As of: 27 November 2001
Validity: the provisions below shall apply only with respect to business persons, legal persons under public
law and special funds under public law.
1. Orders shall only become binding once they have been confirmed by the supplier. Changes and additions are to be made in writing. All quotations are without obligation unless they are designated as binding quotations.
2. In the case of regular business transactions, these terms and conditions also apply to future transactions even if no explicit
reference is made to them, provided that the customer has been advised of these terms and conditions as part of an earlier order confirmed by the supplier.
3. Terms and conditions of the customer shall not apply unless the supplier explicitly accepts them.
4. If individual provisions are or become invalid, this shall not affect the remaining provisions.
1. In cases of doubt, prices apply ex-works excluding freight, customs duties, incidental import charges and packaging plus value added tax at the statutory rate.
2. Should fundamental cost factors change significantly between the point that the quotation is issued or the order is confirmed and delivery, the supplier and customer shall come to an agreement regarding adjustment of the prices and the share of the costs for moulds.
3. Should the price be agreed on the basis of component weight, the final price shall be calculated from the weight of the approved initial samples.
4. The supplier is not bound to previous prices in the case of subsequent orders (= follow-up orders).
III. Obligation to deliver and take delivery
1. Delivery periods shall start following receipt of all documents required to carry out the order, receipt of the advance payment and
the timely provision of materials, where agreed. The delivery period is deemed to have been met upon notification of readiness for delivery, even if shipment is delayed or is impossible through no fault of the supplier.
2. Should an agreed delivery period not be met through the fault of the supplier, but not due to gross negligence or intent, the customer shall be entitled, to the exclusion of any further claims, to demand compensation or to withdraw from the contract following a reasonable grace period. The compensation shall be
limited to a maximum of 5% of the portion of the delivery that was not supplied in accordance with the contract. Withdrawal from the contract is excluded if the customer is in default of acceptance. The customer reserves the right to prove that a higher level of damage has been incurred.
3. Reasonable partial deliveries and deviations from the order volumes up to plus/minus 10% are permissible.
4. In the case of call-off orders for which no agreement is made regarding duration, production batch sizes and acceptance dates, the supplier may demand binding specification of these points no later than three months after the order is confirmed. If the customer does not respond to this request within three weeks, the supplier shall be entitled to set a grace period of two weeks and may withdraw from the contract and/or demand compensation following expiration of this period.
5. If the customer does not fulfil its obligations to take delivery of the items, the supplier is not bound by the regulations regarding self-help sale, without prejudice to other rights, and may sell the items on the open market provided it has notified the customer in advance.
6. In the event of force majeure, the supplier shall be entitled to postpone delivery by the duration of the disruption plus a reasonable start-up period, or to withdraw from the contract either in full or in part on account of the non-fulfilled part of the contract. Force majeure shall include strikes, lockouts or unforeseeable, unavoidable circumstances such as interruptions to operations which, notwithstanding
all reasonable efforts, make it impossible for the supplier to make timely delivery; the supplier must furnish evidence of incidents of force majeure. This shall also apply if the aforementioned disruptions occur during default or with respect to a subcontractor. The customer may ask the supplier to declare within two weeks whether it intends to withdraw from the contract or make delivery within a reasonable grace period. If the supplier does not respond, the customer may withdraw
from the part of the contract that has not been fulfilled. The supplier shall inform the customer without delay if a case of force majeure such as that
described in this clause occurs. The supplier must keep any negative impacts on the customer to a minimum, if necessary by returning the moulds to the customer for the duration of the disruption.
IV. Packaging, shipping, transfer of risk and default in acceptance
1. Unless agreed otherwise, the supplier shall choose the packaging, shipping method and route.
2. Risk shall be transferred to the customer when the delivery leaves the supplier’s premises, including in the case of carriage-paid delivery. In the event
of dispatch delays that are attributable to the customer, risk shall be transferred as soon as notification of readiness for delivery is provided.
3. When requested in writing by the customer, the items shall be insured against the risks specified by the customer at its own expense.
V. Reservation of title
1. The supplier reserves title to the deliveries until all claims of the supplier against the customer have been met, even if the purchase price for specifically designated receivables has been paid. In the case of open accounts,
the title reserved to the deliveries (goods subject to reservation of title) is regarded as security for the balanced owed to the supplier.
If the supplier becomes liable based on a bill of exchange in association with payment of the purchase price, the reservation of title shall continue to apply
until the bill has been honoured by the purchaser as the drawee.
2. Any processing by the customer is performed on behalf of the supplier to the exclusion of acquisition of title under Section 950 of the German Civil Code;
the supplier becomes the co-owner of the item created by processing according to the ratio of the net invoice value of the supplier’s goods to the net invoice value of the processed goods,
with the item created by processing serving as the goods subject to reservation of title for the purpose of securing
the supplier’s claim as per clause 1.
3. If the customer processes (combines/mixes) the items with other items which do not belong to the supplier,
the provisions of Sections 947 and 948 of the German Civil Code shall apply, with the consequence that the supplier’s co-owned share of the new item shall then be deemed to be the goods subject to reservation of title as defined in these terms and conditions.
4. The customer shall only be permitted to resell the goods subject to reservation of title in the normal course of business and under the condition that it also agrees reservation of title with its clients in accordance with clauses 1 to 3. The customer is not entitled to dispose of the goods subject to reservation of title in any other way, in particular it may not pledge or assign them as security.
5. In the event of resale, the customer hereby assigns to the supplier the receivables owed to the supplier from resale and any other claims against its clients with all subsidiary rights. Such assignment shall apply until all the claims of the supplier have been settled. At the request of the supplier, the customer shall without delay provide the supplier with all information and documentation required to assert the rights of the supplier vis-à-vis the client of the customer.
6. If the goods subject to reservation of title are resold by the customer following processing as defined in clause 2 and/or 3 along with other items which do not belong to the supplier, assignment of the purchase price claim as defined in clause 5 shall only apply to the value of the invoice of the supplier’s goods subject to reservation of title.
7. If the value of securities granted to the supplier exceed its total claims by more than 10%,
the supplier is obligated – at the customer’s request – to release the securities to this extent. The supplier shall nominate the securities to be released.
8. The supplier must immediately be notified of any attachment or seizure of the goods subject to reservation of title by a third party. Any intervention costs incurred as a result shall be charged in each case to the customer if they are not borne by third parties.
9. If the supplier exercises its reservation of title in line with the above provisions by taking back the goods subject to reservation of title, it is entitled to sell the goods on the open market or have them auctioned. The value of the reclaimed goods subject to reservation of title shall be as sold or auctioned, and no higher than the agreed delivery price. The right to make further claims for compensation, in particular for loss of profit, is reserved.
VI. Liability for material defects
1. Initial samples, which are presented to the customer for inspection at the request of the supplier, are essential when it comes to ensuring quality and designing the products. Any reference to technical standards is made for the purposes of describing the items or services and is not to be interpreted as a guarantee of quality.
2. If the supplier has provided advice to the customer in addition to its contractual obligations, the supplier shall only be liable for the reliability and
suitability of the performance if this has specifically been assured in advance.
3. Claims regarding defects must be made immediately in writing. If defects are hidden, the claim must be made as soon as the defect is identified. In either case, all claims regarding defects shall become time-barred twelve months after risk has been transferred, unless agreed otherwise. These conditions apply unless longer periods are prescribed by law in accordance with Section 438 Paragraph 1 No. 2 German Civil Code, Section 479 Paragraph 1 German Civil Code and Section 634a Paragraph 1 No. 2 German Civil Code.
4. If claims for defects are justified – whereby the initial samples approved by the customer in writing define the expected quality and design – the supplier is obligated to render subsequent performance. If the supplier fails to meet this obligation within a reasonable period of time or fails to remedy the defects despite repeated attempts, the customer shall be entitled to reduce the purchase price or to withdraw from the contract. Further claims, in particular claims for reimbursement of expenses or damages on account of defects or consequential damage, shall only exist in line with the provisions defined under VII. Replaced parts shall be returned to the supplier at its request and cost.
5. Unauthorised reworking and improper treatment of items shall invalidate all claims based on defects. After giving the supplier prior notification, the customer shall only be entitled to rectify defects and to claim reimbursement for reasonable costs in order to prevent unreasonable damage or if the supplier fails to remedy the defects.
6. No warranty claims may be asserted for wear or tear caused by normal usage.
7. Rights of recourse in accordance with Sections 478 and 479 of the German Civil Code shall only be possible to the extent that the claim asserted by the consumer was justified and to the extent of the law, but not for goodwill provisions that have not been agreed with the supplier. These rights of recourse are subject to the fulfilment of obligations on the part of the beneficiary of the recourse claim, in particular compliance with defect notification obligations.
VII. General liability limitations In all cases, deviating from the terms mentioned above in which the supplier is obligated to pay damages or reimburse expenses on account of contractual or statutory bases for claims, the supplier shall only be liable if it, its executive employees or vicarious agents are guilty of intent, gross negligence or injury of life, limb or health. This shall not affect liability regardless of fault in accordance with the German Product Liability Act. Liability for culpable breach of fundamental contractual obligations shall also not be affected;
in this respect, liability is however limited to foreseeable damage typical of the contract, except in the cases outlined in clause 1 of this section.
The preceding provisions do not constitute a change to the burden of proof to the disadvantage of the customer.
VIII. Terms of payment
1. All payments shall be made in € (EURO) to the supplier only.
2. Unless agreed otherwise, the purchase price for deliveries or other performance is payable with a discount of 2% within 14 days or without a discount within 30 days from the date of the invoice. Entitlement to an early payment discount requires all previously due, undisputed invoices to have been settled. No discount shall be granted for any payment by bill of exchange.
3. If payment is not made within the agreed period, interest amounting to the statutory interest rate of 8% above the respective basic interest rate of the ECB shall be calculated unless the supplier provides evidence of a higher level of damage. The customer reserves
the right to prove that a lower level of damage has been incurred.
4. The supplier reserves the right to refuse cheques or bills of exchange. Cheques and rediscountable bills of exchange shall only be accepted with view to performance; all associated costs shall be borne by the customer.
5. The customer may only off set payments or assert a right of retention if its claims are undisputed or established by a final judgement.
6. Should the customer persistently fail to comply with payment terms or should circumstances arise which cast serious doubts on the creditworthiness
of the customer, all claims on the part of the supplier shall become due immediately. In such cases, the supplier is also entitled to demand advance payments for any outstanding deliveries and to withdraw from the contract once a reasonable grace period has passed.
IX. Moulds (tools)
1. The price for moulds also includes the costs for the one-off creation of samples; however, it does not include the costs of test and processing equipment as well as costs for modifications requested by the customer. Costs for further samples for which the supplier is responsible shall be borne by the supplier.
2. Unless agreed otherwise, the moulds produced for the customer by the supplier itself or by a third party engaged by the supplier are and shall remain the property of the supplier. Moulds shall only be used for orders of the customer as long as the customer fulfils its payment and acceptance obligations. The supplier is obligated to replace these moulds free of charge only if this is necessary to produce the quantity promised to the customer. The supplier’s obligation to retain the moulds shall expire two years after the last parts produced from the mould have been delivered and after notifying the customer.
3. Should the customer become the owner of the moulds in line with an agreement, title shall be transferred to the customer once the purchase price
for the moulds has been paid in full. As a substitute for transferring the moulds to the customer, the moulds shall be stored
on the customer’s behalf. Irrespective of the customer’s statutory right to claim possession and of the service life
of the moulds, the supplier is entitled to exclusive possession of the moulds until the termination of the contract. The supplier must
mark the moulds as third-party property and – at the request of the customer – insure said property at the customer’s expense.
4. If the customer’s own moulds as defined in clause 3 are used and/or moulds are supplied on loan by the customer, the supplier’s liability concerning storage and maintenance shall be limited to the level of care exercised in its own business. Costs for maintenance and insurance shall be borne by the customer. The supplier’s obligations shall expire if
the moulds are not collected within a reasonable period of time following the completion of the order and corresponding notification of the customer. The supplier
shall in all cases have the right to retain the moulds should the customer have failed to meet its contractual obligations in full.
X. Provision of materials
1. If materials are supplied by the customer, they are to be delivered in good time and in perfect condition at the customer’s expense and risk and with an appropriate excess quantities of at least 5%.
2. If these requirements are not met, the delivery time shall be extended by a reasonable period of time. Except in cases of force majeure,
the customer shall bear any resulting additional costs, including those arising from interruption of production.
XI. Industrial property rights and defect of title
1. If the supplier is to supply items based on drawings, models, samples or using parts provided by the customer, the customer warrants that no property rights of third parties in the destination country of the items are breached as a result of this. The supplier shall inform the customer of any rights of which it has knowledge. The customer must release the supplier from any claims of third parties and must reimburse any damages incurred. If a third party prohibits production or supply by the supplier by invoking a property right it holds, the supplier shall – without reviewing the legal situation – be entitled to stop work until the legal situation has been clarified by the customer and the third party. Should it no longer be
reasonable for the supplier to continue with the order on account of the delay, the supplier shall be entitled to withdraw from the contract.
2. Any drawings and samples provided to the supplier which have not led to an order shall be returned on request; if no such request is made, the supplier shall be entitled to destroy the items provided three months after the quotation has been submitted. This obligation applies to the customer accordingly. The party authorised to destroy the items must inform the contracting partner of its intention to destroy them well in advance
of this taking place.
3. The supplier holds copyrights and, if applicable, industrial property rights, particularly all rights of use and exploitation, to the models, moulds, equipment, drafts and
drawings which it has designed or which a third party has designed on its behalf.
4. For all other defects of title, section VI applies accordingly.
XII. Place of performance and legal venue
1. The place of performance is the location of the supplier’s premises.
2. Legal venue is – at the supplier’s option – either the supplier’s headquarters or the registered office of the customer, including for proceedings regarding documentation, bills of exchange and cheques.
3. German law shall apply exclusively. Application of the United Nations Convention of 11 April 1980 on contracts for the national sale of goods (German Civil Code 1989 p. 586) for the Federal Republic of Germany (German Civil Code 1990 p. 1477) is excluded.
Erlemann & Huckenbeck GmbH & Co KG
Elberfelder Str. 122, D-42477 Radevormwald/Germany
Telephone: +49-2195-9125-0 Fax: +49-2195-9125-50