General Business Terms for the Sale and Delivery in the Plastics Converting Industry
General Business Terms for the Sale and Delivery in the Plastics Converting Industry
The following terms are applicable only to business persons, legal entities under public law or of public utilitis or separate public legal assets.
1.1 Order become binding only after the supplier has confirmed the order. Variations and additions to the tender shall be made in writing. All offers and tenders are subject to alterations, unless they are explicitly marked as fixed.
1.2 These terms are vaild in respect to on-going business and also future business, even if not expressly stated, as long as these terms have been referred to at the occasion of a previous supplier confirmed order.
1.3 Business terms of the customer do not apply, even if not expressly disagreed with by the supplier, unless the supplier has expressly agreed to them in writing.
1.4 Should any one clause be or become void, the validity of the remaining clauses is not affected.
2.1 Prices shall be considered to be ex works, excluding freight, customs or import duteis or ancillary export charges and packing, plus VAT, applied at the legally proscribed rate.
2.2 Should after submission of the offer of after confirmation of the order prior to delivery a major cost factor, either party may request a price adjustment. The adjustment shall be determined according to the applicable cost factor in respect of the total price.
2.3 If the parties agree on a price depending on the article’s weight, the final price will be calculated on the basis of the released type samples’ weight.
2.4 Previous prices do not bind the supplier in subsequent orders.
3. Delivery and Acceptance Obligations
3.1 Delivery schedules commence with the receipt of documentation, necessary for the execution of the order, down payment or the timely provision of materials, if such were agreed. The supply deadline is considered fulfilled upon receipt of the delivery advice note, even when the actual delivery is delayed or has become impossible, provided the supplier did not cause the delay.
3.2 If an agreed date of delivery will not be met as a result of the supplier’s own fault, then, providing that he did not act grossly negligent or deliberately, the orderer is entitled to demand a compensation of delay or to cancel the contract, excluding further orderers’ claims after expiration of an appropriate extension of time. The compensation of delay is limited at the utmost to 5% of that delivery’s part, which has not been carried out in accordance to the contract. The contract cannot be cancelled, if the orderer himself provides a default of acceptance. The orderer is responsible to prove a higher damage.
3.3 Reasonable partial deliveries and deviations of quantities up to plus/minus 10 % are acceptable.
3.4 The supplier may demand a firm commitment to on-call contract periods, manufacturing quantities and delivery schedules three months after receipt of an order at the latest. If the customer is unwilling to make such a commitment within three weeks, the supplier is entitled, after further extension of two weeks, to withdraw from the contract after expiration of the latest deadline and/or demand compensation.
3.5 If the customer fails to duly accept a delivery, the supplier ist not bound by any regulation regarding re-sale and may freely dispose of any delivery items after prior notification of the customer, regardless of any other rights or regulations governing disposal sales.
3.6 The supplier may delay delivery because of force majeure for the duration of the difficulties, including an appropriate time for a return to normalcy, or in the case of non-completion of a delivery rescinds the contract wholly or in part. As force majeure qualify strikes, lockouts or unforeseeable and unavoidable situations, such as malfunctions, which, notwithstanding all reasonable efforts, render on-time delivery by the supplier impossible. This also is the case when the aforementioned delays occur after previous delays or when delays occur with a subcontractor. The customer may request the supplier to declare within two weeks, whether a cancellation of the contract or a late delivery within a suitable period of grace is appropriate. If the supplier does not respond to the request, the customer may rescind not yet completed parts of the contract. The supplier shall inform the customer without delay when force majeure, as defined in clause 1, has occurred. The supplier is obliged to minimize the inconvenience to the customer; if necessary, he may have to hand over the forms for the duration of the obstruction.
4. Packaging, Despatch, Risk Transfer and Acceptance Delays
4.1 Unless agreed to differently, the supplier chooses the packaging, mode of transport and transport route.
4.2 The transport risk transfers to the customer upon goods leaving the works, even if delivery is free ex works. If the customer delays a delivery, the risk transfers to the customer as soon as the despatch advice note has been issued.
4.3 If requested in writing by the customer, goods shall be insured at cost to the customer for the risk coverage requested.
5. Reservation of Property Rights
5.1 Deliveries remain the property of the supplier until all claims of the supplier on the customer have been met, even when the purchase price for specially marked claims has been met. For account customers the reserved property rights to the delivered goods (reserved ownership of goods) are in force as security for the supplier until the balance has been paid in full. If payments are made by means of a bill of exchange, then reserved ownership is not transferred until the bill of exchange has been cleared.
5.2 Further processing or treatment of goods supplied by the customer may only be carried out by excluding the ownership rights of the customer according to § 950 BGB (Common Law Code) as contracted by the supplier. The supplier becomes co-owner of the thus produced goods to the proportional value of the net sale price to the net post-manufacturing processed cost of the thus produced goods, which serve as reserved ownership goods to secure the property claims oft he supplier as per clause 1.
5.3 For further processing by the customer (in combination or addition) with other goods not owned by the supplier,
§§ 947, 948 BGB (Common Law Code) are applicable, resulting in proportional co-ownership by the supplier in the resulting goods, which are now considered reserved ownership goods.
5.4 The re-sale of reserved ownership goods by the customer is only permissible as part of normal commercial practise and on condition that the customer reaches an agreement with the supplier regarding reserved ownership goods as defined in clauses 1 to 3. The customer is not entitled to take any other action in respect of reserved ownership goods, in particular pawning, or using the goods as security.
5.5 The customer relinquishes herewith already now all claims to the supplier, which may result from the re-sale of goods and all other justifiable claims, including associated rights to his customers. The customer is duty-bound upon request to inform the supplier immediately and supply all necessary documentation to secure the rights of the supplier against the customers oft he customer.
5.6 When reserved property is re-sold by the customer after further processing action in combination or addition with other goods, not owned by the supplier, as outlined in clause 2 and/or 3 above, the customer cedes all purchase price claims according to clause 5 to the account value of the reserved ownership goods of the supplier.
5.7 Should the value of the securities held by the supplier exceed the total billed value of the goods by more than 10 %, the supplier must release such securities to a commensurate value; the supplier may nominate the securities to be released.
5.8 The supplier must be notified without delay of any confiscation or seizure of reserved ownership goods by a third party. All associated costs due to such intervention are to be born by the customer to the extent that costs are not born by third parties.
5.9 Should the supplier, taking action according to the above clauses, make use of his right to take back the reserved ownership goods, the supplier is entitled to an unencumbered sale or auction of said goods. The value of the returned reserved ownership goods shall be as sold or auctioned and no higher than the agreed supply price. Further claims for compensation, in particular compensation for loss of earnings, are reserved.
6. Warranty for Material Defects
6.1 The product description defines the quality and design of the products or the implementation in the case of an agreed product sample, which the supplier at his discretion shall submit to the customer for evaluation. Any reference to technical standards is an aid to define product quality and is not to be interpreted as a definition of product integrity.
6.2 The supplier, after advising the customer beyond his contractual obligation, is liable to warrant the functionality and suitability of the supplied goods only after expressed prior assurance.
6.3 Defects are to be notified in writing without delay. Hidden defects are to be notified immediately after discovery. In either case the warranty only extends to twelve months after risk transfer. Unless the law prescribes longer periods according to § 438 paragraph 1 No. 2 BGB, § 479 paragraph 1 BGB and § 634a paragraph 1 No. 2 BGB (Common Law Code), these are applicable.
6.4 If defects are proven, the supplier is obliged to make good (at his discretion either by rectifying or replacing the faulty product). The customer is entitled to reduce the purchase price or rescind the contract, if the supplier does not fulfil his obligation to replace goods within a reasonable period, of after replacements fail repeatedly. Further claims, expecially reimbursement of incurred costs or compensation and damages due to the faults are covered under warranty liability limitations according to No. 7. Replaced parts are to be returned to the supplier at his request and cost.
6.5 Unauthorized re-working and improper handling of parts result in the loss of any right to claim compensation for to defective parts. The customer is entitled, after prior consultation with the supplier, to repair defective parts to avoid excessive damage or if the supplier fails to make good the defects, and as a consequence to demand reimbursement of appropriate costs.
6.6 Normal wear and tear caused by normal usage does not provide the right to make warranty claims.
6.7 A right to referred warranty provision according to §§ 478, 479 BGB (Common Law Code) exists only to the extent of a rightful claim by the consumer and to the limit of statutory provisions, but not for any arrangement of goodwill made with the supplier and supposes the exercise of the obligation of the party holding the rights to referred warranty provisions to report any deficiencies.
7. General Limitations of Liability
The supplier´s liability is limited only to cases in which he, his leading employees or sub-contractors are guilty of culpable intent, gross negligence or injury to life, limb and health. The statutory product warranty is unaffected independent of any blame as well as any liability in respect of the legal fulfilment in regard of any product ingetrity warranty. Unaffected also is the liability in the case of culpable neglect of major contractual obligations; however, the liability is restricted in cases of No. 1 to foreseeable direct damages commonly encountered in contracts. However, this implies no change in the requirement of proof to the disadvantage of the purchaser.
8. Terms of Payment
8.1 All payments are to be made in € (EURO) and shall go solely to the supplier.
8.2 In the absence of a different arrangement the purchase price for supplies or other services is to be paid with 2 % discount within 14 days and without a discount within 30 days from the billing date. A cash discount has the requirement, that all earlier due invoices are paid. For payments by draft no discount is granted.
8.3 Payments made on accounts in arrears attract interest at the legal interest rate charge of 8 percentage points over and above the applicable base rate, unless the supplier proves higher damages.
8.4 Cheques or bills of exchange are only acceptable with the expressly written agreement and only to discharge existing obligations. All costs, associated with these forms of payment, shall be born by the customer.
8.5 The customer may offset an account or exercise his right to withhold payment only if his claims are indisputable or extablished in law.
8.6 Sustained non-compliance with the terms of payment or circumstances that raise serious doubts as to the creditworthiness of the customer will result in claims for all payments becoming due immediately. Moreover the supplier is also entitled to demand pre-payment for all outstanding deliveries and even to cancel the contract if an appropriate deadline has not been kept.
9. Forms (Tooling)
9.1 The price for forms also contains the once-off costs for the making of patterns, but does not contain the costs for test and processing procedures, nor costs incurred by customer initiated alterations. Any further patterns required by the supplier are at his own costs.
9.2 The supplier has and retains ownership of all forms made by the supplier for the customer or by a contracted third party, unless agreed to differently. Forms shall be used only for customer orders as expressly agreed, for as long as the customer continues payment and acceptance obligations. The supplier is obliged to replace the forms free of charge only when the required production quantity necessitates its replacement. The suppplier´s requirement to store the forms is extinguished two years after the last delivery of parts produced with the forms.
9.3 If so contractually agreed, the property of the forms shall transfer to the customer after full payment of their purchase price has been made. The actual transfer of forms to the customer is replaced by the storage of the said forms to the benefit of the customer. Irrespective of the legal right of surrender the customer and the life of the forms, the supplier is entitled to exclusive possession of same until the end of the contract period. The supplier shall mark the forms as outside property and insure said property at the customer´s request and expense.
9.4 The liability of the supplier in respect of storage, care and maintenance of forms owned by the customer as per clause No. 3 and/or forms loaned by the customer to the supplier is subject to like treatment of proprietary property. Costs for maintenance and insurance are born by the customer. The obligations of the supplier cease when, after completion of the contract and a corresponding request, the customer fails to collect the forms within an appropriate period. The supplier has the right to withhold the forms as long as the customer has not complied with the full extent of contractual obligation.
10. Provision of Materials
10.1 If the customer supplies production materials, said materials are to be delivered at the customer´s own cost and risk, on time and in good order and a quantity premium of at least 5 %.
10.2 If the above provision is not complied with, the delivery deadline shall slip accordingly. The customer has to bear any additional costs, including extra costs incurred due to breaks in production, except in the case of force majeure.
11. Rights to Commercial Protection and Legal Limitation
11.1 For all deliveries based on drawings, models, patterns or parts supplied by the customer, the customer warrants that the commercial rights of third parties in the country for whicht the goods are being manufactured are not injured. The supplier may draw the customer´s attention to known laws, but is not obliged to undertake investigations. The customer shall release the supplier from any claims of a third party at first request and pay compensation for any resulting damage. The supplier is entitled to stop all work – without any examination of the legal position – until the legal position has been clarified by the customer after an injunction by the third party to protect the commercial rights of the third party has been issued. If the continuation of the contract should become untenable to the supplier, the supplier may rescind the contract.
11.2 Any drawings and patterns that were made available to the supplier, but did not result in a contract, shall be returned when requested; else the supplier is entitled to destroy the same three month after the issue of the quote or tender. The same obligation applies also to the customer. The party entitled to dispose shall inform the other party of the intention prior to doing so and in good time.
11.3 The supplier retains all property rights, copyrights and, if applicable, rights to commercial protection, in particular the rights of utilization and exploitation of models, forms, facilities, designs and drawings made by him or for him under contract by a third party. If requested, the customer shall return all records, documentation, forms, patterns or models, including all copies made thereof, to the supplier without delay.
11.4 For all other legal product limitations No. 6 respectively applies.
12. Production and legal Venue
12.1 The production venue is the works of the supplier.
12.2 Legal venue at the supplier´s discretion is the principal office of the supplier or the customer, also for document, exchange and check processes.
12.3 German law applies exclusively, excluding the UN Law on Trade of 11. April 1980 about national purchasing (BGB 1989 S. 586) for Federal Republic of Germany (BGB 1990 S. 1477).
As of 29. April 2002
Conditions of Purchase
1. Authoritative Conditions
The legal relations between the supplier and Metzger & Mendle GmbH (hereinafter referred to as the customer) are based on these conditions and any other agreements. Changes and additions require the written form. This also applies to future legal relations. Other general terms and conditions of the supplier do not apply, even if they have not been expressly contradicted in individual cases.
2.1 Supply contracts (order and acceptance) and delivery schedules as well as their amendments and supplements must be in writing. Orders, delivery schedules as well as their amendments and supplements may also be made by remote data transmission. Unless otherwise agreed in individual agreements, the prices stated in the order are binding and fixed for the duration of the order, including customary packaging, transport insurance, assembly and acceptance.
2.2 If the supplier does not accept the order within three days of receipt, the customer shall be entitled to cancel the order. Delivery schedules shall become binding at the latest if the supplier does not object within three days of receipt.
2.3 Within the framework of what is reasonable for the supplier, the customer can demand changes to the construction and design of the delivery item. The consequences of such changes, in particular with regard to additional and reduced costs and delivery dates, shall be settled by mutual agreement.
3.1 Unless otherwise agreed in individual agreements, payment of the invoice amount shall be made 14 days after delivery with a 3% discount or within 30 days net at the decision of the customer. In case of acceptance of premature deliveries, the due date shall be determined by the agreed delivery date.
3.2 Payment shall be made by bank transfer or cheque.
3.3 In the event of defective delivery, the customer shall be entitled to withhold payment proportionate to the value until proper fulfilment.
3.4 The supplier is not entitled to assign its claims against the customer or have them collected by third parties without the customer’s prior written consent, which must not be unreasonably withheld. In the event of extended reservation of title, such consent shall be deemed to have been given. If, contrary to sentence 1, the supplier assigns its claims against the customer to a third party without the customer’s consent, the assignment shall nevertheless be effective. However, the customer may, at his discretion, make payment to the supplier or the third party with discharging effect.
4. Notification of Defects
Defects in the delivery must be notified to the supplier in writing by the customer without delay as soon as they are discovered in the normal course of business. In this respect, the supplier waives the objection of delayed notification of defects.
5.1 The contracting parties undertake to treat all commercial and technical details which are not public knowledge and which become known to them through the business relations as business secrets.
5.2 Drawings, models, templates, samples and similar items may not be handed over or otherwise made available to unauthorised third parties. The reproduction of such objects is only permitted within the scope of operational requirements and copyright regulations. Documents provided by the customer as well as copies made by the supplier must be returned in full to the customer without request after the end of the cooperation.
5.3 Subcontractors shall be obligated accordingly.
5.4 The contracting parties may only advertise with their business relationship after prior written consent.
5.5 The obligation of secrecy shall continue to apply indefinitely even after termination of the legal relationship, and shall also apply in the event that a legal relationship is not established.
6. Delivery Dates and Deadlines
Agreed dates and deadlines are binding. The receipt of the goods by the customer is decisive for compliance with the delivery date or delivery period. If, in exceptional cases, “delivery duty paid“ has not been agreed, the supplier shall make the goods available in good time, taking into account the usual time for loading and dispatch.
7. Delay of Delivery
7.1 The supplier is obliged to compensate the customer for the damage caused by delay.
7.2 In the event of a delay in delivery, the customer shall be entitled to claim a delay penalty of 0.1% per calendar day of delay, up to a maximum of 5% of the value of the total order, which shall be set off against any claims for damages.
8. Force Majeure
Force majeure, labour disputes, unrest, official measures and other unforeseeable, unavoidable and serious events shall release the contracting parties from their obligations to perform for the duration of the disturbance and to the extent of their effect. This also applies if these events occur at a time when the affected contractual partner is in delay. The contractual partners are obliged to provide the necessary information immediately within the scope of what is reasonable and to adjust their obligations to the changed circumstances in good faith.
9. Quality and Documentation
9.1 The supplier must comply with the recognised rules of science and technology, the safety and environmental regulations and the agreed technical data for his deliveries. Changes to the delivery item require the prior written consent of the customer. For initial sample testing, reference is made to the current version of the VDA publication “Sicherung der Qualität von Lieferungen- Lieferantenauswahl/Qualitätssicherungsvereinbarung/Produktionsprozess- und Produktfreigabe/Qualitätsleistung in der Serie/Deklaration von Inhaltsstoffen”, Frankfurt am Main 2004. Irrespective of this, the supplier must constantly check the quality of the delivery items. In this respect, the supplier undertakes to comply with the respective applicable recommendations of the VDA for quality assurance. The current version of the VDA publication with the applicable recommendations of the VDA can be requested from the customer or the VDA, Frankfurt. The contractual partners will keep each other informed on an ongoing basis about the possibilities for quality improvement. The supplier must adapt his own quality management system to the customer’s applicable system of ISO 9001:2000 ff. The parties shall endeavour to achieve ISO/TS 16949 as their objective.
9.2 If the type and scope of the tests as well as the test equipment and methods have not been firmly agreed between the supplier and the customer, the customer shall be prepared, at the supplier’s request, to discuss the tests with him within the scope of his knowledge, experience and possibilities in order to convey the respective required state of the art in test technology. In addition, the customer shall inform the supplier on request about the relevant safety regulations. This does not release the supplier from the obligation according to 9.1.
9.3 In the case of the motor vehicle parts marked in the technical documents or by separate agreement, in particular, for example, with “D”, the supplier must also note in special records when, in what way and by whom the delivery items have been tested with regard to the characteristics requiring documentation and what results the required quality tests have produced. The test documents shall be kept for 15 years and shall be presented to the customer at any time and without delay upon request. The supplier shall place upstream suppliers under the same obligation to the same extent within the framework of the legal possibilities. Reference is made to the current version of the VDA publication “Nachweisführung – Leitfaden zur Dokumentation und Archivierung von Qualitätsforderungen”, Frankfurt am Main 1998, as a guide.
9.4 Insofar as authorities responsible for motor vehicle safety, exhaust gas regulations or the like demand to inspect the production process and the test documents of the customer in order to verify certain requirements, the supplier declares its willingness, at the request of the customer, to grant them the same rights in its plant and to provide all reasonable assistance in this respect. If test documents and evidence are not submitted despite being requested, the customer shall be entitled to have legally required material tests carried out by officially recognised material test centres at the supplier’s expense.
9.5 Due to the inspection and documentation obligations, the supplier waives the objection pursuant to § 442 (1) sentence 2 BGB (German Civil Code) that the defects remained unknown to the customer due to gross negligence.
10. Material Defects and Statute of Limitations
The supplier guarantees that the goods delivered by him are free of defects as follows:
10.1 In the case of deliveries of defective goods, the supplier must first be given the opportunity to sort out defective parts before production (processing or installation) begins, unless this is unreasonable for the customer. If the supplier is unable to do this or if he does not comply with this immediately, the customer may withdraw from the contract to this extent without further notice and return the goods at the risk and expense of the supplier. In urgent cases, he may, after consultation with the supplier, carry out the rectification himself or have it carried out by a third party. Any costs arising from this shall be borne by the supplier. If the same goods are repeatedly delivered with defects, the customer is also entitled to withdraw from the contract for the unfulfilled scope of delivery.
10.2 If the defect is only discovered after the start of completion, the statutory options of the customer shall apply.
10.3 The parts to be replaced by the supplier must be made available to the supplier immediately by the customer on request and at the supplier’s expense.
10.4 The duration of the warranty depends on the respective requirements of our customers. It ends at the latest when 36 months or 100,000 km have elapsed since the initial registration of the vehicle or installation of spare parts. For replaced or repaired vehicle parts, however, the warranty period begins anew.
10.5 The provisions of §§ 478, 479 BGB (German Civil Code) shall apply without restriction to the contractual relationship between customer and supplier with the proviso that these provisions shall also apply if the end customer is not a consumer but an entrepreneur.
10.6 Warranty claims shall not arise if the defect is due to violation of operating, maintenance and installation instructions, unsuitable or improper use, faulty or negligent treatment and natural wear and tear, as well as interventions in the delivery item by the customer or third parties.
10.7 In the case of defective deliveries, claims of the customer arising from product liability law, unlawful acts and management without order remain unaffected by this section 10.
10.8 Unless otherwise regulated in the above, the warranty is based on the statutory provisions.
Insofar as no other liability provision has been made elsewhere in these terms and conditions, the supplier shall only be obliged to compensate for damage incurred by the customer directly or indirectly as a result of a defective delivery, due to violation of official safety or environmental regulations or for any other legal reasons attributable to the supplier as follows.
11.1 As a matter of principle, the supplier shall only be liable for damages if the supplier is at fault for the damage caused by him.
11.2 If a claim is made against the customer on the basis of strict liability towards third parties (e.g. product liability), the supplier shall be liable to the customer to the extent that he would be directly liable. The principles of § 254 BGB (German Civil Code) shall apply mutatis mutandis to the compensation of damages between the customer and the supplier. This shall also apply in the event of a direct claim against the supplier.
11.3 Claims of the customer are excluded to the extent that the damage is due to violations of operating, maintenance and installation instructions attributable to the customer, unsuitable or improper use, incorrect or negligent treatment, natural wear and tear or incorrect repair.
11.4 The supplier is liable for measures taken by the customer to avert damage (e.g. recall action), insofar as he is legally obliged to do so.
11.5 The customer shall inform and consult the supplier immediately and comprehensively if he intends to make a claim against the supplier under the above provisions. He shall give the supplier the opportunity to investigate the case of damage. The supplier undertakes to cooperate with the customer in clarifying the causes of the respective case of damage and to inform the customer comprehensively. The contracting parties shall agree on the measures to be taken, in particular in the event of settlement negotiations.
11.6 The supplier shall be obliged to take out adequate insurance against the above-mentioned risks through a business liability insurance policy and to provide evidence of this insurance cover to the customer on request.
11.7 The supplier is obliged to insure himself sufficiently against the above-mentioned risks by means of recall cost insurance and to prove this insurance cover to the customer on his request.
12. Industrial Property Rights
12.1 The supplier is liable for claims arising from the infringement of industrial property rights and applications for industrial property rights (industrial property rights) when the delivery items are used in accordance with the contract, at least one of which is published in the industrial property rights family either in the supplier’s home country, by the European Parliament or in one of the following states: Federal Republic of Germany, France, Great Britain, Austria or USA.
12.2 The supplier shall indemnify the customer and its customers against all claims arising from the use of such industrial property rights.
12.3 This shall not apply if the supplier has manufactured the delivery items in accordance with the drawings, models or other equivalent descriptions or information provided by the customer and does not know and, in connection with the products developed by the supplier, need not know that industrial property rights are thereby infringed.
12.4 Insofar as the supplier is not liable pursuant to 12.3, the customer shall indemnify the supplier against all claims of third parties.
12.5 The contracting parties undertake to inform each other without delay of any infringement risks and alleged cases of infringement that become known and to give each other the opportunity to counteract such claims mutually agreed upon.
12.6 At the request of the customer, the supplier shall notify the customer of the use of published and unpublished and own and licensed property rights and property right applications for the delivery item.
12.7 In all other respects, the statutory provisions on liability for defects of title shall apply with the proviso that the claims of the customer shall become statute-barred after five years.
13. Use of Production Resources/Confidential Information and Materials provided
13.1 Models, matrices, templates, samples, tools and other means of production, as well as confidential information provided to the supplier by the customer or paid for in full by the customer, may only be used for deliveries to third parties with the prior written consent of the customer. Unless otherwise agreed, they shall be insured by the supplier and marked as the property of the customer, kept as such in the operational documents, stored separately, administered, maintained, serviced and may not be passed on to third parties without the prior written consent of the customer.
13.2 If means of production are not or not fully paid for, the supplier grants the customer a right of first refusal. In this case, pro rata costs paid by the customer to the supplier shall be set off against the purchase price.
13.3 Any modification of these items requires the prior written consent of the customer. Unless otherwise specified in the order, all items delivered by the customer must be returned with the last delivery without being asked after the execution of the order. This shall also apply to tools, production material etc. which are manufactured by the customer and for which the supplier shall bear proportionate costs, provided that these tools are to become the property of the customer according to the agreement.
13.4 Processing and treatment of materials provided by the customer is carried out for the customer as manufacturer in the sense of § 950 BGB (German Civil Code). In the case of processing with other goods not belonging to the customer, the supplier is entitled to co-ownership of the manufactured item in the ratio in which they stand to each other: the value stated in the order of the materials provided for the manufactured item to the sum of all invoice values of foreign materials used in the manufacture.
13.5 If the provided material is mixed or combined with other objects and if the ownership of the customer of the provided material (§§ 947, 948 BGB) expires as a result, the parties agree that the ownership or co-ownership rights of the supplier in the mixed stock or the uniform object are transferred to the customer to the extent of the value of the provided material taken into account and that the supplier keeps the object in safe custody for the customer free of charge. Otherwise, the same shall apply to objects/stocks resulting from the processing or through combination or mixing as for the material provided. The supplier is not entitled to sell the material provided or otherwise dispose of the material provided in any other way.
13.6 The supplier undertakes to cover the current demand of the customer for parts with which tools, production equipment etc. are manufactured for a period of 15 years from the final cessation of production at economically reasonable prices. The use of these tools, production equipment etc. for third parties is not permitted without the prior written consent of the customer. If the supplier does not manufacture the parts any more or not to the necessary extent for reasons for which the customer is not responsible, the tools, means of production etc. shall become the sole property of the customer against appropriate compensation to be determined by negotiation and shall be delivered to him.
13.7 In this case, the handover of the manufacturing equipment is replaced by the supplier’s obligation to carefully store the manufacturing equipment until the time of collection. This compensation shall not be granted if the case of compensation is deliberately brought about by the supplier. The customer must be informed immediately of any seizure or other impairment of the provided material by third parties. The material provided may only be used for the specified order and may not be exchanged.
14. General Provisions
14.1 When determining the amount of the compensation claims to be met by the supplier in accordance with sections 7, 10, 11 and 12, the economic circumstances of the supplier, the type, scope and duration of the business relationship with the supplier shall be taken into account.
The supplier shall be entitled to take into account the value of the goods supplied and, if applicable, the value of the supplied part in favour of the supplier.
14.2 If one party to the contract suspends payments or if insolvency proceedings are applied for over its assets or out-of-court settlement proceedings are applied for, the other party is entitled to withdraw from the contract for the part not fulfilled. In order to secure his claims, the customer is entitled to enter the supplier’s premises at any time.
14.3 Without the prior written consent of the customer, the supplier may not transfer the performance of the contractual obligations entered into, either in whole or in part, to other contractors. If such consent is given, the supplier shall remain fully responsible for the performance of the contract. Sub-suppliers shall be deemed to be vicarious agents of the main supplier within the meaning of § 278 BGB (German Civil Code); they shall be named to the customer upon request.
14.4 A simple reservation of title by the supplier with regard to objects to be delivered, work deliveries, work performances, installations etc. is contradicted.
14.5 The same applies to an extended reservation of title.
14.6 Any reservation of self-delivery by the supplier regulated in the supplier’s general terms and conditions is hereby expressly contradicted.
14.7 The customer reserves the unrestricted right of set-off and retention. Any corresponding prohibitions of the supplier are contradicted.
14.8 The customer is generally not liable for breaches of duty, regardless of the contractual or legal grounds – in particular for non-fulfilment, delay, impossibility and the breach of protective and secondary obligations as well as pre-contractual obligations – if these breaches of duty are based on simple negligence. The customer is also generally not liable for unauthorised actions if they are based on simple negligence.
14.9 The exclusion of liability in 14.8 also applies to actions and omissions of the vicarious agents, assistants and legal representatives of the customer. The exclusion of liability in 14.8 also applies to actions and omissions of the ordinary vicarious agents of the customer, even if they are based on gross negligence.
14.10 The exclusion of liability in 14.8 and 14.9 shall in each case not apply to damages resulting from injury to life, body or health.
14.11 The exclusion of liability in 14.8 and 14.9 shall also not apply to damage resulting from a grossly negligent breach of duty by the customer, a legal representative of the customer or a vicarious agent of the customer.
14.12 For damages caused by simple negligent acts or omissions, the customer is liable, if at all according to 14.8 to 14.11, only to the amount of the typical, foreseeable damage.
14.13 The liability of the customer’s personnel is limited, as is the customer’s own liability.
14.14 Should a provision of these terms and conditions and the further agreements made be or become invalid, the validity of the contract and these terms and conditions of business shall not be affected in other respects. The contracting parties are obliged to replace the invalid provision with a provision that comes as close as possible to the invalid provision in terms of its economic success. As long as this provision has not been agreed between the contractual partners, the statutory provision shall apply.
14.15 The law of the Federal Republic of Germany applies exclusively, unless otherwise agreed. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (UN Sales Convention) is excluded.
14.16 The place of performance for the delivery of goods is the respective plant of the customer to be supplied. Otherwise, the place of performance is the registered office of the customer. A different agreement may be made for the delivery.
14.17 The place of jurisdiction for all disputes arising from this contractual relationship or in connection with it is Augsburg.
As of April 2008