For the sale of goods, for deliveries and services
of Automobilscharniere Hasten GmbH + Co KG
§ 1 – Scope
1.
The following terms and conditions shall only apply towards entrepreneurs within the meaning of § 310 BGB [Civil Code].
2.
The following terms and conditions shall apply to all of our contracts, deliveries and other services insofar as they are not changed or excluded with our express, written consent. They shall in particular also apply if in the knowledge of deviating terms and conditions of our contractual partner we carry out the delivery/service without reservation. General business terms of our contractual partner shall only apply if we confirm this in writing.
3.
Our terms and conditions shall also apply to all future contracts, deliveries and services even if their text is not sent to our contractual partner again with our offer or our order confirmation.
§ 2 Offer and conclusion
1.
Our offers are without obligation. Contracts and other agreements shall only become binding through our written confirmation or through our delivery/service.
2.
All agreements between us and our contractual partner are to be recorded in writing when the contract is concluded. Agreements reached upon or after conclusion of the contract between our employees or representatives and our contractual partner require our written confirmation in order to be valid, the power of representation of our employees and representatives is insofar limited.
3.
Commercial letters of confirmation of our contractual partner shall not have an effect either without our objection that a contract shall be concluded with contents which deviate from our order and our other written declarations.
§ -3 – Written form
Insofar as a written form is envisaged in these terms and conditions, it shall also be granted by the fact that corresponding declarations are sent by fax or e-mail. A written agreement shall also be deemed as concluded due to the fact that we and our contractual partners respectively submit declarations in a written form with corresponding contents.
§ 4 – Prices, price increase and payment
1.
Our prices shall apply to the delivery ex works plus packaging, freight, insurance and applicable rate of value added tax. We shall charge the value added tax additionally with the rate of value added tax which is applicable on the date of the delivery or service.
If our purchase prices increase in case of contracts, which are to be satisfied more than one month after conclusion of the contract or for reasons for which our contractual partner is responsible can only be satisfied later than one month after conclusion of the contract and/or the wage or salary collective wage agreement, which is applicable to us increases between conclusion of the contract and execution of the contract, we shall be entitled to demand a pro rata increased price corresponding with the percentage share of the affected purchase price and/or the affected wage costs to the agreed price.
2.
We reserve the right to only deliver step by step against payment of the agreed price. Incidentally our invoices are to be paid within 30 days after delivery/service and invoice date without deduction.
3.
Our invoices shall be deemed as acknowledged if our contractual partner does not object in writing within 30 days after receipt of the invoice. We shall point this out to our contractual partner with each invoice.
4.
We shall be entitled to interest in the amount of 8 percentage points above the respective base lending rate from maturity without a further reminder. Further claims – in particular owing to default of our contractual partner – remain unaffected.
5.
It is not permitted to offset against counter-claims which are disputed by us and have not been declared as final and absolute. The assertion of a right of retention owing to claims which are not based on the same contractual relationship, is excluded if these claims have not been acknowledged by us and are not final and absolute.
6.
Our customer may only retain payments owing to a complaint of a defect if there can be no doubts about the entitlement to the defects, in addition only to an extent which is in a reasonable proportion to the occurred defects.
7.
In case one of the events described below occurs or if we only become aware of such an event, that existed already when the contract was concluded, after the conclusion of the contract, then we can demand an advance payment in the amount of the agreed price by our contractual partner, revoke additionally agreed or granted terms of payment or return current bills of exchange and demand immediate payment. This shall apply in the following events:
- Our contractual partner applies for the initiation of in-court or out-of-court insolvency or composition proceedings or in-court or out-of-court insolvency or composition proceedings are initiated over the assets of our contractual partner or the initiation of such proceedings are rejected return unsatisfied.
- There is a written credit information available from a bank or a credit agency from which the credit unworthiness of our contractual partner (e.g. credit rating index of Creditreform > 3.0) or a substantial deterioration of his asset circumstances can be derived or a cheque of our contractual partner which we accepted is not encashed or an objection is filed against this.
- Our contractual partner is in default of payment with a previous business transaction.
8.
If our contractual partner does not satisfy our justified request for advance payment within a reasonable final deadline set by us, although we declared to him that we will reject the acceptance of further services by him after expiry of the deadline, then we shall be entitled to cancel the contract or demand damages instead of the service, this however only with regard to the part of the contract which has not yet been satisfied by us.
§ 5 – Transport and delivery, insurance
1.
The risks shall pass to our customer in any case, irrespective of the place of the shipment, when the goods are shipped even if as an exception carriage free delivery, delivery free building site or free warehouse have been agreed. This shall not apply in cases, in which we transport the goods through own employees or there is a fault of our employees with regard to the loss or the damages of the goods.
2.
We shall charge the packaging at cost price.
3.
In case packaging or shipment regulations of our contractual partner are missing or if a deviation from such regulations appears to be necessary we shall ship the goods at the best of our discretion and without any obligation at the most reasonably-priced or quickest shipment.
4.
We shall only insure the object of delivery against each risk which is requested by our contractual partner and which is insurable, in particular against theft and transport damages at the request of our contractual partner and at his costs.
Cases of damages in transit are to be reported to us immediately, further the recipient must ensure upon delivery that the corresponding claims and reservations are reported to the freight forwarder in time.
5.
If the shipment is delayed at the request of our contractual partner or for reasons for which our contractual partner is responsible then the risk shall pass to our contractual partner with our notification that the goods are ready for shipment already. In this case the goods shall be stored at the costs and risk of our contractual partner.
6.
We are entitled to make partial deliveries and charge these separately insofar as partial deliveries are not deemed reasonable or are useless for our contractual partner.
§ 6 – Delivery and service periods
1.
Delivery and service periods and delivery and service dates shall only be deemed as binding if this has been confirmed by us in writing. A delivery or service period shall begin with the expiry of the day upon which agreement is reached upon all details of the contents of the order, no earlier than with the acceptance of the order by us, however not before the availability of all technical and construction details and provision of all documents, enclosures, etc. which are to be procured by our contractual partner. Agreed deadlines and dates shall be postponed to a reasonable and necessary extent with the delayed availability of the afore-mentioned pre-requisites. Our contractual partner shall be responsible for the burden of proof that he has created the necessary pre-requisites, has made the necessary documents, plans and details available.
2.
Deadlines and dates shall be extended or postponed – also within existing delay – reasonably with the occurrence of force majeure and unforeseen impediments which occur after conclusion of the contract, for which we are not responsible, insofar as such impediments as proven have a substantial influence on the delivery or service. Deemed as force majeure within the meaning of this paragraph, for which we are not responsible, are in any case also strikes and lock-outs.
The afore-mentioned regulations shall also apply if delaying circumstances occur at our suppliers or their sub-suppliers. Insofar as such conditional delays last for more than 3 months our contractual partner is entitled with the exclusion of all other claims to cancel the contract after setting a further final deadline which lasts at least 4 weeks.
3.
Deadlines shall be extended and dates postponed by the period of time in which our contractual partner is in default with his obligations – within a current business relationship also from other contracts.
§ 7 – Declaration concerning the choice of rights after setting a deadline for subsequent performance
In all cases, in which our contractual partner has set us a deadline for subsequent performance owing to a delivery which was not made or not made properly and this deadline has passed unsuccessfully we shall be entitled to request from our contractual partner that he submits a declaration within a reasonable deadline whether he shall continue to assert the claim for satisfaction/subsequent performance despite the expiry of the deadline or passes to the other rights granted to him as an option. If our contractual partner does not submit a declaration within the reasonable deadline set to him the claim for satisfaction/subsequent performance shall be excluded. If our contractual partner informs within the set reasonable deadline that he shall continue to demand satisfaction/subsequent performance then he is at liberty to set a new deadline in this respect and to exercise other rights for the event of its unsuccessful lapse.
§ 8 – Default, exclusion of the service obligation
If we are in default with the delivery or if our service obligation is excluded according to § 275 BGB we shall only be liable for damages under the pre-requisites and to the extent of § 12 Subclause 4, however with the following additional conditions:
1.
If we are in default with the delivery and if there is merely a case of slight negligence on our part then claims for damages of our contractual partner shall be limited to a flat rate compensation for default in the amount of 0.2 % of the delivery value for each completed week of the default a maximum however up to 5 % of the delivery value, whereby we however reserve the right to prove that no damages at all or only slight damages were suffered as a result of the delay in delivery. Additional claims of our contractual partner shall only exist if the default is a result of the fact that we are responsible for wilful intent or gross negligence.
2.
In the event of our default our contractual partner is only entitled to damages instead of the service if he has previously set us a reasonable final deadline for delivery of at least 4 weeks, whereby he reserves the right to grant us a reasonable deadline of less than 4 weeks insofar as a final deadline for delivery of at least 4 weeks is deemed unreasonable for him in an individual case.
3.
A right of cancellation to which the contractual partner is entitled and a claim for damages to which the contractual partner is entitled are principally limited to the not yet satisfied part of the contract unless our contractual partner no longer has any reasonable interest in the satisfied part of the contract.
4.
Claims for damages directed against us owing to default or exclusion of the service obligation according to § 275 BGB shall become statute-barred after the expiry of one year from the statutory commencement of the statute of limitations.
5.
The above regulations shall not apply if it concerns damages from the injury to life, the body or the health of our contractual partner or the damages are due to a wilful or grossly negligent breach of duty by us, one of our statutory representatives or vicarious agents, in addition not in the event of the default if a fixed business transaction has been agreed.
§ 9 – Delay in acceptance of our contractual partner
1.
If our contractual partner is in default with the acceptance of our deliveries or services either in whole or in part then our claim for payment of the corresponding delivery or service shall be due and payable immediately. In addition, we are entitled in this case either to cancel the contract or demand damages instead of the service, this however only with regard to the part of the contract which we have not yet satisfied after the unsuccessful expiry of a reasonable final deadline set by us with the threat that in the event of the expiry of the deadline we shall refuse the acceptance of the delivery or service by the contractual partner.
Our statutory rights in the event of the delay in acceptance of our contractual partner remain unaffected.
2.
Our contractual partner must reimburse us our storage costs, warehouse rent and insurance costs for goods which are due for acceptance, however has not been accepted. However, we have no obligation to insure stored goods.
3.
If the delivery is delayed at the request of the contractual partner or if he is in default of acceptance we may charge storage fees in the amount of 0.2 % of the invoice amount for each started month of the delay, a maximum however of 5 % of the invoice amount after expiry of one month since the notification was sent that the goods were ready for delivery. However, we reserve the right to assert actually incurred higher damages.
§ 10 – Cancellation of orders, taking back of goods, damages instead of
service
If we declare at the request of our contractual partner that we agree with the cancellation of a placed order or if we take goods delivered by us back for reasons for which we are not responsible under the exemption of the contractual partner from his obligation for acceptance and payment or if we are entitled to a claim for damages instead of the service we can demand 15 % of the contractual price share, which corresponds with the affected part of the object of delivery or service, without proof as compensation, whereby our contractual partner reserves the right to prove that no damages at all or only slighter damages were suffered. Our right to assert actually incurred higher damages, remains unaffected.
§ 11 – Condition of goods, additional or shortfall in services
1.
Our details with regard to the object of service and the intended use, concerning dimensions, weights, hardness, useful value or other properties, albeit contained in catalogues, brochures, price lists, specifications, drawings or other documents, merely represent approximate values which are customary for the industry. They shall only serve the mere description of our products and issued obligations if this is expressly confirmed by us.
2.
We reserve the right to deviations in condition, dimensions, colour and other properties insofar as the delivered objects are not substantially impaired thereby in their usability and the deviations are not deemed unreasonable for our contractual partners for other reasons either.
3.
We reserve the right to make deliveries up to 10 % below or above the ordered quantity. Our contractual partner must in any case pay the actually delivered quantity.
§ 12 – Liability for defects and damages
1.
In case of purchase and work supply contracts claims of our contractual partner owing to defects of the object presume claims that he has properly satisfied his responsibilities for inspection and care envisaged in § 377 HGB [Commercial Code] , whereby the complaint must be filed in writing. If our contractual partner fails to file the proper and timely complaint he can no longer assert any claims owing to the circumstances which have to be reported unless we have acted maliciously.
2.
In case of purchase contracts our contractual partner must make a sufficient quantity of parts, which are faulty in his opinion, available to us for inspection and determination of claims owing to defects of the object upon request for inspections by us or third parties in real time, whereby we shall bear the costs for the shipment.
3.
The rights of our contractual partner owing to defects to the delivered object or the provided service shall be determined according to the statutory regulations with the condition that our contractual partner must grant us a reasonable deadline for the subsequent performance of at least four weeks, whereby he reserves the right to set us a shorter deadline in an individual case insofar as a deadline of at least 4 weeks for subsequent performance is deemed unreasonable for him.
If only part of the goods delivered by us is faulty the right of our contractual partner to demand rescission of the contract or damages instead of service is limited to the faulty part of the delivery unless this restriction is impossible or deemed unreasonable for our contractual partner.
Claims for damages of our contractual partner owing to defects of the delivery or service are limited to the extent which can be derived from Subclause 4 below.
4.
Our liability for damages from the injury to life, the body or the health of our contractual partner, which are due to a culpable breach of duty, is neither excluded nor limited.
We shall only be liable for other damages of our contractual partner if they are due to a wilful or grossly negligent breach of duty by us, one of our legal representatives or vicarious agents.
Incidentally, claims for damages of our contractual partner owing to breach of duty, tortious act or all other legal grounds are excluded.
The afore-mentioned liability restrictions shall not apply with the absence of agreed properties and conditions if and insofar as the aim of the agreement was to protect our contractual partner against damages, which were not suffered to the delivered object or the service itself.
Insofar as our liability is excluded or limited this shall also apply to the personal liability of our employees, workers and vicarious agents.
The above liability exclusions shall also apply in any case to follow-up damages.
The afore-mentioned liability exclusions do not however apply to claims according to the Product Liability Act.
5.
Claims of our contractual partner owing to defects to our deliveries or services shall become statute-barred with the expiry of one year after the risk has passed. However the statutory deadline shall continue to apply to the claim for damages and reimbursement of expenses according to §§ 437 Subclause 3, 478, 634 Subclause 4 BGB if it concerns damages from the injury to life, the body or the health of our contractual partner or damages, which are due to a wilful or grossly negligent breach of duty by us, one of our legal representatives or vicarious agents.
The legal statute of limitations shall also apply if we have maliciously failed to disclose the defect.
In the cases of §§ 478, 479 BGB the regulations contained therein shall continue to apply, however the afore-mentioned sentences 1, 2 and 3 shall then also apply to the claim for damages.
§ 13 – Producer liability
Our contractual partner must indemnify us from all claims for damages, which third parties assert against us owing to the regulations relating to tortious acts, to product liability or by virtue of other regulations owing to faults or defects to the goods which are produced or delivery by us or our contractual partner insofar as such claims would also be substantiated against our contractual partner or are no longer substantiated owing to the statute of limitations which is occurred in the meantime. Under these pre-requisites our contractual partner must also indemnify us from the costs of the lawsuits which are initiated against us owing to such claims.
Insofar as the asserted claims are also substantiated against us or are merely no longer substantiated owing to the statute of limitations which has occurred in the meantime, there is a pro rata claim for indemnification of us towards our contractual partner, the scope and amount of which are oriented according to § 254 BGB.
Our indemnification and damage obligations according to §§ 437 Subclause 3, 440, 478, 634 Subclause 4 BGB remain unaffected by the afore-mentioned regulations, only exist however to the extent of § 12 Subclause 4 of these terms and conditions.
§ 14 – Reservation of title
1.
Until the satisfaction of all claims to which we are entitled against our contractual partner either now or in future our contractual partner grants us the following collateral, which we shall release upon request of our choice insofar as their nominal value exceeds our claims in the long-term by more than 20 %:
Delivered goods shall remain our property.
Processing or conversion shall also be carried out for us as producer, however without obliging us. If the goods delivered by us are processed with other objects which do not belong to us then we shall acquire the co-ownership to the new object as a ratio of the invoice value of the goods delivered by us to the invoice value of the other used goods at the time of the processing.
If our goods are combined or mixed with other movable objects to form one uniform object and if the other object is to be deemed as the main object then our contractual partner assigns us pro rata the co-ownership insofar as this main object belongs to him.
A hand-over which may be necessary for acquiring the ownership or co-ownership by us is replaced by the agreement which is reached hereby now already that our contractual partner keeps the object in safekeeping for us as a borrower or, insofar as he does not own the object himself, replaces the hand-over hereby now already by assigning the claim for hand-over against the owner to us.
Objects, to which we are entitled to (co-) ownership according to the afore-mentioned regulations, are hereinafter described as reserved goods.
2.
Our contractual partner is entitled to sell, combine with objects of other parties, to process or mix the reserved goods in proper business transactions. The contractual partner hereby now already assigns the claims ensuing from the sale, combination, processing or mixing to us either in whole or pro rata in the ratio in which we are entitled to co-ownership to the sold or processed object. With the inclusion of such claims in the current invoices this assignment also covers all balance claims. The assignment is carried out with the rank before the rest.
Subject to the revocation we authorize our contractual partner to collect the assigned claims. The contractual partner must remit the collected amounts to us immediately insofar and as soon as our claims are due and payable. Insofar as our claims are not yet due and payable, the collected amounts are to be entered separately by the contractual partner.
Our authorization to collect the claims personally remains unaffected. However, we undertake not to collect the claims as long as our contractual partner satisfies his payment obligations from the collected proceeds, is not in default of payment and in particular no application has been filed for the initiation of insolvency or composition proceedings or no payments have been suspended.
Upon our request our contractual partner is obliged to inform us of the assigned claims and their debtor, to present us the relevant documents and provide us all details which are necessary for the collection. If we are entitled to collect the claims our contractual partner is also obliged to inform the debtors of the assignment, whereby we are entitled to also personally inform the debtors of the assignment.
With suspension of payments, application for or the initiation of the insolvency proceedings, the in-court or out-of-court composition proceedings the rights of our contractual partner for resale, processing, combination, mixing and for installation of the reserved goods, mixing and the authorization to also collect the assigned claims without our revocation shall lapse.
3.
Our contractual partner must inform us of the access of third parties to the reserved goods and the assigned claims immediately. Possible costs of intervention or their defence shall be borne by the contractual partner.
4.
The contractual partner undertakes to treat reserved goods with due care and attention in particular to sufficiently insure these at the new value at own costs against fire, water and theft damages.
5.
In case of behaviour of the contractual partner which is in breach of the contract – in particular default of payment – we are entitled to take the reserved goods back at the costs of the contractual partner or demand assignment of hand-over claims of the contractual partner against third parties without us having to declare our cancellation of the contract previously or at the same time. In particular taking back or attachment of the reserved goods by us is not deemed as a cancellation of the contract unless we have expressly declared this in writing.
6.
Should our reservation of title loss its validity in case of delivery overseas or for other reasons or should we loss the ownership to the reserved goods for reasons of any kind our contractual partner is obliged to grant us another security for the reserved goods or any other collateral for our claim immediately which is effective according to the law applicable at the location, at which the goods are to remain as intended and which shall as far as possible correspond with the reservation of title according to German law.
§ 15 – Property to documents, secrecy
1.
Diagrams, drawings, calculations, samples and models remain our property.
2.
The contractual partners reciprocally undertake to treat all commercial and technical details of which they have become aware from the cooperation and are not obvious as own business secrets and to maintain absolute secrecy about these towards third parties. The contractual partners may only advertise with their business relations with the prior written consent of the respective other partner. For each case of the culpable violation of the afore-mentioned obligations the contractual partners reciprocally promise each other a conventional penalty in the amount of € 6,000.00 in each individual case.
§ 16 – Property rights
1.
If the goods are to be produced according to drawings, samples or other details of our contractual partner our contractual partner shall be responsible for ensuring that no rights of third parties in particular patents, utility patents, other property rights and copyrights are infringed. Our contractual partner shall indemnify us from claims of third parties which ensue from the possible infringement of such rights. In addition, our contractual partner shall assume all costs incurred to us through the fact that third parties assert the infringement of such rights and we defend ourselves against these.
2.
Should results, solutions or technologies be incurred over the course of our development work which are patentable in any manner then we shall solely be the owner of the results property rights, copyrights and rights of use and we reserve the right to carry out the corresponding property right registrations in own name and made out in our name.
§ 17 – Tool production
1.
If we produce tools /equipment for the parts which are to be supplied to our contractual partner by us by order of our contractual partner, our contractual partner must pay 1/3 of the remuneration agreed in this respect directly after the order is placed, a further third with the first sampling, 1/3 after approval of the sample or establishment of the readiness for approval.
2.
The tools/equipment produced by us remain in our possession and property until the respective remuneration to be paid for these has been paid in full, our delivery obligations for the parts which are to be produced from the respective tool or the respective equipment have been settled and all of our claims from the supply contracts which are concluded in this respect with our contractual partner have been satisfied. Only after this shall our contractual partner be entitled to the hand-over of the tools/equipment and to transfer of property.
3.
Claims for defects/warranty claims against us with hand-over and/or assignment of the tools/equipment to our contractual partner are excluded with the exception of claims for damages of our contractual partner due to defects of the tools /equipment which however on the other hand only exist to the extent as recorded in § 12 Subclause 4.
§ 18 – Place of performance, place of jurisdiction, applicable law
1.
The place of performance and exclusive place of jurisdiction for deliveries, services and payments including cheque and bill of exchange actions as well as all disputes ensuing between the parties is Remscheid. However we are entitled to file action against our contractual partner at any other court of jurisdiction according to §§ 12 ff. ZPO [Code of Civil Procedure],
2.
The business relations between us and our contractual partner are exclusively regulated according to the law which is applicable in the Federal Republic of Germany under the exclusion of the international law governing purchases in particular the UN law governing purchases and other international agreements concerning the standardisation of the law governing purchases.