GTC (General Terms and Conditions)
Attention: Business relationships will only be entered into with business partners (companies).
I. General – area of application
1.) In all transactions, these terms of sale shall apply exclusively; terms of the purchaser running contrary to or diverging from these terms of sale shall not be recognized unless they are expressly confirmed in text form. These terms of sale shall also apply when the delivery to the purchaser is performed without reservation in the knowledge that terms of the purchaser run contrary to or diverge from these terms of sale.
2.) All agreements made between the supplier and the purchaser for the purpose of performance of a contract shall be recorded in text form in the contract.
3.) If terms diverging from these terms are agreed for a purchase order, they shall be agreed to be secondary and a supplement.
4.) These terms of sale shall also apply for all future transactions with the purchaser.
The following applies to orders placed over the internet:
1.) Business relations conducted over the internet shall also be subject to these terms of business. The products made available in our mbo internet catalog shall be for informational purposes and non-binding.
2.) The parties herewith jointly agree that the purchaser shall not be provided with technical means with which the purchaser can detect and correct input errors before placing his purchase order. The parties furthermore jointly refrain from having to point out once again to the purchaser on the website that the German, English and French languages are available for conclusion of the contract. The parties also refrain from the express information as to which individual technical steps lead to conclusion of the contract, whether the contract text is saved by us after conclusion of the contract, and whether it is accessible to the purchaser. The parties furthermore refrain from informing the purchaser about which codes of conduct the entrepreneur submits to. Furthermore the parties herewith jointly waive the obligation to inform the purchaser by electronic means without delay of the receipt of his purchase order (Section 312 e para. 1 no. 3 of BGB).
3.) The purchaser expressly refrains from checking the purchase order for correctness and correcting it where necessary.
4.) The purchaser expressly consents that we digitally process and record their personal data.
III. Quotations and conclusions
1.) Quotations shall be subject to change without notice. The conclusion of contracts and other agreements shall not be binding until confirmed in text form.
2.) The information in brochures, advertisements and price lists or the data in the documents belonging to the quotation shall be without obligation unless expressly declared as binding in the acknowledgement of order.
3.) Verbal subsidiary agreements and assurances shall require the confirmation in text form of the supplier to be effective.
1.) Orders for which fixed prices have not been expressly agreed shall be invoiced at the listed prices valid on the date of delivery. The invoice shall be in Euros. Invoice prices are always net prices plus any value-added tax payable. We reserve the right to make a surcharge for quantities below the minimum order quantity.
2.) The prices are ex factory or warehouse and shall not include packaging (service and cardboard packaging)), freight, postage, duties, taxes and insurance costs.
3.) If a substantial change in the price factors of labour, raw materials and tooling costs or other operationally related cost factors (e.g. taxes etc.) occurs, the prices shall rise to compensate for such price and cost increases. In any event, each contract partner can demand negotiations to set a new price. Price changes shall be notified to the purchaser in text form no later than 30 days before they come into force. In the case of price increases exceeding 5% of the current price, the purchaser shall be entitled to extraordinary termination of the contract at the time the new prices come into force.
4.) In the case of foreign business transactions and a pricing structure in a foreign currency, all changes in the agreed foreign currency or in the exchange rate relative to the Euro occurring after conclusion of the contract (date of acknowledgement of order) shall affect the purchaser.
V. Terms of payment
1.) The time allowed for payment is 30 days from the invoice date and is deemed to be the agreed period of payment. The invoice shall be deemed as received 2 days after being issued. The receipt of payment by the supplier, and hence the value date on the account, shall be deemed as the agreed criterion for payment punctuality.
2.) Payments can, at the discretion of the supplier, be offset against other accounts receivable still unsettled.
3.) If the supplier provides large quantities of raw and secondary materials at the purchaser‘s request, he may then demand immediate payment. Appropriate part-payments may also be demanded depending on the extent of the work performed.
4.) In the event that payment periods are exceeded, the supplier shall have the following rights without reminder:
a) The supplier can after setting a commensurate grace period rescind all contracts or demand damages (in lieu of performance, Section 281 of BGB). Furthermore, he shall be entitled to assert retention of title and to repossess any merchandise supplied by him. In addition, he can also demand or reject securities and immediately call due any outstanding payments. Similarly, he can demand that the merchandise supplied by him be separately held in store by the purchaser and identified as the property of the supplier.
b) Furthermore, the supplier can demand from the purchaser interest at 8 % above the respective basic interest rate with effect from the start of the delay. The supplier can, subject to the provision of appropriate proofs, claim a higher interest rate for damages.
c) The supplier reserves the right to claim for further damages caused by delayed performance.
5.) If changes in the ownership or legal form of the company or other changes with regard to the purchase occur that might influence the economic situation, the supplier shall be informed thereof without delay. In the event of the occurrence of such changes, the supplier can for further performance of the order demand either the provision of securities for all claims arising from all existing contracts or immediate payment of such claims. Until payment or provision of securities is received, the supplier may optionally refuse further performance of the contract, rescind all contracts or demand damages for non-performance.
6.) Bills of exchange shall only be accepted on account of performance without liability for protest, and only after agreement and on condition of their discountability. Discount charges shall be invoiced starting from the due date of the invoice amount.
7.) If the purchaser suspends his payments, if he is over-indebted or if the opening of insolvency proceedings has been applied for against his assets, the total accounts receivable of the supplier shall immediately fall due. The same shall apply in the event of any other major deterioration in the economic situation of the purchaser. The supplier is in such cases entitled to demand adequate securities or to rescind the contract.
8.) Representatives shall not be entitled to receive payments unless a written power of attorney to do so is presented
1.) Delivery periods shall only be binding when they have been expressly confirmed as such by the supplier.
2.) The delivery period shall begin on the date on which agreement between the purchaser and the supplier on the purchase order is available in text form. The delivery period shall be deemed as met if the merchandise has left the factory or the warehouse within that period. If the dispatch or pickup is delayed for reasons beyond the control of the supplier, the period shall be deemed as met if readiness for dispatch is notified within the agreed period.
3.) If non-compliance with the period can be verifiably attributed to war, civil disturbance, strike, lock-out, incorrect or non-punctual delivery by sub-suppliers, or the occurrence of unforeseen obstacles beyond the control of the supplier or his sub-suppliers, the period shall be extended commensurately.
4.) The purchaser may only demand a contractual penalty if this has been agreed upon separately. Claims for damages also suffered by the purchaser as a result of delayed delivery, in particular those arising from culpable contract infringement, negligently committed and unlawful acts and for consequential damage shall be ruled out. This shall not apply if for legal reasons liability is mandatory for damage that is predictable and typical for the contract in cases of intent or gross negligence, absence of assured properties or infringements of essential contractual obligations due to simple negligence.
5.) Other claims for damages on the part of the purchaser shall be ruled out in all cases of delayed delivery, even after the expiry of a possible grace period granted to the supplier. This shall not apply if for legal reasons liability is mandatory for damage that is predictable and typical for the contract in cases of intent or gross negligence or of infringements of essential contractual obligations due to simple negligence.
6.) In all other respects, the right of the purchaser to rescind the contract after expiry without result of a commensurate grace period granted to the supplier shall remain unaffected.
7.) If the purchaser causes a delay in the dispatch or delivery of the supplied articles, the sup-plier shall be entitled to charge the resultant extra costs to the purchaser.
8.) Part-deliveries are permissible.
9.) In the case of agreements relating to part-deliveries and in the case of continuous delivery, call-off orders and batch assignments relating to part quantities shall be indicated in text form to the supplier. If the contractual quantity is exceeded by the individual call-off orders of the purchaser, the supplier shall be entitled to delivery of the excess following verification of his delivery capability. The supplier can charge the excess at the prices valid at the time of the call-off order or delivery. The delivery/purchase quantities in call-off orders shall be distributed evenly over the duration of the contract and also accepted by the purchaser in this way.
10.) In the case of delivery of drawing parts, the right to a quantity tolerance of +/- 10% is reserved.
VII. Transfer of risk, dispatch and freight
1.) The risk (transport and payment risk) shall pass to the purchaser once the merchandise has left the factory or warehouse of the supplier, regardless of whether this is with his own or with external transport means.
2.) If the merchandise is ready for dispatch and if dispatch or pick-up is delayed for reasons beyond the control of the supplier, the risk shall pass to the purchaser upon his receipt of the indication of readiness for dispatch.
3.) A delivery shall not be insured against theft, breakage, transport, fire and water damage or against other insurable risks unless specifically requested by the purchaser. If the purchaser demands the conclusion of such insurance, it shall be taken out at the expense of the purchaser. Fees for containers and pallets belonging to the railways shall be paid by the purchaser.
4.) Material provided by the purchaser shall be sent to the supplier. The supplier shall not accept any guarantee for the quantities and qualities stated for the material provided by the purchaser. In the case of large quantities, the costs resulting from the transfer and also the warehousing costs shall be reimbursed. In the case of provision of raw and secondary materials by the purchaser, the packaging material and the waste shall remain the property of the purchaser. The latter shall also arrange for the removal / disposal of such material or waste and cover the associated costs, where this is demanded by the supplier. The insurance of the raw and secondary materials, samples, originals or other provided articles transferred to the supplier against theft, fire, water damage or other risks shall be initiated by the purchaser. The same shall also apply when finished merchandise paid for by the purchaser is placed in storage at the latter‘s request.
VIII. Retention of title
1.) The supplied merchandise shall remain the property of the supplier until the complete performance of all claims he has against the purchaser (retained-title merchandise), even if such individual merchandise has been paid for. The inclusion of individual receivables in a current invoice and the setting-off and their recognition shall not affect the retention of title. Only the complete and unconditional performance of all requirements of the supplier shall be deemed as payment.
2.) The purchaser shall be entitled to re-sell the retained-title merchandise in the course of normal business unless he is in arrears; attachment or assignment as security is however not permitted to him. The purchaser shall be obligated to safeguard the rights of the supplier when re-selling retained-title merchandise on credit. Existing, impending or past impairment of the rights of the supplier, in particular global assignments, attachment etc. shall be notified by the purchaser to the supplier without delay in text form. In the case of attachment, a copy of the attachment report shall be sent without delay. The purchaser shall be obligated to inform the pledgee of the retention of title by the supplier.
3.) The purchaser assigns with immediate effect to the supplier, for the event of re-sale or rental of the retained-title merchandise as permissible in the course of ordinary business operations, and until the payment of all accounts receivable of the supplier, the future accounts receivable from his customers arising from the re-sale or rental as security, without special declarations being required at a later date; the assignment extends also to balance receivables arising from existing current account relationships at the termination of such relationships of the purchaser with his customers. If the retained-title merchandise is re-sold or rented together with other articles without an individual price being agreed for the retained-title merchandise, the purchaser shall assign to the supplier, with precedence over the remaining receivables, that part of the total price requirement or of the total rental that corresponds to the value of the retained-title merchandise invoiced by the supplier. Until revocation, the purchaser shall be authorized to collect the assigned receivables from the re-sale or rental; he shall however not be entitled to dispose of them in another way, e.g. by assignment. At the request of the supplier, the purchaser shall announce the assignment to the customer and hand over to the supplier the documents, e.g. invoices, the latter requires to assert his rights against the customer and to provide the required information. All costs of collection and of any interventions needed shall be borne by the purchaser. If the purchaser receives bills of exchange on the basis of the authorization granted to him to collect the assigned receivables from re-sale, the title to these papers shall pass with the vested right as security to the supplier. The transfer of the bills shall be replaced by the agreement that the purchaser takes them into safekeeping for the supplier and then hands them over without delay and endorsed to the supplier. In the event that the countervalue of the receivables assigned to the supplier in cheques is received by the purchaser or by a bank of the purchaser, the latter shall be obligated to immediately report their receipt and to transfer them. The title to the cheques shall pass with the vested right to the supplier as soon as the purchaser receives them. The transfer of the papers shall be replaced by the agreement that the purchaser takes them into
safekeeping for the supplier and then hands them over without delay and endorsed to the supplier.
4.) If the purchaser processes, converts or combines the retained-title merchandise with other articles, the processing, conversion or combination shall be for the supplier. The latter shall become the direct owner of the object manufactured by processing, conversion or combination. Should this not be possible for legal reasons, the supplier and purchaser are agreed that the supplier shall at every point during processing, conversion or combination be the owner of the new object. The purchaser shall keep the new object for the supplier with the care and diligence required for the prudent conduct of business. The object resulting from processing, conversion or combination shall be deemed as retained-title merchandise. In the case of processing, conversion or combination with other objects not belonging to the supplier, the latter shall be entitled to co-ownership of the new object in the proportion resulting from the ratio of the value of the processed, converted or combined retained-title merchandise to the value of the new object. In the event of sale or rental of the new object, the purchaser herewith assigns to the supplier his claim arising from sale or rental against his customer with all subsidiary rights as security, without special declarations being required at a later date. The assignment applies however only to the amount corresponding to the value as invoiced by the supplier of the processed, converted or combined retained-title merchandise. The share of the receivable assigned to the supplier shall take precedence over the other receivable.
5.) If the purchaser comes completely or partially into arrears with his payment obligation or with the cashing of due bills of exchange or cheques, if he is overindebted or has suspended payment, or if a petition for composition or insolvency proceedings has been filed, the supplier shall be entitled to immediately take possession of all merchandise to which the title is still retained. He may also immediately claim further rights arising from the retention of title. The same applies in the event of any other major deterioration in the economic situation of the purchaser. The purchaser shall grant the supplier or his representatives access to all his business premises during office hours. The demand for handover or repossession shall not be deemed as rescission of the contract. The supplier shall be entitled to use the retained-title merchandise with the care and diligence required for the prudent conduct of business and to make use of the proceeds therefrom to offset his outstanding claims.
6.) If the value of the security exceeds the claims of the supplier against the purchaser arising from the current business relationship by more than 20 % in all, the supplier shall be obligated at the request of the purchaser to release securities due to him at his discretion.
7.) The attachment of retained-title merchandise by the supplier shall not be deemed as rescission of the contract.
8.) The right to all titles and copyrights to cost estimates, drawings, illustrations and other documents is reserved. Such documents shall not be made accessible to third parties. Tools made at the order of a purchaser shall remain the property of the supplier at the latter‘s discretion.
IX. Claims for defects
1.) If the supplied article is defective or becomes damaged within the warranty period, the supplier shall, at his own discretion, and to the exclusion of further warranty claims of the purchaser, supply a defect-free article (subsequent performance) or repair the article. In the event of failure of subsequent performance, the purchaser shall be entitled at his discretion to demand a price reduction or to rescind the contract. The quality and dimensions of parts supplied by us shall be determined exclusively according to DIN standards, unless the application of non-German standards is expressly agreed.
2.) The warranty period for all warranty cases shall start with the delivery of the merchandise to the purchaser.
3.) If the purchaser is commercial enterprise, the warranty period shall end after 12 months.
4.) a) If the purchase constitutes a commercial transaction for both parties, the purchaser shall be obligated to conduct without delay a quality check or defects check on the articles supplied or processed by the supplier. Claims for defects can in the case of discernible defects only by made in text form without delay, and at the latest, however, within 10 calender days of receipt. In the case of defects that are not immediately discernible, claims must be made without delay once the defects are discernible. If the claim for defects is not filed in good time, warranty shall be excluded unless the defect stems from a grossly negligent or intentional infringement of the obligations of the supplier, his legal representative or his agents. Liability of the supplier for damages resulting from injuries to life and limb and to health is not excluded.
b) For mass articles or for small parts in large quantities, the supplier shall not be liable for quantity shortfalls of to 3% short. The same applies when no more than 3% of the supplied parts are defective. This also applies for drawing parts or products made according to the customer‘s requirements.
c) Warranty claims shall be excluded if:
• a defect has its cause in the material provided by the purchaser;
• the defects in the parts have their cause in the raw materials used;
• processing results in shape changes, cracks or impairments of the dimensional and fitting precision that are caused by a lack of data from the purchaser;
• in the case of delivery based on a sample or specimen the supplied parts correspond to that sample or specimen;
• the purchaser further processes the supplied parts despite discernible defects;
• the purchaser himself or third parties make repairs, or changes to or perform other operations on the parts without the consent of the supplier;
• the purchaser demands a method of processing that contradicts technical standards or knowledge;
• the purchaser has omitted to preserve rights of recourse against third parties or to have recourse against third parties against whom we ourselves have claims which we are prepared to assign to the purchaser, provided we are not responsible for the defect, or the satisfaction of claims from the assigned right fails, or the assigned claim has already expired when the defects occur, or we do not or cannot provide information on who is responsible for the defect.
d) The supplier shall not be liable for defects if:
• the defects are due to improper storage by the purchaser;
• the defects result from other external influences either beyond the control of the supplier or from natural wear and tear. In these cases the purchaser shall be obligated to make payment of the agreed amount.
e) The supplier shall not be responsible for minor divergences between the submitted merchandise and that supplied based on samples.
f ) If materials processed by the supplier are incorporated into construction work, the processing by the supplier shall nevertheless not be deemed as a service in a structure unless the purchaser has commissioned the supplier expressly and in text form with the rendering of construction services for a certain construction project designated in detail.
5.) The purchaser shall, after consultation with the supplier allow the latter the necessary time and opportunity to make all repairs and substitute deliveries that appear necessary at reasonable discretion; otherwise the supplier shall be exempted from liability for defects.
6.) If the supplier allows a commensurate grace period granted to him to expire without having supplied a substitute or rectified the defect or if the repair is unsuccessful, the purchaser shall have, to the exclusion of all other claims, the right to demand reduction of the payment or, unless construction work is the subject of the warranty, rescission of the contract at his discretion.
7.) For substitute deliveries and repairs, the supplier shall be liable to the same extent as for the original supplied article; for substitute deliveries the warranty period shall start anew and shall be for one year in the case of a commercial sale.
X. Protective rights
1.) In the Federal Republic of Germany, the supplier shall assume towards the purchaser liability in respect of the freedom of the supplied article from third-party industrial property rights.
2.) This presupposes, however, that the purchaser informs the supplier without delay about claims in respect of protective rights lodged against him by third parties, and that in the handling of such claims and the pursuance of his rights he acts in agreement with the supplier. If one of these preconditions is not met, the supplier shall be exempted from his obligation. If an infringement of the protective rights of third parties takes place for which the supplier is liable in accordance with the terms and if for that reason the purchaser is forbidden by law to use a supplied article either completely or partially, the supplier shall at his own expense and at his discretion either
a) acquire for the purchaser the right to use the supplied article or
b) design the supplied article to be free of protective rights or
c) replace the supplied article by another article of equivalent efficiency that does not infringe any protective rights or
d) take back the supplied article against reimbursement of the purchase price.
3.) If the purchaser makes modifications to the supplied article, installs additional equipment or combines the supplied article with other equipment or devices, and if as a result protective rights of third parties are infringed, the liability of the supplier shall be invalidated.
4.) The supplier shall also not be liable for the infringement of third-party protective rights for a supplied article made according to drawings, designs or other information from the purchaser. The purchaser shall in this case exempt the supplier from any claims of third parties.
5.) The purchaser shall not be entitled to wider-reaching or other claims arising from the infringement of the protective rights of third parties. In particular, the supplier shall not pay compensation for consequential damage such as loss of production, use and profits. These liability restrictions shall not apply if liability is mandatory for damage that is predictable and typical for the contract in cases of intent, gross negligence, infringement of essential contractual obligations or the absence of assured properties. The right of the purchaser to rescind the contract shall remain unaffected.
6.) The purchaser shall not acquire claims for the use of protective rights available to the supplier that relate to the interaction of the supplied article with other articles.
XI. Liability / compensation
1.) In accordance with legal provisions, we have unlimited liability for damage to life, limb and health resulting from a negligent or intentional violation of obligations by us, our lega representatives or agents as well as for damage for which we are liable according to the product liability laws. For damage which is not covered by the the first sentence of the present paragraph and is a result of intentional, gross violation of the contract, as well as by malicious intent on our part, our legal representatives or agents we are liable according to the legal provisions. In this case, our liability for compensation is limited to damage which is foreseeable or can typically arise provided that we, our legal representatives or agents have not acted intentionally. Included in the scope of this warranty is our liability for the quality or durability of the goods or parts thereof but only to the extent to which we have given a guarantee. However, for damage caused by the lack of the guaranteed quality or durability but which is not immediately present in the goods, we are only liable when the risk of such damage is clearly included in the quality and durability guarantee.
2.) We are also liable for damage caused by simple negligence insofar as the negligence relates to the violation of such contractual responsibilities, the fulfilment of which is of special significance for achieving the purpose of the contract (cardinal responsibilities). However we are only responsible insofar as the damage is typically associated with the contract and can be anticipated.
3.) Further liability is excluded irrespective of the legal nature of the asserted claim. This applies particularly to delict claims or claims for compensation for futile expenditure in lieu of performance. This does not affect our liability in accordance with Section IX of these General Terms and Conditions. Where our liability is excluded or limited, this is also valid for the personal liability of our white-collar staff, workers, employees, representatives and agents.
4.) We accept no liability whatsoever in cases where components supplied by us are built into flying objects. The purchaser of such parts is obliged to indemnify the supplier as soon as possible against claims of any sort from third parties.
XII. Place of performance, legal venue and applicable law
1.) The place of performance of all obligations arising from the contractual relationship shall be the head office of the supplier.
2.) If the purchaser is a commercial enterprise, the registered office of the supplier shall be the exclusive legal venue; the supplier shall however also be entitled to take legal action against the purchaser at the court of his habitual residence. The place of performance shall also be agreed as the legal venue when the purchaser has no general legal venue in Germany.
3.) The contractual relationship shall be subject exclusively to the laws of the Federal Republic of Germany.
4.) The contractual partners agree that German law shall apply to all legal relationships arising from this contractual relationship to the exclusion of the UN convention on the international sale of goods (CISG). In cross-border transactions German law shall also apply.
XIII. Severability clause
1.) Should individual provisions of these terms or of the delivery contract or of the further agreements concluded be or become ineffective, this shall not affect the validity and binding nature of the remaining provisions or of the contract as such. The contractual partners shall be obligated to replace the ineffective provisions or to reformulate them such that the originally intended or similar legal and economic purpose is achieved, and that they are replaced by a legally effective arrangement coming as close as possible to them. This shall apply similarly if during performance of the contract a lacuna therein becomes obvious and requires amendment. The contractual parties undertake to amend the ineffective provisions without delay by legally effective agreements, to alter or reformulate the provisions to become effective and/or to close the contractual lacuna.
2.) Should one or more provisions of these terms be ineffective and be unable to be rendered effective by amending or reformulating the contract in such a way that the originally intended legal and economic purpose is achieved, the statutory regulations shall be deemed as agreed. If there is a lacuna in the contract that cannot be closed by the contractual parties, the statutory regulations shall again be deemed as agreed.
The materials provided for machining are commercially available drawn steel rods that have either not been checked for cracks or have been subjected only to limited checks. The surface defects that may therefore occasionally arise in parts are unavoidable and do not represent grounds for claims. The type and nature of any materials certificates that may be delivered with the products must be agreed upon during the processing of the order.
2) Sorted products and level of purity
Products are supplied unsorted as standard. There can therefore be no claim to 100 % consistency and a complete absence of defects. As standard, the parts are not or are only to a limited extent suitable for further processing in automatic feed systems and their suitability must be verified on a case-by-case basis. No specific requirements in terms of product purity are deemed to have been agreed unless such requirements have been explicitly discussed and contractually agreed with the customer in the light of the processes involved and across the entire process chain. On request, it is possible to perform a 100 % technical and commercial inspection for defined characteristics. Such inspection operations must be agreed on separately for any given order and give rise to a surcharge.
3) Surface coating
Surface coating activities are undertaken using standard market procedures in the form of an industrial mass coating process. Consequently, the supplied products fulfil no requirements in terms of defined visual appearance or suitability as decorative items. It is perfectly possible for the items in delivered batches to have different appearances due to process-related factors and there can therefore be no assurance of a uniform visual appearance in and between batches. In the case of barrel-plated products delivered as bulk goods, there is a risk of localised defects, bundling, deformations and, depending on the weight and geometry of the parts, damage to edges or surfaces. Crevice corrosion may occur around joins.
It is physically impossible or possible only with restrictions to coat drilled blind holes, with the result that rust may form in such areas. In the case of zinc flake coatings, it is necessary to accept the system-related risks, such as localised defects, accumulations of coating material, tolerance impairments and bundled, adhering parts. Industrially coated products are delivered unsorted and unseparated. Should the customer wish for sorted products then it may be possible to evaluate such wishes from a technical and commercial perspective and price them accordingly.
4) Hardening process
In the case of parts that are treated in a run-through process, process-related deformations and, in certain cases, variations in hardness may occur. Technologically, this possibility cannot be excluded and products treated in this way are not subject to a 100% inspection in this regard.
mbo Osswald only takes responsibility for engineering activities in respect of new developments undertaken by the customer if this has been agreed on beforehand on a project-specific basis. If the manufacturer is unaware of the product requirements, is aware of them only with restrictions or has not been fully informed of them or does not possess the equipment required for adequate testing, then no liability will be assumed in respect of suitability and desired functionality. In general, mbo‘s customer, as the user of the development, is initially responsible for configuration, the conduct of test sequences and the establishment of market readiness.
Sampling is performed on the basis of the VDA format or in accordance with PPAP and is charged for in the same way as cover sheet inspection and IMDS entries. The nature and scope must be agreed on during the processing of the offer or order. Salt spray tests to establish corrosion resistance are performed externally and are charged for on a time and cost basis.
I) General – Area of application
1.) Our purchasing conditions are exclusively binding; we do not recognise conditions of our suppliers which conflict with or deviate from our own purchasing conditions unless we have specifically agreed to these in text form. Our purchasing conditions are also valid when we accept deliveries from the supplier unconditionally even though we are aware of conditions of our suppliers which conflict with or deviate from our own purchasing conditions. We assume with the order confirmation that our conditions have been accepted by the supplier even when this confirmation is based to some extent on conflicting conditions of the supplier. Differently phrased conditions of the supplier are hereby contradicted in advance. The execution of the order by the supplier - even without confirmation in text form – confirms the recognition of our following conditions. An absence of reaction from us to deviating conditions or contradictory confirmations of our suppliers is not to be interpreted as our agreement.
2.) All agreements made between us and the suppliers concerning the execution of this contract are to be confirmed in text form in this contract.
3.) Our purchasing conditions are also valid for all future business deals with the supplier.
4.) In accordance with the German Data Privacy Protection laws, we are entitled to record, transfer, modify and delete personal and company data of the supplier for the fulfilment of our business purposes and aims. The supplier will be informed accordingly when his data is recorded for the first time.
II) Quotation – Quotation documentation
1.) Quotations are to be binding and supplied free of charge. In his quotation, the supplier must strictly adhere to our enquiry as regards the quantity and specification and make us specifically aware of any deviations.
2.) We retain our right of ownership and copyright protection on diagrams, drawings, calculations and any other documentation which must not be made available to a third party without our agreement expressed in text form. This documentation is exclusively intended for the manufacture of the items in our order and must be returned to us without having to be requested
by us after the order has been fulfilled. They are not to be disclosed to third parties. The drawings and other above-mentioned documentation prepared in text form, as well as the drawings and documents produced by the supplier in accordance with our specifications may be neither used again nor reproduced. The reproduction of such items is only permitted for internal company purposes and in accordance with copyright protection conditions. Sub-suppliers are to be informed of this obligation. The contract parties agree to treat all not-obvious commercial and technical details of which they become aware during the fulfilment of the contract as company secret. The supplier is responsible for all damage caused by an infringement of this provision.
3.) Our agreement on drawings, calculations and other technical documentation does not affect in any way the guarantee obligations of the supplier in respect of the items to be supplied. This also applies to our suggestions and recommendations.
4.) The supplier may only publicise his business connection with us after prior agreement has been received from us in text form.
III) Order – Contract conclusion
1.) Orders, agreements and alterations are only binding when they have been issued or confirmed by us in text form. Correspondence is to be carried out with our purchasing department. Discussions with other departments which result in agreements being made which affect conditions already agreed in the contract need to be specifically confirmed in text form by our purchasing department who will issue a supplement to the contract
2.) The supplier is obliged to accept our order within a period of 2 weeks. The orders and our delivery requests are assumed to have been accepted when the supplier does not contradict them in text form within 2 weeks of receipt. The supplier is to treat the contract conclusion confidentially.
3.) We are entitled to withdraw our order when the supplier has not accepted it in text form within two weeks of receipt. (Confirmation of order).
4.) In the case of Acts of God, important reasons or occurrences beyond our control which result in a restriction or closure of our company, we are entitled to withdraw either partially or completely from the contract or to demand a postponement of the contract without additional claims from the supplier. In particular, Acts of God, important reasons or occurrences beyond our control are wars, riots, confiscation, strikes, lock-outs, fire damage, machine damage, public authority measures or other company stoppages. This applies equally well to the suspension of payment by the supplier as well as the presentation of a petition to institute composition or insolvency proceedings over the assets of the supplier. Claims for damages by the supplier cannot be instituted out of these.
5.) The documentary evidence of origin required by us is to be provided by the supplier without delay and must include all necessary information and be correctly signed. The same applies to the proof of turnover tax in the case of foreign and inter-community deliveries. The supplier is to inform us without delay when a delivery is completely or partly subject to export restrictions according to German or any other law. Factory certificates, manufacturer’s declarations according to the EU machine guidelines and/or declarations of conformity are to be included with the delivery and/or invoice depending on the statutory provisions. The GE-identification is to be attached in line with the statutory regulations.
6.) The formulation of the commercial clauses is to be in line with the INCOTERMS in the version valid at the conclusion of the contract.
7.) The sub-letting of orders to third parties without our permission, expressed in text form, is not allowed and entitles us to withdraw either completely or partially from the contract as well as claim compensation.
8.) In the case of a termination of the contract by us, the most the contractor is entitled to is that proportion of his remuneration which corresponds to the performance which he has achieved up to the time of termination.
9.) Should the purchaser have made the supplier aware of the intended use of the goods ordered or the performance expected from them or if this is apparent to the supplier without such information, then the supplier is obliged to inform the purchaser without delay should he be of the opinion that the delivery or performance of the goods to be delivered is not suitable to fulfil the intended application.
10.) Should changes have been made in the method of joining the specified materials or in the constructional details compared with similar deliveries or performance previously supplied to the purchaser, then the supplier is obliged to inform the purchaser in text form without delay. These changes require the agreement of the purchaser in text form.
IV) Prices – Conditions of payment
1.) The prices are to be listed excluding turnover tax. They are to be fixed prices and carriage page to the delivery address specified by us.
2.) The agreed prices are to include all the costs incurred by the supplier for freight, insurance and packing etc. and this is also to apply when packing materials are left with us on a loan basis. We are entitled to specify the method of packing, the way of transport as well as the transport insurance and demand proof of the costs of the freight and transport insurance.
3) The agreed prices are to include all supplies, performance and additional performance needed to manufacture in acceptable form the entire products mentioned in the contract in accordance with the quotation documentation, drawings and/or suppliers catalogues. In the case of obvious mistakes, misprints or calculation errors, these are not binding for us. The prices are to apply to all deliveries including subsequent orders and deliveries inso- much as new prices were not specifically agreed in text form. The way of formulating the price shall not affect the agreement on the place of performance.
4.) We can only process invoices when these – in accordance with the requirements in our order – quote the order number mentioned therein; the supplier is responsible for all consequences arising from non-compliance with this requirement. Invoices cannot be settled as long as this information is missing.
5.) In the absence of any other agreement made in text form, we pay the purchase price with 3% discount within 14 days calculated from the date of both the receipt of the goods and the invoice or net within 30 days from receipt of the invoice. Our payment is made subject to a correction should subsequent complaints occur. If we are to make payments for which we have not received any goods or performance, then appropriate bank guarantees in our favour are to be furnished before we can make any such payments. It is permissible to deduct discount in the case of offsetting or retention because of defects.
6.) The time limits start from the date of receipt of the invoice however not before receipt of the goods or acceptance of the performance. Should documentation and test certificates be part of the scope of delivery, then the time limits do not start until these have been handed over to us as agreed in the contract. Delays in payment caused by incorrect delivery notes or incomplete invoice details entitle us nevertheless to deduct the appropriate discount.
7.) The criteria for payment are the quantity, weight or other factors/units determinable by us. Additional or short deliveries without our agreement are treated as incorrect deliveries. We reserve the right to recognise additional or short deliveries.
8.) In the case of faulty deliveries or performance we are entitled to retain a percentage of the payment until the contract has been correctly fulfilled. The time limit for payment starts when the defects have been completely remedied. Payment does not imply that we have accepted the delivery or performance as complying with the contract. In the case of the acceptance of premature deliveries, payment is not due until the agreed delivery date.
9.) The right to offset or retain is available to us in accordance with the law. We are entitled to offset all our own demands against those claims which the supplier makes against us.
10.) The supplier is not entitled to transfer rights and obligations arising out of the contract entered into with us to a third party without our prior agreement. Only the supplier is responsible for all demands.
11.) The supplier is not entitled to assign his claims against the purchaser without the latter’s agreement in text form or to let a third party collect these; this does not apply in the case of an effective agreement on the extended reservation of ownership by the supplier.
V) Delivery time
1.) The delivery time specified in the order is binding. The delivery time starts when the order is received by the supplier. Under fulfilment of the delivery time we understand the delivery of the complete order to us. As day of delivery we mean the day the items ordered and the shipment notes arrive at the destination specified in our order or the performance we expect is completed there. The acceptance of the overdue delivery or performance does not imply a renunciation of a claim for damages. Should emergency measures be necessary to obtain the missing parts, then the extra costs incurred will be passed on to the supplier. The delivery must exactly match the order; short, partial or extra deliveries need our prior agreement in text form.
2.) The supplier is obliged to advise us in text form as soon as possible when he becomes aware of or recognises the possibility of circumstances which could result in his not being able to keep the promised delivery date. The responsibility to keep the agreed delivery date is thereby not affected. A delivery in advance may only be carried out by presenting our agreement, expressed in text form, and does not affect the agreed payment dates.
3.) In the case of a delay in delivery, we are entitled to the statutory claims. When the supplier delays delivery, we can allow him a reasonable “period of grace”. We then have two alternatives: Should nothing be delivered during this extension, then we can let a third party complete the order at the expense of the supplier or we can withdraw from the contract completely. In the case of slight negligence, compensation is limited to the extra freight costs, retrofitting costs and extra expenditure for the purchase of alternate parts. Delays caused by sub-suppliers is the responsibility of the supplier himself. In particular, we are entitled to claim damages after the fruitless expiry of a reasonable “period of grace”.
4.) An “Act of God” only relieves the supplier when he can advise us in good time of the circumstances which are supposed to be the reason for the delay so that replacements can be obtained. In the case of the delivery date being exceeded due to an “Act of God” or industrial dispute beyond the supplier’s jurisdiction, we can either postpone the execution of the order to a later date or after the fruitless expiry of a reasonable “period of grace” withdraw either partially or completely from the contract. The supplier is not entitled to make any claim out of this.
VI) Shipping – Transfer of risk
1.) Unless otherwise agreed in text form, the supplier has to ship free of charge to the buyer’s address. The transport insurance to the destination is to be carried by the supplier. In the case of prices listed as ex-factory or ex-warehouse, the supplier is to ship the goods by the most economical way should we have not specified a particular way of transport. Extra costs incurred by the supplier for not complying with this requirement are to be born by the supplier. In the case of prices listed as free to the receiver, we can also specify the method of shipment. Extra costs incurred in order to fulfil the delivery date (for example express or courier) are to be born by the supplier.
2.) The place of performance for deliveries or performance by the supplier is the forwarding address given in the order. Should a forwarding address not be specified and the place of performance can also not be obtained from the nature of the obligation, then the address of the purchaser is to be accepted as the place of performance.
3.) Every delivery is to be accompanied by two copies of the delivery note which must contain an exact description of the scope of the delivery, article, description and quantity etc. and be exactly in line with our order. In order to guarantee proper and mistake-free processing of the shipping documents, invoices and similar documents, each should quote the necessary information (our reference, department, order number, commission number, subject, remarks etc.). Should the supplier not adhere to our information and we incur damage and/or costs, then the supplier will be obliged to pay damages to us. Until the delivery or performance has been fully handed over / carried out and accepted by us, the supplier bears the risk of loss, accidental loss or damage independent of the list price.
4.) Delivery objects are to be professionally packed and shipped. Packing and shipping instructions are to be complied with. A delivery note or packing list is to be included with each shipment. All documents are to quote the order numbers and the purchaser’s marking (labelling) as specified in his order. A notification of shipment is to be sent to the purchaser at the latest on the day of shipment. Should the purchaser incur extra costs due to the supplier not complying with the above-mentioned conditions, then these are to be born by the supplier.
5) Insofar as the packing of the objects to be delivered is necessary or customary, it is the responsibility of the supplier to provide adequate packing at his own expense. We are only prepared to pay for packing materials in addition to the agreed purchase price when a refund for these was specifically agreed. We reserve the right to return the valuable packing material used in the shipment to the address of the supplier and to invoice him for the full hire costs or the value of the material.
6.) The quantities and weights of the goods supplied will by checked by our receiving department and their findings will be accepted by us should they deviate from the information on the delivery note. Should the supplier dispute their findings, then it is his responsibility to prove to us that the quantities and weights of the goods quoted on his delivery note were actually delivered.
7.) Should an “Act of God” or other circumstance including industrial disputes beyond our control make it impossible or unreasonable for us to receive a shipment, then we are entitled to refuse. In such a case, the supplier has to store the goods to be delivered at his own expense and risk. This is not to be interpreted as a case of delayed acceptance.
8.) Should shipments not be accepted by us or defective goods sent back, then the return shipment is at the risk of the supplier. The current value of the goods returned will be invoiced to the supplier.
9.) We assume that the supplier, as distributor of goods, possesses extensive experience about the possible risks of shipping, packing and storing etc. and that his goods comply with the relevant regulations. The latest national and internationally valid regulations concerning the packing, identification and declaration are to be complied with. The supplier is responsible for all damage which could occur should existing regulations on the handling (packing, shipping, storing) of dangerous goods not be complied with. The supplier is fully responsible for adhering to the relevant regulations when shipping dangerous goods.
10.) It is the responsibility of the supplier to carry out any necessary maintenance or inspection work at his own expense as well as to adequately insure the goods entrusted to him. He should be able to substantiate this to the purchaser on demand.
VII) Quality control - Warranty
1.) The supplier guarantees that the delivery or performance is free from defects and that the promised characteristics are present.
2.) We are obliged to inform the supplier in text form in accordance with the conditions of a normal course of business as soon as concealed defects in the delivery or performance are detected.
3.) The checking of drawings, approval of samples, checks and prior acceptance by us does not relieve the supplier of his responsibility and from he agreed guarantee.
4.) We reserve the right during manufacture and before delivery to check the quality of the finished parts as well as the compliance with the other specifications of the order in the factory of the supplier and his sub-supplier. Should we have reserved the right to carry out a technical acceptance of the finished parts before delivery either by us or a third party commissioned by us, then we or the third party are to be advised in text form 14 days before the shipment is ready. The acceptance costs incurred by the supplier are to born by him.
5.) The goods must comply with the samples approved by us, the agreed quality characteristics and specifications. Guaranteed characteristics are to conform to the quality characteristics of the sample. The goods supplied must comply with the relevant statutory regulations - in particular the protective regulations in the sense of § 823 Section 2 of the BGB (civil code). Should there be deviations between the samples and/or drawings supplied by us or from our specifications, then the supplier is obliged to advise us without delay and clarify the situation before production begins.
6.) The supplier is required to keep records, particularly of his quality control, and make theses available to us on demand. The supplier herewith agrees to quality audits for the purpose of confirming the effectiveness of his quality control procedure either by us, someone commissioned by us or should the occasion arise in the presence of a customer.
7.) Each supplier is responsible for the quality of the materials he obtains from his sub-supplier. Before commencing manufacture he must convince himself that our quality criteria are fulfilled and no defects are present.
8.) After remaking, repairing or modifying tools, templates or models, sample from each are to be made first and sent to us together with a test report. Our purchasing department is to be advised of changes in the manufacturing process, in the materials used, in the constructive design and the sub-suppliers material number.
9.) Complaints of defects by us are considered to be timely when they have been received by the supplier within a time limit of 10 working days from the detection of the defect.
10.) We are not obliged to carry out a 100% check on all rejected batches. Should this be desired by the supplier, then he must pay for all the costs arising whereby our agreement to carry out such tests must be available.
11.) We are entitled to the full statutory warranty claim; independently of this we are entitled to demand from the supplier either the elimination of the defects or the delivery of replacements. In this case, the supplier is obliged to make all the arrangements necessary for the purpose of eliminating the defects or supplying replacements. The supplier is responsible for the costs of returning defective goods and the associated risk. The delivery of the replacement parts is to be post and packing free. In particular, our right to claim damages is hereby not affected.
12.) In urgent cases or when the supplier delays the elimination of the defects, we can carry out the necessary measures ourselves at the expense of the supplier or instruct a third party to do them. We will inform the supplier before carrying out these measures. Should this not be possible, then in urgent cases the measures needed to avoid loss can be carried out without prior notification; in these cases we will inform the supplier later and as soon as possible. The warranty responsibilities of the supplier are not affected.
13.) The supplier guarantees the fault-free execution of the delivery as specified in the order and in accordance with the latest scientific and technical knowledge, material quality and complying with all the relevant standards and harmful substance regulations. The supplier is to manufacture the goods ordered and/or deliver them in such a way that they can be processed or used without danger. In the case of dangers of any kind which could be caused by the goods supplied, we are to be made aware of this through clear and generally understandable/accepted warning symbols, notices and the customary usage instructions and protective regulations. The supplier is to advise us on his own accord by delivering special storage, handling, processing and factory regulations. In the case of commercial articles, each individual article is to be clearly marked with these user regulations otherwise the supplier is responsible for damage which could occur by us due to ignorance of these regulations or by claims made by third parties against us. In the case of the recourse of a third party to such a claim, the supplier is to indemnify us against loss and legal action by wavering the plea of expiration of responsibility and indemnify us against claims by third parties if required by us.
14.) The supplier is to waive the plea of delayed notification of complaints (§ 377 HGB).
15.) The guarantee period is 12 months commencing from the date of the transfer of risk. For the enforcement of a guarantee claim, the supplier is to waiver the plea of expiration of responsibility for the period of 12 months after the termination of the guarantee period.
16.) The expiration of responsibility is blocked by the notification of complaints until the time when the supplier finally rejects our claims. The applicable guarantee conditions are also valid for the delivery of replacements and reworking. The guarantee period for this performance starts once again after the defects have been rectified.
VIII) Product liability - Indemnification – Third party insurance cover
1.) The supplier accepts the full liability for his product no matter on which legal position this is based.
2.) Defects concerning safety that are recognised later from observation of product are to be reported to the purchaser by the supplier on his own accord even after expiration of the guarantee period.
3.) The contract parties herewith agree that the supplier has to indemnify us for claims made by a third party in accordance with the third party liability and product liability laws for damage or loss caused by a defect in the product delivered by the supplier. The contract parties also agree that under the term „damage“ mentioned previously, the entire costs which we could incur as a result of a third party liability claim (e.g. compensation to third parties, costs of legal defence, assembly and removal costs, recall action costs etc.) are to be understood. We are also entitled to demand immediate indemnification in the case of a claim by the supplier on account of these costs. Furthermore, the contract parties agree that the supplier is to bear the sole responsibility for the products delivered by him and be liable to compensate us for the full amount of the damages in the sense of § 426 BGB (German Civil Code).
4.) The supplier is also obliged to refund any expenditure in accordance with §§ 683, 670 BGB incurred by or in connection with the recall action or any other activity carried out by us. We will inform the supplier - as far as possible and within reason - of the content and scope of the measures to be carried out and give him an opportunity to comment on them.
5.) The supplier guarantees to take out a product liability insurance with adequate cover – a lump sum of least 10 million Euros per personal/property damage; should we be entitled to claims for damages which are more extensive, then these are unaffected.
6.) The contractual liability of the supplier is not affected.
IX) Property rights
1.) The supplier has the responsibility to ensure that as a result of the delivery and use of the goods, the patent or property rights of third parties is not infringed. The supplier is to fully indemnify us at the first demand against every claim by owners of property rights and is obliged to give us every support in rejecting the claims of third parties and to accept the costs incurred. This also applies to deliveries from a third side to the supplier. The supplier is responsible for ensuring that the goods delivered do not infringe the rights of a third party or are burdened by the rights of a third party.
2.) The obligation of the supplier to indemnify us applies to all necessary expenditure incurred by us out of or in connection with the claims by a third party.
3.) Furthermore, we are entitled to withdraw from the contract should the supplier not eliminate the circumstances causing the infringements within a reasonable period of 3 weeks at the most.
4.) In the case of a legal proceedings caused by the infringement of protective rights or other rights, the supplier has to provide us with a security for the full sum of the impending proved damages. Furthermore, the supplier is still responsible for all judicial cost in and out of court and expenditures arising out of legal proceedings on account of the infringement of protective or other rights.
X) Retention of ownership – Placing at disposal - Tools - Secrecy
1.) Retention of ownership is usually only binding when it has been agreed in text form outside the business conditions of the supplier.
2.) All deliveries made to us must be free from any form and formulation of ownership retention.
3.) When we order parts from the supplier, then we retain ownership of these. Processing or modification will be carried out by the supplier on our behalf. Should the parts reserved for us be processed together other parts which do not belong to us, then we are to acquire partial ownership of the new object in the proportion of the value of our parts to that of the others at the time of processing. Should the mixing take place in the manner that the parts of the supplier are in the majority, then it is agreed that the supplier is to transfer part ownership to us. The supplier acts as custodian of the exclusive ownership or partial ownership for us. Drawings and other documents, jigs and fixtures, models, tools and diverse manufacturing devices which were placed at the supplier’s disposal remain our property.
4.) It is the responsibility of the supplier to carry out any necessary maintenance or inspection work at his own expense as well as to adequately insure the goods entrusted to him. He should be able to substantiate this to the purchaser on demand.
5.) Should the objects place at the supplier’s disposal by the purchaser be modified or converted to a new movable object, then the purchaser is to be regarded as the manufacturer of these items. In the case of a connection or inseparable joint with other objects, then the purchaser is to acquire partial ownership of the new item in relation to the value the objects at the time of connection or joining. Should the connection or joining take place in such a way that the objects from the supplier are to be regarded as the main part, then it is agreed that the supplier is to transfer part ownership to the purchaser, i.e. the supplier is to act as custodian of the partial ownership of the purchaser.
6.) Manufacturing aids such as models, samples, tools, templates, moulds, jigs, drawings and similar items which were placed at the disposal of the supplier or manufactured according to our information by the supplier or a third party on his behalf, are not allowed to be sold to a third party, pawned, disposed of or made available or used in any way by a third party or copied without our approval expressed in text form. The same applies to objects manufactured with the help of these items which are only to be delivered to us provided that we have not agreed in text form to their alternative use. They are not to be used for any other purpose other than that agreed in the contract. After completion of the contract, the manufacturing aids are to be returned to us in a usable condition without us having to specially request this. They are not allowed to be scrapped. The supplier guarantees to keep the little- known commercial and technical information and documentation of which he has become aware as a result of the business relationship secret and to use it exclusively to supply the delivery and performance commissioned from him. Any sub-suppliers are to be placed under an obligation accordingly. The supplier may only give references or quote the name of the company or purchasers trademark when the latter has given his prior agreement in text form.
7.) Tools, moulds, jigs, etc. ordered by us for the purpose of fulfilling an order become our property when they have been procured or manufactured. The supplier is to transfer the ownership, shared ownership and expectancy rights as well as all other miscellaneous rights to us. Handover is thus replaced by the supplier taking care of the objects, marking them as our property and repairing them whenever necessary.In this case § 690 BGB does not apply. Ownership is also accompanied by the right to allow third parties to use the implements for the manufacture of parts. This is particularly valid when the supplier experiences manufacturing difficulties. Should we at our discretion have to ask the supplier to handover the tools, moulds, jigs, etc. he has no right to withhold the items and must comply with our request without delay. We can also leave the tools, moulds, jigs, etc in the possession of the supplier as long as he delivers contractual parts on time and to economic prices. The tools are to be used by the supplier for the exclusive manufacture of the goods ordered by us. The supplier is required to insure at his own expense the tools belonging to us at their new value against fire, water, theft, accidental loss or damage. It is the responsibility of the supplier to carry out any necessary maintenance or inspection work in good time at his own expense. He is to notify us of any abnormal occurrences; should he neglect to do this then we are entitled to claim damages. Other claims for damages remain unaffected.
8.) We retain all rights to drawings and products manufactured according to our specifications as well as processes developed by us.
9.) We are entitled to copy all instructions and documentation from the supplier, process and pass them on to our customers.
10.) Should the supplier violate this provision, then we are entitled, without affecting further rights, to withdraw wholly or partially from the contract and claim damages.
XI) Spare parts and supply willingness
1.) The supplier is required to supply spare parts to reasonable conditions for the period of usage to be expected from normal technical equipment, however for at least 10 years after the last delivery of the items concerned.
2.) Should the supplier cease to manufacture the items in question after the expiration of or during the period of time mentioned in Part 1, then the purchaser is to be given the opportunity to place a last order.
XII) Jurisdiction – Place of performance
1.) If the supplier is registered in the commercial register, then our place of jurisdiction is the seat of our company; we are however entitled to sue the supplier at the court in his home town. If the supplier is a businessman, then the seat of the purchaser is also the exclusive place of jurisdiction for cheque and bill of exchange proceedings. The same place of jurisdiction applies when the supplier, at the time of the institution of legal proceedings, does not have a general place of jurisdiction the Federal Republic of Germany. However, the purchaser is entitled to bring a matter before any legally competent court.
2.) Should nothing to the contrary have been agreed in the order confirmation, then our place of jurisdiction is also the seat of our company.
3.) The law of the Federal Republic of Germany is to apply to all legal matters arising out of or in connection with our orders. UN law is not applicable.
XIII) Invalidity cause
1.) Should any individual provisions in these conditions, delivery contracts or other agreements, be or become invalid or impracticable, this will not affect the validity and liability of the other provisions or contract. The contract partners are required to replace or modify the invalid or impracticable provision with a ruling that is as close as possible in economic purpose to the invalid or impracticable provision in a legally effective and practicable form. The same will also apply when, in the course of execution of the contract, an omission becomes apparent which is in need of rectification. The contract parties are required to augment, change or alter the sense of the ineffective ruling as soon as possible, replace it with a legally effective agreement and/or close the gap in the contract.
2.) Should individual or several provisions of these conditions be impracticable and not able to made into effective conditions by contract changes or changes of meaning that are as close as possible to the original legal and economic purpose, then the agreed legal provisions are to apply. If there is a gap in the contract which cannot be closed by the contract partners, then it is agreed that the legal provisions are also to apply.
GENERAL STANDARD TERMS AND CONDITIONS AND CUSTOMER INFORMATION FOR CONSUMERS (GSTCs of Sale and Delivery for Private Customers) AND CANCELLATION POLICY (SECTION 3)
1. AREA OF APPLICATION
1.1 These Standard Terms and Conditions for Consumers/Private Customers (GSTCs of Sale and Delivery for Private Customers) of mbo Osswald apply to all legal transactions by mbo Osswald with consumers. All offers, deliveries and services by mbo Osswald to consumers are rendered exclusively on the basis of these GSTCs of Sale and Delivery for Private Customers in the relevant version applicable at the time the contract is concluded.
1.2. These General Standard Terms and Conditions apply to all articles which are offered for sale by mbo Osswald to consumers and to all services, regardless of whether the contract is formed by letter, internet, telephone, fax or personal collection.
1.3 On conclusion of the contract mbo Osswald shall make available unsolicited to the contracting party a copy of the GSTCs of Sale and Delivery for Private Customers. These GSTCs of Sale and Delivery for Private Customers can furthermore be viewed online at https://www.mbo-osswald.com under “GSTCs of Sale and Delivery for Private Customers” and downloaded, saved and printed out.
2. OFFER AND CONCLUSION OF CONTRACT
2.1 The presentation of the goods and products particularly on the internet, but also in catalogues, brochures, price lists as well as drawings, illustrations and specifications of weight, price and measurements is non-binding and does not constitute an offer by mbo Osswald, but instead constitutes an invitation to submit offers by interested consumers. Deviations in quality and execution reserved. No liability accepted for printing and representation errors. Errors excepted.
2.2 The customer has the opportunity to submit an order by telephone, fax, e-mail, letter or in person or to communicate an enquiry to us. An immediate order through the internet (Online Shop) is not offered by mbo Osswald. Where an order is placed by e-mail, letter, fax or in person, the consumer shall receive from mbo Osswald an e-mail, a letter, a fax or in person a printed copy which confirms the conclusion of a contract with an acknowledgement in text form of the order by mbo Osswald.
2.3 Only customers of full age can place orders.
3. CANCELLATION POLICY / RIGHT TO CANCEL FOR DISTANCE CONTRACTS WITH CONSUMERS
RIGHT TO CANCEL FOR CONSUMERS
Consumers have the following
RIGHT TO CANCEL
You have the right to cancel this contract within fourteen days without giving reasons. The cancellation period is fourteen days from the day on which you or a third party nominated by you, who is not the carrier, took possession of the last product. To exercise your right to cancel, you must notify us:
mbo Osswald GmbH & Co KG, Steingasse 13, D-97900 Kuelsheim-Steinbach, Germany
Tel. +49 (0) 9345/670-0 Fax +49 (0) 9345/6255 firstname.lastname@example.org
by means of a clear statement (e.g. a letter sent by post, a fax or an e-mail) of your decision to cancel this contract. You may use the attached specimen cancellation form for this purpose, but this is not obligatory.
To observe the cancellation period, it is sufficient for you to send the notification that you are exercising your right to cancel before the end of the cancellation period.
CONSEQUENCES OF CANCELLATION
If you cancel this contract, we must return to you all payments which we have received from you, including the delivery charges (except for additional costs that arise as a result of the fact that you requested a type of delivery other than the cheapest standard delivery offered by us), without delay and at the latest within fourteen days of the date on which we received the notification of your cancellation of this contract. For this return payment we shall use the same means of payment that you used in the original transaction, unless a different means was expressly agreed with you; under no circumstances shall any charges be debited to you for this return payment. We can refuse return payment until we have received the goods or until you have furnished proof that you have returned the goods, whichever is earlier.
You must send back or hand over the goods without delay and in each case at the latest within fourteen days of the date on which you notified us of the cancellation of this contract. The period is observed if you send the goods before the period of fourteen days has expired. You shall bear the direct costs of returning the goods.
You shall only be liable for any diminished value of the goods resulting from handling them in a manner other than what is necessary to ascertain the nature, properties and functioning of the goods.
The right to cancel does not apply to the following contracts:
• Contracts for the supply of goods which are not prefabricated and for the manufacture of which an individual choice or determination by the consumer is decisive or which are clearly tailored to the personal needs of the consumer;
• Contracts for the supply of goods if these were inseparably mixed with other goods after delivery on account of their nature.
4. NON-AVAILABILITY OF PRODUCTS
The contract is concluded subject to the punctual delivery to us by our own suppliers. The proviso applies at the expense of consumers only if mbo Osswald has a concrete covering transaction and through no fault of its own is not supplied by the supplier. mbo Osswald shall notify the customer without delay of the non-availability of the product and reimburse the customer without delay for any counter-performance already rendered.
5. TERMS OF DELIVERY
5.1 A product that is in stock is dispatched within approximately 1-5 working days. If the product is not in stock when it is ordered, mbo Osswald shall manufacture/order the product, inform the customer and notify him of the expected delivery date.
5.2 If not all the ordered articles are in stock or are not available due to prior sale, mbo Osswald shall at a later time effect a full delivery when all the parts are available. The buyer shall be notified of the delivery time prior to conclusion of the contract.
5.3 If mbo Osswald incurs additional shipping costs on account of being given an incorrect delivery address and/or an incorrect addressee, these costs shall be refunded by the customer, unless he is not responsible for the incorrect details.
6. PRICES AND TERMS OF PAYMENT
6.1 The contract for sale or work performance contract is formed at the relevant prices valid at the time the order is placed. The current prices are derived from our current price lists and/or (in the case of custom-made articles) from our offer. The prices given therein are valid for a period of 4 weeks. All specifications/prices are in € (euro). Unless otherwise agreed in the individual case, the specified prices are gross prices that already include the statutory value added tax applicable at the time the service is rendered, currently 19 %. No forwarding charge is incurred when the order is placed since the costs of packaging (service) and of the packing boxes are included in the price. If external costs are furthermore incurred, these shall be additionally allocated. The customer shall be notified of the amount of such costs before he submits his binding order.
6.2 The purchase price of the ordered product shall be due immediately on conclusion of the contract and must be paid by cash in advance against sending of the invoice or acknowledgement of the order, unless purchase on account is agreed.
6.3 mbo Osswald offers the customer different ways to pay for the ordered goods, in addition to payment by cash in advance also purchase on account. Invoices shall be due for payment gross at the latest after a period of 30 days has expired since the receipt of the invoice or a comparable payment schedule and receipt of the goods (of the last product of an associated order); under the same preconditions the customer shall be in default if he does not make payment within 30 days. Cash discounts shall not be given.
6.3.1 When paying cash in advance, the customer shall remit the purchase price to mbo Osswald before the product is dispatched to him or the service is rendered.
6.3.2 mbo Osswald reserves the right to set a minimum invoice value per order.
This minimum invoice value per order is
- Germany: 80 €
- other countries: 150 €
If the respective minimum invoice value per order is not reached, a markup for small-volume purchases of in each case 30 € shall be applied to the order value and charged.
6.3.3 Additional terms: We reserve the right for each order not to offer certain types of payment and to refer to other types of payment. While the customer is in default, mbo Osswald shall be entitled to charge interest on arrears for the year in the amount of 5 percentage points above the valid base rate of the European Central Bank (retrievable at: http://basiszinssatz.info/aktuell/). mbo Osswald shall be at liberty to prove greater damage caused by default and to demand other damages.
6.4 mbo Osswald shall not accept any domestic or foreign bank charges. mbo Osswald reserves the right to make appropriate recalculations in the event of external additional costs/charges. Cash discounts shall not be given, unless otherwise agreed on conclusion of the contract.
6.5 All shipping costs, particularly packaging, transport costs, transport insurance and deliveries as well as if necessary customs duties and taxes etc., shall, unless otherwise agreed in text form or provided for to the contrary in these General Standard Terms and Conditions, be charged to the customer.
6.6 The product shall in the case of cash in advance be dispatched after the full invoice amount has been received by mbo Osswald. In the case of collection from the registered office of mbo Osswald, delivery shall be made contemporaneously against payment for the product, unless otherwise agreed in each case.
7. INSPECTION OF THE PRODUCT ON / AFTER DELIVERY
Customers are requested, directly on delivery or after receipt, to inspect the product for visible transport damage and if necessary missing parts and in particular to disclose obviously recognisable transport damage to the seller. Customers are further requested to have packaging damage confirmed in text form on acceptance of the product from the carrier and to notify mbo Osswald without delay. The customer’s legal claims (rights accruing from defects) remain unaffected.
8. RETENTION OF OWNERSHIP
The product shall remain the property of mbo Osswald until paid for in full.
9. CLAIMS IN THE EVENT OF DEFECTS, COMPLAINTS
9.1 Our products are subject to the law on liability for defects.
9.2 Claims for defects are statute-barred within two years. When used items are sold, this period is one year.
9.3 If the item is defective, the customer shall be entitled to demand as supplementary performance at his discretion that the defect be rectified or a defect-free item be supplied. If the supplementary performance fails, the buyer shall be entitled to reduce the purchase price or withdraw from the contract.
9.4 mbo Osswald shall be entitled to refuse the type of supplementary performance chosen by the customer regardless of § 275 s. 2 and 3 BGB (German Civil Code) if it is only possible at unreasonable expense. Here, it is necessary to take into consideration the value of the item in defect-free condition, the significance of the defect and the question as to whether the other type of supplementary performance could be fallen back upon without substantial disadvantages for the buyer. The customer’s claim shall in this case be confined to the other type of supplementary performance; the right of mbo Osswald also to refuse this under the preconditions of sentence 1 remains unaffected.
9.5 If mbo Osswald delivers a defect-free item for the purpose of supplementary performance, it shall be entitled to demand from the customer the return of the defective item in accordance with §§ 346 to 348 BGB.
9.6 Damage caused by customer actions that are improper or in violation of the contract during setup, connection, operation or storage does not substantiate a claim against mbo Osswald.
Any complaints/claims must be clearly notified (e.g. by telephone, letter, fax or e-mail) to:
mbo Osswald GmbH & Co KG, Steingasse 13, D-97900 Kuelsheim-Steinbach, Germany
Tel. +49 (0) 9345/670-0 Fax +49 (0) 9345/6255 email@example.com
We shall then contact the customer and endeavour to provide a remedy if the complaints are justified.
10. CUSTOM-MADE / ONE-OFF ARTICLES, EXCLUSION OF RIGHT TO CANCEL
A claim for taking back or non-delivery of custom-made or one-off articles shall - unless expressly agreed otherwise - not be entertained. Those goods which are manufactured to customer specifications or are clearly tailored to personal requirements are classed as custom-made or one-off articles.
11. COMPENSATION IN DAMAGES, LIMITATION OF LIABILITY
11.1 In the event of an unintentional and not grossly negligent breach of a (non-fundamental) contractual duty by mbo Osswald, liability shall be limited to typical, foreseeable damage. This limitation of liability does not apply in the event of injury to life, limb or health.
11.2 Claims by the customer arising from guarantees furnished by mbo Osswald and in accordance with productliability legislation remain unaffected by the aforementioned provisions.
12. WHO WE ARE AND HOW YOU CAN CONTACT US
mbo Osswald GmbH & Co KG
Metal processing • Linking technology
Telephone +49 9345 – 6700
Fax +49 9345 – 6255
District Court - Registration Court Mannheim HRA 570277
VAT ID no. DE 811933830
Personally liable partner of mbo Osswald GmbH & Co KG:
mbo Osswald Verwaltungs-GmbH
D-97900 Kuelsheim-Steinbach, Germany
District Court - Registration Court Mannheim HRB 570358
Legal representatives of mbo Osswald Verwaltungs-GmbH:
Dr. Manfred Osswald
13. FINAL PROVISIONS
13.1 Should one or more provisions of the GSTCs for Consumers be void, this shall not lead to the invalidity of the entire contract. The relevant statutory provision shall take the place of the void provision.
13.2 The laws of the Federal Republic of Germany excluding the UN Convention on Contracts for the International Sale of Goods apply.
13.3 The place of performance is the legal domicile of mbo Osswald.