Conditions of sale and delivery (effective date: january 2011)

I. Purview

1. The following conditions shall apply to all contracts, deliveries and other services unless they are amended or excluded with the express consent of the Supplier. Should any provision be or become ineffective, this shall not affect the remaining provisions. These conditions shall apply to existing accounts and all future contracts, deliveries and other services. The Purchaser’s General Terms and Conditions or General Purchasing Conditions shall be binding on the Supplier only if expressly recognized by the Supplier.
 
2. The Supplier reserves without restriction his proprietary rights and copyright exploitation rights to cost estimates, drawings and other documents. The documents may be disclosed to third parties only with the Supplier’s prior consent, and must be returned to the Supplier without delay if the order is not awarded to the Supplier.
 
3. Business post printed by data processing systems (e.g. order confirmations, invoices, account statements, payment reminders) shall be legally binding without a signature.

II. Offer and Acceptance

1. Quotations submitted by the Supplier shall always be subject to confirmation as regards price, quantity and delivery date; alternatively this may be defined in the quotation in terms of period of validity. Any verbal subsidiary agreements or assurances by employees or agents of the Supplier over and above the written quotation shall always be valid only if confirmed by the Supplier in writing.  Documents associated with the quotation, such as illustrations, drawings, weights and dimensions, shall be valid only at the date of the quotation, in the absence of an agreement to the contrary.
 
2. The Purchaser’s orders shall be binding on the Supplier in terms of nature and extent only when confirmed in writing by the Supplier, which may be in the form of an invoice or delivery note or otherwise. Any amendments or extensions shall be valid only if in writing.

III. Prices and Payment

1. Prices are quoted ex works excluding freight, customs charges and packing, plus value added tax at the applicable rate. Unless a fixed price has been expressly agreed, prices shall be binding on the Supplier until the delivery date indicated in the order confirmation. If no such delivery date is quoted, the Supplier shall be bound to the prices agreed for three months from the date of order confirmation. Thereafter the Supplier shall be entitled to adjust prices accordingly in the event of cost increases. This shall not apply in the event of delay in delivery on the part of the Supplier.
 
2. All payments shall be made exclusively to the Supplier according to the agreed conditions. Cash discounts may be arranged and/or applied only if agreed in writing. Payments shall be deemed to have been made only when the amount has finally been credited to the Supplier’s account and is at the Supplier’s disposal there.
 
3. Failure to make payment when due shall constitute a substantial infringement of the Purchaser’s contractual obligations. The Purchaser shall in no circumstances have a lien. The Purchaser can only offset claims that are uncontested or that are recognized by declaratory judgement. If the payment deadline is exceeded, interest shall be charged at the rate of 5 % above the prevailing Bundesbank discount rate unless the Supplier can substantiate higher interest charges.
 
4. The Supplier’s claims shall become due immediately in the event of failure to adhere to the payment conditions, or of circumstances prone to reduce the creditworthiness of the Purchaser. The Supplier shall also be entitled to demand advance payment for deliveries still outstanding, to withdraw from the contract after expiry of a due period of grace, or to demand damages for non-performance; moreover to forbid the Purchaser to sell on the goods, and to retrieve at the Purchaser’s expense goods not yet paid for.
 
5. The Supplier shall have the right to apply payments always to satisfy the oldest due claim, plus costs and default interest thereon, in the following order: costs, interest, main claim. Cheques or eligible bills shall be accepted only on account of performance, and all associated costs shall be chargeable to the Purchaser.

IV. Reservation of Ownership

1. The goods or services supplied shall remain the property of the Supplier until all the Supplier’s claims on the Purchaser have been satisfied, even if the purchase price has been paid for specifically designated claims. In the case of outstanding accounts, the retained ownership of the goods and services delivered (goods subject to retention of title) shall be deemed security for the Supplier’sbalance account.

2. Any treatment or processing by the Purchaser shall not entail acquisition of ownership under Section 950 of the Civil Code on behalf of the Supplier; the Supplier shall retain ownership of the resultant thing, which shall serve as goods subject to retention of title to secure the Supplier’s claims under Point 1.
 
3. When the item is processed by the Purchaser with other goods that do not belong to the Supplier, the provisions of Sections 947 and 948 of the Civil Code shall apply, so that the Supplier’s joint ownership of the new thing now constitutes goods subject to retention of title for the purposes of this condition.

4. The Purchaser shall be permitted to resell the goods subject to retention of title only in the course of normal business and on condition that it likewise agrees with its customer a reservation of ownership as per Points 1 to 3. The Purchaser shall not be entitled to any other authority to dispose of the goods subject to retention of title, especially pledging or transferring them by way of security.

5. In the event of resale, the Purchaser hereby assigns to the Supplier the claims due to it from the resale or other claims on his customers, with all subsidiary rights, until all the Supplier’s claims have been satisfied. At the Supplier’s request the Purchaser shall be obliged to give the Supplier all information and hand it all documents necessary to assert the rights of the Supplier in respect of the Purchaser’s customer.
 
6. If the goods subject to retention of title are resold by the Purchaser after processing as set out in Points 2 and / or 3, or are resold together with other goods not belonging to the Supplier, assignment of the purchase price claim as set out in Point 5 shall apply only to the invoice value of the Supplier’s goods subject to retention of title.
 
7. The Supplier shall be notified immediately of any attachment or seizure of the goods subject to retention of title by a third party. Any resultant intervention costs shall at all events be borne by the Purchaser.

V. Delivery and Acceptance Obligations

1. Adherence to delivery deadlines assumes timely receipt of all documents, necessary approvals and acceptances, especially plans that are to be provided by the Purchaser, and compliance with the agreed payment conditions and other obligations by the Purchaser. If these requirements are not satisfied in good time, the deadlines shall be extended accordingly; this shall not apply if the Supplier is responsible for the delay.
 
2. If failure to meet the deadlines is attributable to force majeure, e.g. mobilization, war, insurrection, or similar events such as strikes or lockouts, the deadlines shall be extended accordingly. This shall also apply in the case of action by official bodies, energy and raw material supply problems, and unforeseeable events, unless the Supplier is responsible for them.
 
3. If an agreed delivery deadline is not adhered to by fault of the Supplier, then the Purchaser shall be entitled after expiry of a reasonable period of grace to demand compensation for default or to withdraw from the contract, provided it drew attention to rejection of the good or service when the deadline was set; no additional claims by the Purchaser shall be admissible.
 
4. When notification is given that the shipment is ready for dispatch but it cannot be sent for reasons that are not the fault of the Supplier, the delivery deadline shall nevertheless be deemed to have been met. Part deliveries and charging for them shall be permissible to a reasonable extent.
 
5. If despatch, delivery or collection is delayed at the Purchaser’s wish by more than one month after notification of readiness for delivery, the Purchaser may be charged storage amounting to 0.5 % of the price of the items to be delivered for each month or part thereof.

VI. Despatch and Passage of Risk

1. Consignments shall always be despatched ex works. In the absence of an agreement to the contrary, packing, routing and means of transport shall be at the option and discretion of the Supplier.
 
2. At the Purchaser’s written request, the goods shall be insured at the Purchaser’s expense for storage, breakage and transport damage.
 
3. In the event of collection or of delivery free of charge, the risk of damage, loss or destruction of the goods shall also pass to the Purchaser when the consignment leaves the Supplier’s works. In the event of any delay in despatch or collection for which the Purchaser is responsible, risk shall pass on notification that the consignment is ready for shipment.
 
4. Any damage or loss shall be confirmed by the carrier in writing on the bill of lading immediately the goods are received, asserting the claims. 

VII. Material Defects and Guarantee

1. The Supplier shall be liable for a period of 12 months for any material defects in the goods or services delivered, the cause of which was already present on passage of risk. Parts subject to wear in normal operation or whose service life in normal use is less than the guarantee period are expressly not covered by the guarantee period. Colour divergences and tolerances in material thickness of plastic components are expressly excluded from the seller’s warranties as well. These are related to production and do not constitute reasons to issue notice of defects. The supplier does not warrant the suitability of plastic components with respect to any kind of chemical influences, or only following express written warranty.

2. Complaints shall be lodged with the Supplier by the Purchaser in writing immediately, or in the case of obvious defects within 5 working days of receipt of the delivery.

3. In the case of complaints, the Purchaser's payments may be withheld to an extent that is reasonably proportionate to the material defects observed. The Purchaser may only withhold payment if a complaint is asserted that is justified beyond doubt. If the complaint is not justified, the Supplier shall be entitled to demand that the Purchaser reimburse the expenses it has incurred.

4. Claims based on defects shall not prevail where there is only a minor variation from the agreed quality, if there is only minor impairment of fitness for use, in the case of natural wear or damage arising after passage of risk as a result of incorrect or negligent handling, excessive stress, unsuitable consumables, defective building work, or as a result of special factors not envisaged in the contract. If the Purchaser or any third party carries out improper modifications or repair work, no complaints based on defects shall likewise prevail for these or any consequences arising therefrom.

5. In the event of a founded and timely complaint, defective goods shall be rectified or replaced at the discretion of the Supplier. The Purchaser must grant the Supplier the necessary time and opportunity to rectify any defect, and provide samples on request.

6. If the Supplier does not rectify the substantiated defect or provide a replacement within a reasonable period of grace set in writing by the Purchaser, or if rectification or replacement is impossible, the Purchaser shall at its discretion be entitled to demand cancellation of the contract (cancellation) or reduction of the purchase price (abatement). No further claims shall be admissible, especially for compensation for consequential loss.

 

VIII. Property Righs

1. In the absence of an agreement to the contrary, the Supplier shall be obliged to effect the delivery free of industrial property rights and third-party copyrights (hereinafter referred to as property rights), only in the country of the place of delivery. If a third party asserts legitimate claims against the Purchaser on account of infringement of property rights by goods or services provided by the Supplier that are used in compliance with contract, the Supplier shall be liable to the Purchaser as follows.
 
2. The Supplier shall at its discretion either obtain a right of use for the goods or services concerned, modify them so that the property right is not infringed, or replace them. If the Supplier is not able to do this on reasonable conditions, the Purchaser shall be legally entitled to withdraw or receive abatement.
 
3. The above named obligations of the Supplier shall prevail only provided the Purchaser notifies the Supplier immediately in writing of any claims asserted by third parties, no infringement is acknowledged, and all defensive measures and conciliation negotiations are reserved for the Supplier. If the Purchaser stops using the goods or services supplied for reasons of loss reduction or for other good reasons, it shall be obliged to point out to the third parties that suspending use does not relate to admission of a property right infringement.
 
4. No claims by the Purchaser shall be admissible if it is responsible for the property right infringement. Neither shall any claim by the Purchaser be admissible if the [infringement of] the property rights is caused by special stipulations of the Purchaser, by an application the Supplier could not foresee, or by the goods or services supplied being modified by the Purchaser, or used by the Purchaser together with products not supplied by the Supplier.

IX. Place of Performance, Place of Jurisdiction, Governing Law

1. The place of performance shall be D-88046 Friedrichshafen
 
2. The place of jurisdiction (also for actions on dishonoured bills and cheques) shall at the Supplier’s discretion be D-88046 Friedrichshafen or the Purchaser’s principal place of business, even if the Purchaser’s habitual residence or customary abode is not known, is located abroad or is relocated there.
 
3. Legal relations between the contracting parties shall be governed by German substantive law excluding the UN Convention on Contracts for the International Sale of Goods.

X. Data Protection

The information associated with the conclusion and administration of contracts shall be processed in our organization or in associated companies taking into account the legal provisions. The address of the data recipients concerned shall be divulged on request.