These General Terms and Conditions of Delivery and Payment (“GTC”) shall apply to all goods and services (hereinafter collectively known as “deliverables”) that LWB Automation GmbH (“LWB”) provides entrepreneurs as defined in section 310 (1) of the German Civil Code (BGB) (“client”). Divergent conditions of the client especially his terms of sale or general terms and conditions shall also not apply if LWB does not expressly object to their application and unreservedly provides deliverables while being aware of conflicting or divergent conditions of the client.
2. The client’s acceptance of a deliverable provided by LWB is enough to signify the client’s consent to the application of this AGB.
3. Part A. “General terms and conditions of sale and delivery” of the GTC applies to all deliverables as set out in clause 1 of the GTC. Additionally, the conditions contained in part B shall apply to certain deliverables.
4. The GTC shall also apply to all future transactions of LWB with the client.
5. Oral collateral agreements have not been entered into. All contractual amendments must be made in writing. Any modification of this provision must also be made in writing.
1.1 The offers of LWB are always non-binding.
1.2 LWB’s written acknowledgement of order shall determine the scope of delivery.
1.3 Protective equipment shall only be provided to the extent that is expressly agreed in each individual case.
1.4 The client is obligated to treat as confidential all information that he receives from LWB. This particularly applies to technical and business information; business plans; commercial and financial information; designs and documents, be they in oral or written form or in form of products or product samples (hereinafter:
“confidential information”). The client is obligated not to allow third parties access to the information, to prevent the access of third parties to it and to use the confidential information within the scope of the purpose of each contractual relationship. The client is obligated to treat the confidential information that came to his knowledge during the contractual relationship with the same diligence as he would his own confidential information, but at least with the diligence of a prudent businessman.
1.4.1 This confidentiality obligation shall not apply to information
a) that the client was already aware of or was in his possession before LWB discloses same;
b) that the client received from a third party without the third party having acquired or forwarded the information in breach of a confidentiality obligation;
c) that are public knowledge not resulting from a breach of the confidentiality obligations from the contractual relationship between the parties;
d) provided LWB gives prior written permission to disclose said information; or
e) provided it must be released in line with statutory obligations or as a result of a judicial ruling.
The client shall bear the burden of proof for the existence of these exceptions.
1.4.2 The client is obligated to only communicate confidential information to the employees who need it to fulfil the obligations from the contractual relationship between the parties. To the extent permitted by law, the client shall impose a confidentiality obligation on his employees – even beyond the duration of the employment relationship.
1.5 LWB reserves the right to make design changes to the delivery item/s.
1.6 If a contract does not materialise, the client is obligated, at LWB’s request, to promptly release the offer documents to LWB at his own expense.
1.7 LWB is entitled to commission third parties as subcontractors for the fulfilment of all or some contractual obligations.
1.8 Planning task fulfilment shall be specified by LWB. To the extent that performance shall also occur at the client’s location, LWB shall have sole authority to instruct its staff. The employees and subcontractors of LWB shall not be integrated into the company of the client. The employees and subcontractors mobilised by LWB shall not be subject to any directives of the client in carrying out their duties.
1.9 If not otherwise stipulated in the offer documents, LWB shall exclusively deliver FCA (INCOTERMS 2010).
2.1 The delivery period begins with LWB dispatching the acknowledgment of order. Compliance with the delivery period requires the timely receipt of all documents to be delivered by the purchaser, all necessary authorisations, clearances, the timely clarification and authorisation of the plans, compliance with the agreed payment terms and other obligations as well as the timely receipt of the agreed advance. If these requirements are not fulfilled on time, the delivery period shall be extended accordingly.
2.2 The delivery period is complied with if the delivery items have left the LWB factory before the agreed delivery deadline. If delivery is delayed due to the fault of the purchaser, the delivery period shall be deemed complied with upon notification of readiness for dispatch within the agreed delivery period.
2.3 If non-compliance with the delivery period can be traced back to force majeure, especially mobilisation, war, riots, strikes or lockout at LWB or other circumstances that, in accordance with general principles of law, are not the fault of LWB, the delivery period shall be extended
appropriately. The aforementioned circumstances are also not the fault of LWB if they occur during an already existing default. In important cases, LWB shall notify the purchaser of the beginning and end of such hindrances as soon as possible.
2.4 If dispatch or delivery is delayed at the purchaser’s request, the expenses arising from storage, however not less than half a percent of the net value of the delivery item in question, can be charged to the purchaser for each month commenced, if storage occurs in the factory of LWB. The storage costs thus incurred shall be limited to 5% of the net order value, except evidence of higher costs is provided by LWB. After the setting and unsuccessful expiration of an appropriate deadline, LWB is entitled to otherwise dispose of the delivery item and supply the purchaser within a fair, extended period.‘
2.5 Compliance with the delivery deadline requires the fulfilment of the contractual obligations of the purchaser.
2.6 If the purchaser does not accept the delivery at the contractually agreed time, he nevertheless has to make the payments dependent on the delivery at the agreed due dates as though the delivery occurred as agreed upon.
3.1 The prices of LWB are all quoted plus the respective VAT and apply to delivery ex works excluding loading, packaging, installation and commissioning and all other fees.
3.2 Upon proof by LWB, the client must reimburse LWB at the applicable hourly rates for such services that become necessary due to wait times or changes to the scope of service attributable to the client.
3.3 If nothing different arises from the contract of the parties, LWB invoices are due for payment without deduction within 10 days of the client receiving the invoice. A discount shall not be granted. The client is obligated to make payments at his expense and risk.
3.4 Payment dates are complied with if the amount to be paid is available to LWB at the due date. Checks and bills of exchange are accepted only as conditional payment.
3.5 Instalments shall first offset outstanding, older claims of LWB against the client.
4.1 LWB reserves the right of ownership to the delivery items till the fulfilment of all legitimate claims against the purchaser. A pledge or a chattel mortgage is hitherto prohibited and resale to resellers is only permitted in the regular course of business under the condition that the reseller receives payments from his clients. The purchaser shall bear any costs of enforcing the right of ownership.
4.2 In case of a seizure, confiscation or other dispositions by a third party, the purchaser is obligated to promptly notify LWB of this.
4.3 In case of a permissible sale, the proceeds of sale shall take the place of the delivery items, to which LWB retains title up to the amount of our total claim. Invoice amounts thus received by the purchaser are to be paid to LWB immediately.
4.4 The client is not permitted to transfer the claims from the resale to third parties.
4.5 LWB can withdraw the authorisation for resale and collection of the claims transferred to LWB in case the client defaults on or stops to make payments as well as in case of an application to commence insolvency proceedings or in other cases of impaired creditworthiness and trustworthiness of the client that risk the fulfilment of the claims to which LWB is entitled (“enforcement event”). If the authorization to collect claims is withdrawn, the client is obligated to immediately inform his buyers of the assignment of claims to LWB and to transfer to LWB all information and documents required for collection.
4.6 LWB is entitled to insure the delivery items, at the purchaser’s expense, against theft, breakage, fire, water and other damage, provided the purchaser has not demonstrably taken out the insurance policy himself. Due to LWB retaining title, LWB is entitled to repossession after a reminder, if the purchaser’s behaviour is in breach of contract especially in case of payment default and the manufacturer is obliged to surrender the items. The exercise of the right of retention by LWB shall not be deemed as termination of the contract.
4.7 LWB retains all rights to offers, drawings and circuit diagrams. These documents must not be passed on to third parties. In case of a breach, LWB has the right to take legal action against the party responsible.
5.1 Risk shall be transferred to the purchaser with the dispatch of the delivery even if partial deliveries shall occur or LWB is under contractual obligation to assume other services such as shipping costs, transportation or installation of the delivery item.
For an “ex works” sale, LWB must notify the purchaser in writing of the time the delivery item/s must be received. This notification must take place early enough for the purchaser to be able to take the normally required measures. At the purchaser’s request and at his expense, the shipment shall be insured by LWB against damage from theft, transport, fire and water as well as other insurable risks.
5.2 If shipping is delayed due to circumstances, for which the purchaser is to blame, risk shall thus pass on to the purchaser starting from the day of readiness for dispatch. However, LWB is obliged, at the purchaser’s request and expense, to take the insurance cover requested by the purchaser.
5.3 Irrespective of the rights granted him by LWB in section VIII of these terms and conditions, delivered items must be accepted by the purchaser even if they have insignificant defects.
5.4 Partial deliveries are permitted.
6.1 The documentation of the scope of delivery and service shall adhere to the specifications stipulated in the offer description or in the agreed specification sheet. Provided nothing else is agreed, the documentation shall contain operating and maintenance instructions and safety tips. The documentation shall be handed over to the client at his request on CD-ROM and in paper form (DIN A4). The documentation shall be handed over approx. 30 days after delivery of the object of the contract or the prototype. If there are plausible reasons from LWB preventing the provision of the documentation at this date, LWB is entitled to promptly hand over the documentation after the disappearance of these reasons. The client is obliged, at LWB’s request, to provide the information and documents necessary for creating the documentation.
6.2 If provisions of the client form the basis of a contract, these provisions of the client shall be applicable only if and to the extent that they are expressly recognised by LWB in writing. Despite an express reference to them in the contract, these provisions of the client shall apply, in case of doubt, only to the extent that they refer to material releases, implementation provisions or documentation specifications and these provisions of the client are within the scope of the usual.
For defects to the delivery items, to which the absence of expressly guaranteed features belongs, LWB shall be liable for a period of 6 months (warranty period) from the shipment of the delivery item or from the notification of dispatch readiness excluding other claims irrespective of point 7 of this section VII as follows:
7.1 All such parts, which prove unusable or not insignificantly impaired in their usability within the warranty period especially due to faulty design or defective construction, are to be repaired or re-delivered free of charge based on LWB’s choice and at its reasonably exercised discretion. The discovery of such defects must be promptly communicated to LWB. Parts replaced by LWB shall become the property of LWB. If the remedial action is disproportionate, LWB is entitled to reduce the purchase price as appropriate. The liability of LWB for any third-party products is limited to the transfer of liability claims that LWB has against the supplier.
7.2 No guarantee is given for damage that resulted from the following reasons:
each provided that they are not traceable to a fault of LWB’s.
7.3 The purchaser, after prior written agreement, must give LWB the time and opportunity required to carry out all repairs and replacement deliveries that appear necessary at its reasonably exercised discretion, otherwise LWB shall be exempt from liability for defects.
7.4 Of the costs directly arising from the repair or replacement delivery, LWB shall bear – insofar as the complaint proves to be well-founded – the costs of the replacement part including that of shipment and the fair costs of removal and installation; furthermore, if this can be justifiably demanded depending on the case in question, the costs of the necessary provision of installers and assistants by LWB. Otherwise, the purchaser shall bear the costs.
7.5 The warranty period for the replacement part and the repair is 3 months from the end of the repair. However, it shall at least run till the expiry of the original warranty period for the delivery item. The period for the liability for defects on the entire delivery item shall be extended by the duration of the business interruption caused by the improvement work.
7.6 Modifications and repair work improperly carried out by the purchaser or third parties without prior approval from LWB shall nullify the liability for the resulting consequences.
7.7 LWB shall be liable for any injury to life, limb or health resulting from a negligent breach of duty on the part of LWB or a wilful or negligent breach of duty of the legal representatives or agents of LWB, however, only to the statutory extent. LWB shall be liable for other damage, also for grossly negligent breach of duty or a wilful or grossly negligent breach of duty of the legal representatives or agents of LWB. In cases where LWB violates a cardinal obligation (material contractual obligation, especially principal contractual obligations existing in a relationship of mutuality), liability shall be limited to the foreseeable damage typical of the contract. Otherwise LWB is exempted from liability. Furthermore, non-liability shall not apply to the absence of expressly guaranteed features if the purpose of the guarantee was to protect the purchaser from damage that did not occur on the delivery item itself.
8.1 The purchaser can withdraw from the contract if the entire contractually guaranteed performance becomes impossible for LWB before the transferof risk. The purchaser can also withdraw from the contract if, in the case of ordering similar items, it becomes impossible to execute a part of the delivery in terms of quantity and he has a legitimate interest in rejecting a partial delivery. If this is not the case, the purchaser can reduce the consideration accordingly.
8.2 If impossibility sets in during acceptance default or through the fault of the purchaser, he shall remain liable for consideration.
8.3 Furthermore, the purchaser has the right to substitute performance, as far as LWB has not complied with a suitable, specified deadline for remedial action.
8.4 LWB shall be discharged from responsibility through the following circumstances, if they occur after the conclusion of the contract and stand in the way of contractual performance: labour disputes and all circumstances independent of the will of the party, such as fire, mobilisation, confiscation, prohibition of foreign exchange transfer, riots, and the absence of means of transport.
8.5 Unless otherwise expressly provided, LWB shall have exclusive intellectual property rights, especially rights to registered designs, copyrights, rights to inventions or technical intellectual property rights to the findings, ideas, concepts, mathematical calculations, plans, know-how, and other work products – whether embodied or not embodied – which LWB develops during or occasionally after performance, (hereinafter referred to as “work products”).
8.6 LWB grants the client a non-exclusive and non-transferrable, temporally and spatially indefinite right of use to the work products, as long as their use by the customer is necessary for achieving the purpose of the contract.
8.7 Should the client develop a patentable work product based on the work products of LWB, the client shall promptly inform LWB of this in writing. As part of a separate agreement, the client and LWB shall then reach an agreement on the ownership and use of this work product and the property rights registered and granted hereupon.
8.8 The client shall immediately and comprehensively notify LWB in writing if claims are being asserted against him due to the work products. LWB is entitled but not obligated to solely assert claims in connection with the work products against the third party in and out of court. If the client is sued, he shall come to an agreement with LWB and shall conduct legal proceedings especially acknowledgments and settlements only with the consent of LWB.
9.1 The contractual relationship between LWB and the client is subject to the law of the Federal Republic of Germany. UN sales law (United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11/04/1980) shall not be applicable.
9.2 Should individual provisions of this be or become totally or partially incorrect or invalid, the validity of the remaining provisions shall not be affected. LWB and the client hereby undertake, in place of the void or invalid provision, to reach an agreement that most closely matches this provision legally and economically and that they would reasonably have reached if they had considered the nullity or invalidity of the affected provision at the conclusion of the contract.
9.3 In case of doubt, the German version of all contractual provisions shall be authoritative.
The processing of personal data that is protected pursuant to the General Data Protection Regulation (= GDPR) is permitted if the data subject or another statutory provision allows it or the data subject consents. With the request to submit an offer, the data subject consents to the processing of personal data that comes into consideration, except he objects in writing within 10 working days of LWB submitting the offer.
For the data subjects in question, we shall particularly draw their attention to the intended meaning of a missing objection at the commencement of said deadline.
11.1 The sole legal venue for all disputes arising from the contractual relationship is Mannheim.
11.2 LWB is also entitled to sue at the purchaser’s location.
11.3 German law with the exception of UN sales law shall apply to the contractual relationships between LWB and the purchaser.
With the coming into force of these terms and conditions of sale, delivery, and installation, earlier versions shall lose their validity.
These terms and conditions of assembly apply to all deliverables for installation and/or commissioning of delivery items of LWB in Germany and abroad in connection with clause A.
Assembly can only be started if the customer has made all the necessary preparations at his expense.
In particular, the customer must properly construct bases and carry out other construction work in the prescribed dimensions. The bases must be dried out sufficiently and all scaffolding, etc., which hinders assembly, must be removed.
All assembly items to be procured by the purchaser, including the equipment and devices to be provided by him, must be present at the point of use prior to assembly.
LWB is not obliged to undertake any construction or demolition work; nor does LWB have to take any extraordinary measures to transport its delivery item from the place of unloading to the place of installation, unless LWB has given written assurance in advance of the delivery to this place.
If, due to circumstances beyond the control of LWB, the work is interrupted for a long period of time, LWB reserves the right to recall the installer and to charge any costs incurred, both for the installer’s return journey and for re-dispatching him to the place of assembly / commissioning, to the purchaser.
If waiting times arise for the installer, which LWB is not responsible for, the purchaser will be charged the respective daily rate per person and day started during the assembly period. This also applies to the resulting additional expenses such as meals and accommodation, which are then charged according to the expenses.
All raw materials required for commissioning, such as cement, sand, aggregates, reinforcing steel, etc., must be provided free of charge to LWB installation personnel during commissioning. All consequential damages caused by the purchaser including the second-hand quality or reject products are at his expense.
An assembly and commissioning delay, which LWB is not responsible for, shall be borne by the customer, e.g. for waiting times, crane failure, and additional trips of our installers. The client is obligated to confirm, in reports, the duration of the working hours of LWB employees or subcontractors dispatched to the client or his end customer on a daily basis without delay in writing. The client is obligated to give the employees and subcontractors of LWB free access to the respective installation and commissioning location and to support these employees and subcontractors in the provision of their services. This obligation also applies if LWB is working on the premises of an end customer of the customer.
The unimpeded implementation of the installation requires that all assembly and work spaces are covered, provided with doors and windows and designed so that staying in it is neither harmful to health nor does it affect the condition of the material.
All utilities such as electricity, light, gas, water and telephone equipment are to be provided free of charge to LWB technicians.
It is the customer’s responsibility to provide adequate lighting and heating for these rooms and to provide the installation personnel with the necessary sanitary facilities.
Work on unhealthy or dangerous terrain will not be performed by LWB.
The material must be stored by the customer in such a way that it is protected against weather and other damaging effects.
For the storage of small parts, tools and other equipment, the installation personnel must have a suitable, lockable space for exclusive use. If no such space is available, the purchaser is liable for theft, loss and other disappearance as well as for material and tools.
The customer must provide the entirety of all tools and necessary ancillary material required for the execution and success of the installation at his own expense. This includes, in particular, tools for auxiliary personnel and lifting gear of sufficient carrying capacity (including operating personnel), ropes, scaffolding, workbenches with vices, wrought iron, welding equipment, etc., as well as cleaning, packing and lubricating materials, material for underlaying and grouting machines as well as fuels, the required steam and electric current in the appropriate voltage, water, welding gas and other operating materials. In exceptional cases, these tools and auxiliary materials as well as special tools may be made available by LWB for a fee in accordance with a special written agreement.
If LWB installation personnel procure material from the purchaser or the purchaser does work at the expense of LWB, LWB personnel must issue and sign an order form or timesheets. We are only obliged to recognize these charges upon presentation of these supporting documents.
For installation, commissioning and any rework during the warranty period, the client must provide, on request, LWB installation personnel with the necessary specialist and auxiliary personnel such as locksmiths, electricians, masons, carpenters, roofers, glaziers, painters and excavators etc. as well as the necessary installation material free of charge and in sufficient numbers, unless otherwise agreed. The purchaser must insure the provided specialist and auxiliary personnel in accordance with state laws.
The purchaser must obtain the necessary residence, work and other official permits for the assembly personnel in good time.
The LWB installation personnel are entitled to a daily allowance to be borne by the customer in the amount of the above rates to cover the costs of accommodation, food, and other expenses such as maintenance of clothing, drinks, etc.
The customer has to provide good and clean accommodation, healthy and adequate meals and medical care for the LWB assembly staff at his own expense.
In the case of illness and accident, in countries without social security agreements, the purchaser shall bear all costs for medical treatment, medicines and other means of restoring health and, if necessary, the costs of staying in a modern hospital.
The purchaser shall bear all costs associated with a return journey as a result of illness or accident, the travel costs of the replacement man and, in the event of death and at the request of LWB, the funeral costs at the place of death or the transfer costs to the place of residence.
The purchaser must take all legal or necessary precautionary measures against accidents at the assembly point.
If the conditions at a place of installation require special protective measures against climate-induced or epidemic diseases such as malaria and other diseases, all resulting costs will be charged to the purchaser.
If taxes, customs duties or other charges have to be paid by LWB or its installation personnel outside of the Federal Republic of Germany, these shall be borne by the purchaser.
The assembly costs incurred will be invoiced after completion of the installation. Invoices are payable immediately, net, without deduction, in the contractually specified currency.
a) Transport to the place of installation, unloading and, storage of the object of the assembly forming material take place for the account and at the risk of the purchaser, as far as, no other written agreements are made. This also applies if LWB provides personnel to monitor the proper handling of the delivered items.
b) The purchaser is liable for damage caused by his staff, the auxiliary staff or third parties to insufficient quality of the set-up and lifting equipment and other equipment provided by him, even if they were used by our staff without complaint. It is the duty of the purchaser to make the LWB installation personnel aware of this, if any consideration is to be given to his operation.
c) The purchaser has to inform LWB of the safety regulations that he has issued for his own personnel.
d) The purchaser may not use LWB personnel for work that is not covered by the contract without their prior written consent. Even if LWB gives its consent, it assumes no liability for this work. The purchaser is responsible for the safety of the staff thus deployed by LWB.
If LWB has taken over the commissioning of a plant within a certain period of time, it shall be deemed to have been complied with if the plant can perform useful work on the specified day, even if minor parts are still missing or reworking is necessary.
After completion of a service and the request to declare acceptance, the customer has to give it within ten working days. Working days are the days from Monday to Friday, excluding national holidays. Acceptance shall be considered granted if the customer does not refuse the acceptance in writing within this period, citing specific defects to be described.
Partial acceptances are permitted provided LWB has performed several different or divisible services and they do not conflict with legitimate interests of the client.
LWB is responsible for the proper execution of the work, which we have accepted, by LWB’s specially trained and experienced installation personnel, provided that LWB can inspect the work during execution and after completion. Excluded are damages caused by our personnel in the course of assembly.
LWB accepts no liability for work done by the purchaser on the object of assembly, which is carried out without special instructions from LWB.
LWB assembly personnel are not entitled to make any statements binding LWB.
For on-site inspections and repairs after expiration of the warranty period as well as for work on foreign material, the installation conditions apply accordingly.
If the execution of the work is hindered by events of force majeure (e.g. epidemics, strikes, lockouts, mobilization, war, war-like conditions, unrest, lack of supplies, lack of means of transport, and restriction of energy consumption), the conditions under which LWB has taken over the assembly are to be adapted to the changed circumstances.
1.1. These Standard Terms and Conditions for the Purchase of Goods shall exclusively apply, save as varied by express agreement accepted in writing by both parties. These Conditions shall also apply if the buyer accepts delivery of Goods under the existence of the seller’s contradictory Standard terms not being subject of the contract.
1.2. Any agreement being concluded between buyer and seller shall only be binding between the parties if they are laid down in writing. Any conditional or different terms proposed by the seller are objected to and will not binding upon the buyer unless assented in writing by the buyer.
1.3. These conditions shall govern any future individual contract of purchase between buyer and seller to the exclusion of any other terms and conditions. These provisions extend to standard contract conditions which are used in a contract with a merchant in the course of business only.
2.1. The Contract shall be deemed to have been entered into when, upon receipt of an order, the seller has sent an acceptance in writing within the time limit of fourteen days hereby fixed by the buyer.
2.2. Any weights, dimensions, capacities, prices, performance ratings or any other data contained in catalogues, circulars, advertisements or price lists constitute an approximate guide and shall not be binding save to the extend that they are by reference expressly included in a contract. Any such data submitted to the seller prior or subsequent to the formation of the contract remain the exclusive property of the buyer. They must not be communicated to a third party.
3.1. The price of the order or the seller’s quotation and offer as accepted by the buyer shall be binding. Prices as agreed upon shall include the cost of packing or protection required under normal transport conditions to prevent damage.
3.2. Insofar as the seller is required to make available material test, test records, quality documents or other documentation, the completeness of the delivery or service requires the submission of these documents. Only once these documents have been submitted shall invoices fall payable. Discounts for early payment are also permissible if buyer implements offsetting or retains payment to an appropriate degree due to defects; the payment term shall only commence the defects have been rectified.
3.3. Payments do not indicate acceptance of deliveries or services as being contractually compliant.
3.4. Payment shall be made in the manner and at the time or times agreed by the parties. If not agreed upon otherwise payment of the delivery shall be made within thirty days after delivery and receipt of invoice with a 2% discount or within ninety days net.
3,5. The Seller hast to provide to the buyer an invoice at the time or times agreed by the parties in a manner which enables the buyer to verify the invoiced items in a qualified way. I case such invoice is not provided, no payment shall became due.
4.1. Delivery shall be effected on due date as being fixed in the contract or the order of purchase being subject to the contract.
4.2. The seller is obliged to give notice in writing to the buyer if a delay in delivery is to be expected.
4.3. If the seller fails for any reason whatsoever to effect delivery on due date the buyer shall be entitled by notice in writing to the seller to recover from the seller any loss suffered by reason of such failure (i. e. for additional costs for transportation, insurance, storage etc.) but not exceeding an amount of 10% of the total contract price.
4.4. In the event of a delay in the provision of a delivery or service becoming apparent, the buyer must be informed immediately and his respective decision must be obtained.
4.5. If the buyer accepts a delayed delivery this shall not affect the right of purchaser to claim damages or delay compensation.
4.6. In the event of an application for or commencement of insolvency, receivership or bankruptcy proceedings in relation to the assets of the supplier, or a rejection of such proceedings due to a lack of assets, or in the event of bill of exchange or cheque protest, or the suspension of payments, the buyer is entitled to withdraw from the contract even if the contract has been partially or fully fulfilled by the buyer or the seller, unless the seller’s warranty periods have already come to an end.
Save as provided in an individual contractual agreement the time at which the risk of damage to or loss of the goods shall pass shall be fixed in accordance with the Interpretation of Trade Terms (Incoterms 2010) of the International Chamber of Commerce. If no further indication is given in an individual contract of purchase (import), the goods shall be deemed to be sold „DDP“ (delivery duty paid, Incoterms 2010).
6.1. Insofar as the purchaser makes parts available to the seller, the purchaser retains the title to these. Processing or conversion by the seller is carried out on behalf of the buyer. If buyer‘s goods subject to the retention of title are processed with other goods not belonging to the buyer, then buyer shall acquire co-ownership of the new item according to the ratio of the value of buyer‘s item to the other items with which it was processed, at the time of the processing.
6.2. If buyer‘s goods subject to the retention of title are inseparably combined with other objects not belonging to buyer, then buyer shall acquire coownership of the new item according to the ratio of the value of buyer‘s item to the other items with which it was combined, at the time of the combination. If the combination takes place in such a way that the property of buyer should be considered the primary item, it applies as agreed that the seller shall transfer buyer proportional co-ownership; the seller shall store the item on behalf of the buyer under sole ownership or co-ownership.
6.3. Buyer retains ownership of tools; the seller is obligated to only use the tools for the production of the goods ordered by the buyer. The seller is obligated to insure tools belonging the buyer at his own expense against fire and water damage, as well as theft. The seller is obligated to carry out any requisite maintenance and inspection work in a timely manner and at his own cost. Any malfunctions must be reported to buyer immediately; should the seller culpably fail to do so then he shall be required to pay compensation to the buyer accordingly.
6.4. The seller is not permitted to pass on to third parties – nor to utilize in any manner other than those which satisfy contractual purposes – any tools, moulds, samples, models, profiles, drawings, standards sheets, print templates and gauges provided by buyer, as well as any objects manufactured through use of the aforementioned items, without the explicit written permission of the buyer. Furthermore, these objects must secured against unauthorized access or use. If the seller infringes these obligations then the buyer may demand their return notwithstanding further rights.
6.5. The seller is obligated to maintain strict confidentiality with regards to all received images, drawings, calculations and other documentation and information. Third parties may only be shown these with the express authorization of the buyer. The confidentiality obligation also encompasses personal data. The confidentiality obligation also applies after the conclusion or termination of this contract; it expires if and only insofar as the production knowledge contained in the transferred images, drawings, calculations and other documentation has become common knowledge. Sub-suppliers must be obligated accordingly.
7.1. Warranties relating to the quality of goods
The seller warrants that all items delivered under this agreement will be free from defects in material and workmanship, conform to applicable specifications, and, to the extent that detailed designs have not been furnished by the buyer, will be free from design defects and suitable for the purposes intended by the buyer.
Seller’s warranties hereunder shall extend to any defect or non – conformity arising or manifesting itself within two years after delivery. With respect to items not in accordance with any such warranties, the buyer, without waiving any rights or remedies provided by law and/or elsewhere under these Standard Terms and Conditions, may require the seller to correct or replace such items at the seller’s risk and expense or refund such portion of the price as is equitable under the circumstances. Any items corrected or replaced shall be subject to the provisions of these Standard Terms and Conditions in the same manner as those originally delivered hereunder.
7.2. Warranties of compliance with laws
The seller warrants and undertakes to the buyer that in the performance of any contract of sale he will comply with all laws, rules, regulations, decrees and other ordinances issued by any governmental, state or other authority relating to the subject matter of these Standard Terms and Conditions and to the performance by the parties hereto of their obligations hereunder.
7.3. Warranty of title
The seller warrants that the Goods are in his absolute property and none are subject of any option, right to acquire, assignment, mortgage, charge, lien or hypothecation or any other encumbrance whatsoever or the subject of any factoring arrangement, hire – purchase, conditional sale or credit sale agreement. If the buyer is the subject of a claim by a third party for Warranty of title or any property rights, the seller is obligated to release the purchaser from this claim upon its initial submission on first demand.
Independent of any warranty claim the purchaser might have against the seller for late performance or any mal performance, the purchased receives the right to claim a penalty payment from the seller. The amount due shall be determent by the purchaser in consideration of the effect any such violation of the contract might have had towards the operation of the purchaser.
9.1. This agreement supersedes and invalidates all other commitment and warranties relating to the subject matter hereof which may have been made by the parties either orally or in writing prior to the date hereof, and which shall become null and void from the date of the agreement is signed.
9.2. This agreement shall not be assigned or transferred by either party without the written consent of the other.
9.3. Each party shall be responsible for all its legal, accountancy or other costs and expenses incurred in the performance of its obligation hereunder.
9.4. The assignment of a claim is only permissible with written agreement from the buyer.
This agreement shall be governed by and construed exclusively in accordance with German law with the exclusion of the UN Convention on Contracts for the international Sale of Goods. Sole court of jurisdiction shall be at the location of the Buyer.