Terms & Conditions

Terms and Conditions of Sale – ViscoTec Pumpen- u. Dosiertechnik GmbH

 

1. General

These General Terms and Conditions of Sale shall apply exclusively in business transactions with our customers who are entrepreneurs within the meaning of Section 14 BGB (German Civil Code), an association, a foundation, a legal entity under public law or a special fund under public law. We shall only deliver in accordance with the terms and conditions of sale, payment and delivery below. The General Terms and Conditions of Sale (GTC) shall apply as amended for future contracts concerning the sale and delivery of products with the same customers. Amendments shall be declared in the same way that these GTC are declared. Our GTC shall apply exclusively. General terms and conditions of the purchaser that deviate from, are in conflict with, or add to these GTC shall only become a component part of the contract if and to the extent that we have expressly given our consent to their validity. This consent requirement shall apply in every case; for example, even if we make a delivery to the customer without reservation in full knowledge of the GTC of the customer. Individual agreements made with the supplier in individual cases (including ancillary agreements, additions and amendments) shall have priority over these GTC in every case. Subject to counterevidence, the content of such agreements shall be determined by a written contract or our written confirmation.

References to the validity of statutory provisions shall be purposes of clarification only. Unless directly amended or expressly excluded in these GTC, statutory provisions shall thus apply even without such clarification.

 

2. Conclusion of contract, subject matter of the contract

Our quotation shall not be binding unless we have declared a validity period to the customer in our quotation. This shall also apply to parts to parts of the quotation such as prices and delivery times, which are independently subject to variation. Orders placed by the customer shall therefore only be deemed to be accepted if they have been confirmed by us in written within 14 days.

If we provide an expressly binding quotation including a validity period, the contract can only come into effect through formal acceptance by the customer within the validity period. We shall no longer be bound to our quotation once this period has lapsed. Acceptance by the customer shall then constitute an offer which we can accept by written confirmation.

Verbal ancillary agreements, promises, amendments or additions to the written contract, to the order confirmation or to these terms and conditions can only be agreed to be in effect by our managing directors or employees with written authorisation. If such agreements are made between the customer and unauthorised employees, they shall become binding when we confirm them in writing.

All documentation relevant to the quotation, such as illustrations, drawings, statements of weight, dimension, power consumption and performance data are only approximations unless we expressly refer to them as being binding. We shall reserve proprietary rights and copyrights to cost estimates, illustrations and other documentation. They may not be made accessible to third parties. We shall not allow a third party to access any plans marked as confidential by the customer without the customer’s permission.

 

3. Scope of delivery and preliminary work

The scope of delivery shall be determined by our written order confirmation or our binding quotation. Technical modifications shall be permissible as long as they do not impair the suitability of the product for the intended purpose.

Any safety or protective devices or other type of equipment that is required by law or stipulated by the authorities will only be included in the scope of delivery if this is explicitly agreed upon.

In any case, even if we have undertaken assembly and commissioning at a lump-sum price, the following in particular shall not be included in the delivery: Groundwork and masonry work, lifting gear, scaffolding, roof flashing, materials and installation work, connecting heating, gas, fresh water, drainage or power, or the installation of oil and gas burners, fire extinguishing and electrostatic systems and the like.

The customer shall be responsible for the timely provision of the preliminary work, which shall also include unpacking the delivery.

 

4. Delivery, transfer of risk, acceptance

Delivery shall be made ex works without loading. If collected by the customer, risk shall transfer to the customer upon provision of the parts for delivery and, in the event of delivery, upon handover to the freight company, forwarding company or other person or body otherwise tasked with shipping the goods. This shall also apply even if we have assumed other payments or services such as shipping costs or delivery and installation.

Where no special agreement has been made, the parts for delivery shall be sent on behalf of the customer and at their own expense and risk. Unless otherwise agreed, we shall be entitled to determine the type and method of shipment (in particular the transport company, route and packaging). At the request of the customer, as part of the order and at the expense of the customer, we shall insure the consignment against theft, breakage, transport, fire and water damage as well as against other insurable risks.

If the shipment is delayed due to circumstances for which we are not responsible, risk shall transfer to the customer when the customer is informed that the goods are ready for dispatch.

 

5. Delivery period

Our delivery period shall only begin upon receipt of our order confirmation but not before the provision of documentation, permits and approvals to be supplied by the customer and upon receipt of agreed payment, guarantee, and so on. Adherence to the delivery period shall be a requirement for the fulfilment of the contractual obligations of the purchaser.

The delivery period shall be deemed to have been adhered to if the deliverable has left the factory or readiness for dispatch has been announced prior to the lapsing of the delivery period. The delivery period shall be given a reasonable extension should unforeseeable obstacles arise that we have been able to avoid despite have taken care that is reasonable for the circumstances of the event. Such obstacles shall include unforeseeable business disruptions, strikes, lockout, unavoidable shortages of energy or raw materials. This shall apply regardless of whether these circumstances arise in our factory or with our sub-suppliers.

We shall also not be responsible for the aforementioned circumstances if they arise during an existing delay. We shall inform the customer of the occurrence and the foreseeable duration of such disruptions immediately. The delivery period shall be extended by a duration appropriate to the circumstances.

If, as a result of these circumstances, the fulfilment of the contract becomes impossible or no longer economically reasonable for us or our customer, both we and our customer may rescind from the contract in part or in full. The customer shall have no claims for compensation for damages as a result of rescinding from the contract for this reason. If we exercise this right to rescind from the contract, we shall immediately inform the customer of this upon finding the scope of the event and also if an extension of the delivery data was initially agreed with the customer.

 

6. Default in delivery, storage costs in the event of default in acceptance

If the customer incurs damage for which we are responsible as a result of slight negligence, the customer shall be entitled to demand compensation for delayed completion. This compensation shall amount to 1/2 of the value of the part of the complete delivery that cannot be used on time or for the intended purpose as a result of the default for every complete week of default. Compensation for delayed completion shall be limited to 10 weeks. Our liability according to Items 9 and 11 of these terms and conditions shall remain unaffected.

If binding agreed delivery dates are not adhered to, the customer undertakes to first set us a reasonable grace period in writing before being entitled to rescind from the contract once said grace period has lapsed. The customer may, however, dispense with this obligation to set a grace period if a fixed-date transaction was agreed.

If shipment is delayed at the request of the customer, the storage costs incurred shall be charged to the customer starting one month after readiness for dispatch was announced. If, however, the goods are stored in our factory, this amount shall be 1/2 of the invoice amount for each month. Our right to prove higher damage and our statutory claims (in particular for reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum is to be offset against further monetary claims. The customer shall be permitted to furnish proof that we have not incurred any damages or the amount is significantly lower than the aforementioned lump sum. After the setting and fruitless expiry of an appropriate period of grace we shall, however, be entitled to otherwise dispose of the deliverable or to deliver the goods to the customer within a reasonably extended delivery period. We shall immediately inform the customer of this process.

 

7. Prices and payment

Prices shall apply ex works, excluding packaging. Packaging materials shall only be taken back if the customer bears the costs for their return. In Germany, statutory value added tax shall be added to the agreed prices. Our invoices shall be payable immediately without discount. Payment dates specified on the invoice shall not delay maturity.

Should there be a rise in material or labour costs before the delivery date, we shall be entitled to pass on part of the cost increase to the price on the basis of our original price calculation.

If, after conclusion of the contract and prior to delivery of the goods, we should become aware of circumstances that give rise to doubt about the creditworthiness of the customer at the time of entering into the contract, we shall be entitled to request, at our discretion, matching payment with delivery or an appropriate security payment, should the doubt still exist up to the delivery time. If the customer refuses concurrent payment or refuses to provide the requested security deposit, we shall be entitled to rescind from the contract either in part or in full. This shall also apply in the event of a legal change in borrower if there are justified doubts concerning the creditworthiness of the new borrower.

The customer shall not be entitled to set-off against our claims unless the counterclaims of the customer are expressly acknowledged by us or are legally established

 

8. Retention of title

Current account

The delivery item shall remain our property until the fulfilment of all claims arising from the business relationship with the customer. These shall include any future claims that may arise, also those from contracts concluded concurrently or later, as well as all balance claims from any current account due to us, now or in the future.

 

Insurance and maintenance

Until the transfer of title, the customer must take care of the goods subject to retention of title and insure these at their own cost and to our benefit against fire, water and theft damage, with the insured sum being adequate to cover the replacement value. The customer must prove the conclusion of such an insurance policy on request. All claims against the insurer arising from this contract with regard to the goods delivered subject to retention of title shall be deemed to be assigned to us. We shall accept the assignment.

Maintenance and inspection work that become necessary shall be carried out in a timely manner by the customer at their expense.

 

Resale

The customer shall be entitled to resell the goods during the ordinary course of business provided that they are not in default of payment. In the event of resale and further processing, the property right of the customer shall be reserved against the third party.

The customer hereby assigns to us all claims from the relevant legal transaction to the amount of our invoice value, including all ancillary rights, incurred against the purchaser or a third party arising from the resale. This shall be irrespective as to whether the retained goods are resold without or after processing. We shall accept the assignment. The customer shall also be entitled to collect these claims after assignment until revoked by us; this revocation shall be permissible at any time. We undertake not to collect claims as long as the customer duly fulfils the payment obligations. Upon request, the customer shall be obligated to disclose the assignment to their purchasers, provide us with the information necessary to exercise our rights against the purchasers and hand over the necessary documentation.

 

Further processing, intermixture and combination

The processing of the goods subject to retention of title shall be carried out for us as the manufacturer within the meaning of Section 950 BGB, but without any obligation for us. The processed goods shall be considered as goods subject to retention of title within the meaning of these provisions. If the goods subject to retention of title are processed or irreversibly intermixed with other objects not belonging to us, we shall acquire joint ownership of the new item in the proportion of the invoice value of the goods subject to retention of title to the invoice value of the other goods used at the time of processing or intermixture. The resulting joint ownership rights shall be considered as goods subject to retention of title within the meaning of these provisions.

If our goods are combined or intermixed with other movable property to become a single item, and the other item is to be regarded as the main item, it shall be agreed that the customer shall transfer joint ownership to us proportionately if the main item belongs to the customer. We shall accept this transfer. In all other respects, the same shall apply to the item resulting from the processing, combination and intermixture as to the goods subject to retention of title.

If the retained goods are integrated or installed on the premises of a third party or otherwise, the customer shall assign to us in advance the first part of their payment claim for the services or their claim on whatever legal grounds, to the amount of the invoice value of the retained goods. We shall accept the assignment.

Should the value of the existing securities to which we are entitled exceed our claim by more than 10% in total, we shall undertake to release securities at our own discretion if requested by the customer or any third party affected by the overcollateralisation.

 

Seizures and interventions by third parties

The customer may neither pledge nor collateralise the deliverable. The customer must immediately inform us in the event of pledges as well as seizures or other disposals by third parties.

 

Surrender of goods

If material contractual obligations are breached, in particular in the event of default in payment, we shall be entitled to take back the goods after having set a reasonable notice period or having issued a warning. Taking back, requesting the return of or seizing the goods subject to retention of title shall represent a rescission from the contract and shall obligate the customer to surrender the goods subject to retention of title. For this purpose, the customer must irrevocably grant us or our officers access to the premises where the goods subject to retention of title are located. Until surrendered, the customer must store the goods owned or jointly owned by us for us separately from other goods, label said goods as our (joint) property, abstain from any disposition and provide us with a list of the (joint) property.

Once we have taken back the goods, we shall be entitled to resell said goods by private contract or put them up for auction without first setting a deadline. The return of the retained goods shall be effected to the amount of the proceeds obtained, after deduction of the realisation costs, not exceeding, however, the agreed delivery costs. Further claims for compensation, in particular regarding lost earnings, shall remain reserved.

 

9. Warranty

Notice of defects

Upon receipt, the customer must immediately carefully inspect the deliverable and immediately inform us of defects in writing once discovered (by fax or e-mail shall also be permitted).

 

Supplementary performance

If the event that notices of defects are justified, we shall be entitled to choose to either remedy the defect or replace it free of charge within a reasonable period. Our right to refuse supplementary performance under statutory requirements shall remain unaffected.

We shall be entitled to make the supplementary performance due dependent on the customer paying the purchase price owed. However, the customer shall be entitled to withhold a portion of the purchase price proportionate to the defect.

The customer must provide us with the time and opportunity necessary for the supplementary performance due and shall in particular provide the goods in question for inspection purposes. In the event that a replacement is delivered, the customer/purchaser must return the defective object to us in accordance with the statutory regulations. Supplementary performance shall include neither removing the defective object nor reinstalling it unless we were originally obligated to install it.

The customer shall only be entitled to remedy the defect themselves or through a qualified third party and demand reimbursement of the costs from us, if circumstances make such action necessary; i.e. urgent cases of danger to operational safety and the prevention of excessive damages, whereby we should be informed of this immediately, or if we are in default in remedying the defect.

We shall bear the expenses required for the purposes of inspection and supplementary performance, in particular transportation, road, labour and material costs (not removal and installation costs) if there actually is a defect. However, if the customer makes a request for the remedying of a defect from the customer without it being justified, we may demand that the customer compensate us for the costs incurred if the customer has recognised or has failed to recognise as a result of negligence that the purchased item is not defective and that they are responsible for the problems.

We shall not be liable for the consequences of modifications and/or maintenance work carried out on the goods by the customer or third parties without authorisation, for example.

 

We may refuse to remedy defects if the customer has breached contractual obligations or has not fulfilled them in violation of the contract. The customer shall be obligated to provide services for the supplementary improvement or replacement deliver to the same extent as in the main order. Replaced parts shall become our property.

Failure of supplementary performance

The customer shall have the right to rescind from the contract or demand the reduction of the purchase price if supplementary performance is unsuccessful after two attempts or if we earnestly or finally reduce supplementary performance despite having been set an appropriately long deadline by the customer. If the customer rescinds from the contract, we may demand compensation for use from the customer in accordance with Sections 346 and 347 BGB.

 

Exclusion of warranty

Our warranty obligations shall no longer apply in the event of unsuitable or improper use as well as in the event of defects that have been caused by incorrect assembly or commissioning or third parties not commissioned by us. Neither shall we provide warranty in events of natural deterioration, incorrect or careless treatment, especially excessive loading, if unsuitable equipment and substitute materials are used, if the filling material, its composition or manufacturer source is changed or if the filling material is free of air and gas bubbles in the material supply system. We shall furthermore not grant warranty in cases of inadequate construction work not carried out by us, unsuitable foundation preparation, chemical, electrochemical or electrical interference, unless these are attributable to negligence on our part.

 

10. Limitation

Contrary to Section 438, Paragraph 1, No. 3 BGB, the general period of limitations for claims resulting from defects of quality and title shall be one year from delivery. If acceptance is agreed, the period of limitations shall begin upon acceptance.

If, however, the goods are a construction or object that has been used for a construction in accordance with its typical usage and has caused said construction to be defective (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (Section 438, Paragraph 1, No. 2 BGB). Special statutory provisions for tangible third-party surrender claims (Section 438, Paragraph 1, No. 1 BGB), in the event of fraud by the seller (Section 438, Paragraph 3 BGB) and for claims in supplier recourse in the event of final delivery to a consumer (Section 479 BGB) shall remain unaffected.

The aforementioned limitation periods of sales law shall also apply to contractual and non-contractual claims for compensation for damages of the customer that are based on a defect of the goods unless the application of the regular statutory limitation period (Section 195 and 199 BGB) would lead to a shorter limitation period in the individual case. In any case, the limitation periods of the German Product Liability Act shall remain unaffected. Otherwise the statutory limitation periods shall apply exclusively to claims for compensation for damages of the customer.

 

11. Liability

Unless specified otherwise in these GTC including the following provisions, in the event of a breach of contractual and non-contractual obligations, we shall be liable in accordance with the applicable statutory regulations.

We shall be liable to provide compensation for damages in the event of wilful intent and gross negligence – regardless of the legal grounds.

In the event of ordinary negligence, we shall only be liable for

1. a) damages arising from injury to life, limb or health,
2. b) damages arising from the breach of a material contractual obligation (an obligation that must be fulfilled for the proper execution of the contract to be possible and in which the contracting partner routinely trusts and can trust to be adhered to); however, in this event, our liability shall be limited to compensation for the foreseeable damage that typically occurs.

The limitations of liability arising from this Item shall not apply if we have fraudulently concealed a defect or assumed a guarantee for the properties of the goods. The same shall apply to claims of the customer in accordance with the German Product Liability Act.

The customer may only rescind from or terminate the contract due to a breach of obligation that does not consist of a defect if we are responsible for the breach of obligation. The customer shall not have a free right to termination (in particular in accordance with Section 651 and 649 BGB). In all other respects, the statutory requirements and legal consequences shall apply.

In the event of a claim for liability for defects according to Item 9 or due to a breach of duty according to the aforementioned provisions in Item 11, a contributory negligence on the part of the customer shall be appropriately considered.

No change of burden of proof to the disadvantage of the customer shall be connected with the preceding provisions.

12. Contract documents, property rights

We reserve our right of ownership and copyright over all contract documents. The customer may not copy or pass on these documents to a third party without our permission, even when these documents are not marked confidential. This also applies to patentable inventions and utility models etc., even if they have not yet been registered. The reproduction of our products is only permitted with the written approval of the management.

 

13. Place of fulfilment, place of jurisdiction, applicable law

If the customer is an entrepreneur within the meaning of HGB (German Commercial Code), a legal entity under public law or a special fund under public law, our company headquarters in Tögig shall be deemed to be agreed to be the place of fulfilment and the place of jurisdiction for all disputes arising from the contractual relationship. However, we shall also be entitled to file a suit in the customer’s place of jurisdiction.

Our legal relationships with our customers shall be subject solely to the law of the Federal Republic of Germany, to the exclusion of the UN Sales Law (CISG).

 

14. Severability clause

Should individual provisions of this contract be void or impossible to execute or become void or impossible to execute once the contract has been concluded, this shall not affect the validity of the remaining provisions of the contract. The provision that is void or impossible to execute shall be replaced by a provision that is valid and executable. The effects of said provision shall come as close as possible to the economic objective that the contracting parties had intended with the provision that is void or impossible to execute.

 

As at: October 2016

Terms and Conditions of Purchase – ViscoTec Pumpen- u. Dosiertechnik GmbH

 

1. Scope of validity

These General Terms and Conditions of Purchase shall apply exclusively to all purchases from entrepreneurs within the meaning of Section 14 BGB (German Civil Code), an association, a foundation, a legal entity under public law or a special fund under public law. Our Terms and Conditions of Purchase shall apply exclusively. General terms and conditions or terms and conditions of sale of the supplier that deviate from, are in conflict with, or add to these terms and conditions shall only become a component part of the contract if and to the extent that we have expressly given our consent to their validity.

Individual agreements made with the supplier in individual cases (including ancillary agreements, additions and amendments) shall have priority over these Terms and Conditions of Purchase in every case. Subject to counterevidence, a written contract or our written confirmation shall be authoritative for the content of such agreements.

References to the validity of statutory provisions shall be purposes of clarification only. Unless indirectly amended or expressly excluded in these Terms and Conditions of Purchase, statutory provisions shall thus apply even without such clarification.

 

2. Order

Quotations issued to us must use the same order quantity, product designation, condition of goods and delivery times as stated in our enquiry and shall be free of charge and non-binding for us. The supplier shall make specific reference to changes to the quotation in relation to our enquiry.

Orders shall only be binding for us if we have accepted them within 14 days. If the supplier modifies the order, a contract shall only come into existence if we have declared our consent to said modification.

 

3. Deliveries

The agreed delivery dates shall be fixed dates. If the supplier is in default, we may choose whether to demand subsequent delivery and compensation for damages caused by the delayed delivery or compensation for damages caused by non-fulfilment.

In the event of force majeure, the arrangement of official measures, strikes, internal unrest that affect our operation and that we are unable to remedy in good time using reasonable means, we shall not be held in default in acceptance. This shall not cause the contract to terminate automatically. We shall undertake to inform the supplier of an obstacle of this nature and adjust our obligations to the changed circumstances in good faith.

The supplier alone shall be responsible for the correct packaging and the correct shipment of the goods. We shall only assume transport costs where this has been agreed and even then only for the lowest priced type of dispatch. We shall not accept transport costs for partial deliveries not accepted in writing.

If we return packaging materials to the supplier free from transportation charges, we shall receive credit for this in the amount of the invoice amount accrued for this. The risk for possible loss and possible deterioration of the goods shall transfer to us upon delivery to the place of fulfilment. If an acceptance test has been agreed, this shall be authoritative for the transfer of risk. In all other respects, the statutory provisions of contract law shall apply accordingly in the event of an acceptance test. Handover or acceptance shall be deemed to have been made if we are in default in acceptance.

 

4. Payment

The agreed prices shall be fixed prices.

We shall make payments, subject to agreements made and recorded in writing to the contrary, as follows:

With a 3% discount up to 14 days of receipt of the goods and without deductions 30 days of receipt of the goods and invoice.

However, our payments shall be made under reservation and shall not constitute recognition of terms and conditions of purchase of the supplier. In other respects, these shall not apply as confirmation that a delivery has been made correctly.

Claims against us may not be assigned to third parties without our express consent. The provision of Section 354a HGB shall not be affected by this non-assignment clause.

 

5. Warranty, default, limitation

In the event of liability for defects of the delivered goods, we shall be entitled to choose whether to reduce the purchase price or to demand subsequent improvement or replacement delivery, or to demand compensation for damages caused by non-fulfilment or to rescind from the contract in part or in full.

Unless specified otherwise below, the statutory provisions shall apply to our rights in the event of defects of quality and title of the goods (including incorrect or insufficient delivery and incorrect assembly, incorrect assembly, operating or user instructions) and in the event of other breaches of obligation by the supplier.

In accordance with the statutory provisions, the supplier shall in particular for liable for the goods having the agreed quality when risk is transferred to us. The agreement of the quality shall always be the product descriptions that are the subject matter of the contract in question – in particular through indication or reference in our order – or have been included in the contract in the same way, such as these Terms and Conditions of Purchase. It shall not make a difference whether the product description comes from us, the supplier or the manufacturer.

Contrary to Section 442 Paragraph 1, Item 2 BGB, we shall have claims for defects unreservedly if the defect remains unknown to us upon conclusion of the contract as a result of gross negligence.

The commercial duty to examine and to notify defects shall be governed by the statutory provisions (Sections 377, 381 HGB) subject to the following condition: Our duty to examine shall be restricted to defects which come to light during our incoming goods inspection through external survey including the shipping documents, as well as during quality control using a sampling procedure (e.g. transport damage, incorrect delivery and short delivery). If an acceptance test has been agreed, there shall be no duty to examine. In all other respects, it shall depend on the extent to which an inspection taking into account the circumstances of the individual case is feasible according to the proper course of business.

Our obligation to give notice of defects discovered at a later point in time remains unaffected.

The costs spent by the supplier for the purpose of inspection and subsequent fulfilment (including any removal and installation costs) shall be borne by the customer if it is discovered that there actually was no defect. Our liability for compensation for damages in the event that of an unjustified request for the remedying of a defect shall remain unaffected; however, in this respect we shall only be liable if we recognised or failed to recognise as a result of negligence that there was no defect.

If the supplier fails to fulfil their obligation to subsequent performance – at our discretion by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery) – within an appropriate period set by us, we may remedy the defect ourselves and demand compensation from the supplier for the costs necessary for this or a corresponding advance payment. If subsequent performance by the supplier is unsuccessful or unreasonable for us (e.g. due to particular urgency, endangerment of operational reliability or impending occurrence of disproportionate damages), there shall be no requirement to set a deadline; we shall inform the supplier of such circumstances immediately, in advance if possible.

In all other respects, in the event of a defect of quality or title, we shall be entitled to reduce the purchase price or rescind from the contract in accordance with the statutory provisions. Furthermore, in accordance with the statutory provisions, we shall have claim to compensations for damages and reimbursement of expenses.

If the supplier is in default, we may demand a contractual penalty in the amount of 1% of the net price per completed calendar month; however, this shall be no higher than 5% of the net price for the goods delivered late. We shall be entitled to demand the contractual penalty in addition to fulfilment and as the minimum amount of compensation for damages due from the seller in accordance with the statutory provisions; the exercising of claims for further damages shall remain unaffected. If we accept the delayed performance, we shall enforce the contractual penalty by the final payment at the latest. Unless otherwise agreed, the warranty period shall be two years from receipt of the goods by us.

 

6. Supplier recourse

We shall also be entitled without restriction to our statutorily determined rights of recourse within a supplier chain (supplier recourse according to Sections 478 and 479 BGB), as well as the claims for defects. We shall in particular be entitled to demand from the supplier precisely the method of subsequent fulfilment (subsequent improvement or replacement delivery) that we owe to our customer in the individual case. Our statutory right to choose (Section 439, Paragraph 1 BGB) shall not be restricted by this.

Before we acknowledge or fulfil a defect claim exercised by our customer (including reimbursement of expenses according to Sections 478, Paragraph 2 and 439, Paragraph 2 BGB), we shall inform the supplier and ask for a written statement, giving a brief outline of the facts. If the statement is not provided within a reasonable period of time and also no mutual resolution is brought about, the claim for defects actually granted by us shall be deemed to be owed to the customer; in this case, the supplier shall be responsible for supplying counterevidence.

Our claims arising from supplier recourse shall also apply if the goods were further processed, such as installed in another product, before we sold them to a consumer or one of our customers.

 

7. Manufacturer liability

If the supplier is responsible for product damage, the supplier shall indemnify us against third-party claims if and when the cause falls within their sphere of control and organisation and they themselves are liable in relation to third parties.

As part of this indemnification obligation, the supplier shall reimburse expenses according to Sections 683 and 670 BGB arising from or in relation to a third-party claim including recall campaigns carried out by us. We shall inform the seller of the subject and scope of the recall campaigns, if possible and reasonable, and give the seller opportunity to comment. Further statutory claims shall remain unaffected.

The supplier must take out and maintain a product liability obligation insurance policy with flat-rate coverage of at least EUR 10 million per personal/property damage.

 

8. Non-disclosure and retention of title

We shall reserve proprietary rights and copyrights to figures, plans, drawings, calculations, application instructions, product descriptions and other documentation. Such documentation must only be used for the contractual performance and must be returned after completion of the contract. This documentation must not be disclosed to third parties even after termination of the contract. The non-disclosure obligation shall only cease to apply if and to the extent that knowledge contained within the documentation provided is general knowledge.

The preceding provision shall apply accordingly to materials (e.g. software, finished and semi-finished products) as well as to tools, patterns, samples and other objects that we provide the supplier for production. So long as they are not processed, such items must be stored separately at the expense of the supplier and sufficiently insured against destruction and loss.

Processing, intermixture or combination (further processing) by the customer of items provided shall be carried out for us by the supplier. The same shall apply in the event that we further process the goods delivered with the result that we are considered to be the manufacturer and acquire ownership of the product in accordance with statutory provisions upon further processing at the latest.

The goods must be assigned to us regardless of the payment of the price. If, in an individual case, we accept an offer from the seller for the assignment of goods subject to payment of the purchase price, the reservation of title of the seller shall no longer apply upon payment of the purchase price for the delivered goods at the latest. During the ordinary course of business, we shall also be entitled to resell the goods before paying the purchase price subject to advance assignment of the claim arising from this (alternatively, validity of the simple reservation of title extended to the resale). In any event, all other forms of reservation of title shall be excluded, in particular expanded and forwarded reservation of title and reservation of title extended to further processing.

 

9. Liability

Unless specified otherwise in these Terms and Conditions of Purchase including the following provisions, in the event of a breach of contractual and non-contractual obligations, we shall be liable in accordance with the applicable statutory regulations.

We shall be liable to provide compensation for damages in the event of wilful intent and gross negligence – regardless of the legal grounds. In the event of ordinary negligence, we shall only be liable for

1. a) damages arising from injury to life, limb or health,
2. b) damages arising from the breach of a material contractual obligation (an obligation that must be fulfilled for the proper execution of the contract to be possible and in which the contracting partner routinely trusts and can trust to be adhered to); however, in this event, our liability shall be limited to compensation for the foreseeable damage that typically occurs.

The limitations of liability arising from this Item shall not apply if we have fraudulently concealed a defect or assumed a guarantee for the properties of the goods. The same shall apply to claims of the supplier in accordance with the German Product Liability Act.

The supplier may only rescind from or terminate the contract due to a breach of obligation that does not consist of a defect if we are responsible for the breach of obligation. The supplier shall not have a free right to termination (in particular in accordance with Section 651 and 649 BGB). In all other respects, the statutory requirements and legal consequences shall apply.

 

10. Choice of law, place of fulfilment and place of jurisdiction

The exclusive place of jurisdiction shall be Mühldorf am Inn, Germany.

The place of performance shall be the receiving office specified by us.

These Terms and Conditions of Purchase and all legal relationships between us and the supplier shall be subject to the law of the Federal Republic of Germany, to the exclusion of international uniform law, in particular the UN Sales Law.

 

11. Severability clause

If, for whatever reason, a provision in our Terms and Conditions of Purchase is or becomes void either in part or in whole, the validity of the remaining provisions shall not be affected. Void provisions shall be replaced by others which most closely reflect the required business purpose.

 

As at: October 2016