is subject exclusively to German law.
B / R / K Vertriebs-GmbH, Westring 340, D-42329 Wuppertal