General Terms and Conditions of Delivery and Payment of FORM-TEC GmbH for Industrial Business
Scope of application
1. These terms and conditions of sale apply to entrepreneurs.
Our deliveries and services are provided exclusively on the basis of the following terms and conditions.
Any terms and conditions of business of the partner which are not expressly recognised by us are rejected. They shall not be valid.
General provisions
2. The contracting parties shall immediately confirm verbal agreements in detail in writing.
3. Orders only become binding with our order confirmation.
4. The information and illustrations contained in brochures and catalogues are approximate values customary in the industry unless they have been expressly designated by us as binding
Long-term and call-off contracts, price adjustment
5. Unlimited contracts can be terminated with a notice period of 3 months.
6. If, in the case of long-term contracts (contracts with a term of more than 3 months and unlimited contracts), a significant change in wage, material or energy costs occurs, each contracting party shall be entitled to demand an appropriate adjustment of the price taking these factors into account.
7. If a binding order quantity has not been agreed, we shall base our calculation on the non-binding order quantity (target quantity) expected by the partner for a certain period.
If a contractual partner purchases less than the target quantity, we are entitled to increase the unit price appropriately.
8. In the case of delivery contracts on call, binding quantities must be notified to us by call at least 2 months before the delivery date, unless otherwise agreed. Additional costs caused by a delayed call-off or subsequent changes to the call-off with regard to time or quantity by our partner shall be borne by him; our calculation shall be decisive in this respect.
9. Our sales representatives are not authorised to conclude contracts. Agreements shall only apply if they have been confirmed by us in writing.
Confidentiality
10. Each contracting party may use all documents (including samples, models and data) and knowledge which it receives from the business relationship only for the jointly pursued purposes and must keep them secret from third parties with the same care as its own documents and knowledge if the other contracting party designates them as confidential or has an obvious interest in keeping them secret.
This obligation begins with the first receipt of the documents or knowledge and ends 36 months after the end of the business relationship.
11. The obligation does not apply to documents and knowledge which are generally known or which were already known to the contracting party at the time of receipt without the contracting party being obliged to maintain secrecy, or which are subsequently transferred by a third party authorised to disclose them, or which are developed by the receiving contracting party without exploiting documents or knowledge of the other contracting party which are to be kept secret.
Drawings and descriptions
12. If one contracting party provides the other with drawings or technical documents concerning the goods to be delivered or their manufacture, these remain the property of the present contracting party.
Samples and means of production
13. The manufacturing costs for samples and means of production (tools, moulds, templates, etc.) shall be invoiced separately from the goods to be delivered, unless otherwise agreed. This shall also apply to manufacturing equipment that has to be replaced due to wear and tear.
14. The costs of maintenance and proper storage as well as the risk of damage to or destruction of production equipment that needs to be replaced as a result of wear and tear.
15. If the partner suspends or terminates the cooperation during the production period of the samples or means of production, all production costs incurred up to that time shall be borne by the partner.
16. The means of production shall remain in our possession, even if the partner has paid for them, at least until the delivery contract has been settled. Thereafter, the partner shall be entitled to demand the surrender of the means of production if an amicable agreement has been reached on the time of surrender and the partner has met its contractual obligations in full.
17. We shall store the means of production free of charge for three years after the last delivery to our partner. Thereafter, we shall request our partner in writing to comment on the further use within 6 weeks; our obligation to store shall end if no comment is made within these 6 weeks or no new order is placed.
18. Customer-related means of production may only be used by us for subcontracting to third parties with the prior written consent of our partner.
19. If the contractual partner accepts payment of a cost share of the manufacturing costs of a tool, this shall not establish any right to the tool. It remains our sole property.
Prices
20. Our prices are quoted in euros exclusive of VAT, packaging, freight, postage and insurance.
Terms of payment
21. All invoices are due for payment within 20 days of the invoice date, unless otherwise agreed.
22. If we have indisputably delivered partially defective goods, the contracting party shall nevertheless be obliged to make payment for the defect-free portion unless it cannot use the partial delivery. Apart from that, the contractual partner may only offset with counterclaims that have been legally established or are undisputed.
23. In the event of default in payment, we shall be entitled to charge interest on arrears at the rate charged to us by the bank for current account overdrafts, but at least 8 percentage points above the respective base interest rate.
24. In the event of default in payment, we are entitled, after written notification to the contractual partner, to suspend the fulfilment of our obligations until receipt of the payments.
25. If, after the conclusion of the contract, we receive information that calls into question the solvency of the contractual partner, we may withhold delivery until payment has been effected. In this case, we shall be entitled to set the partner a reasonable period of time in which it must pay concurrently against delivery or provide security. If the deadline expires unsuccessfully, we shall be entitled to withdraw from the contract and to claim damages.
Delivery
26. Unless otherwise agreed, we deliver ex works. Decisive for compliance with the delivery date is the notification by us of readiness for dispatch or collection.
27. Any delivery period shall commence with the dispatch of our order confirmation and shall be extended appropriately if the conditions of Clause 56 are met.
28. Partial deliveries are permissible to a reasonable extent. They shall be invoiced separately.
29. Within a tolerance of 10 percent of the total order quantity, production-related excess or short deliveries are permissible. The total price shall change in accordance with their scope.
Shipping and transfer of risk
30. Goods notified as ready for dispatch must be taken over by the contractual partner without delay. Otherwise, we shall be entitled to dispatch them at our own discretion or to store them at the expense and risk of the partner.
31. In the absence of a special agreement, we shall choose the means and route of transport.
32. The risk shall pass to the partner when the goods are handed over to the railway, the forwarder or the carrier or when storage begins, but at the latest when the goods leave the factory, even if we have undertaken delivery.
Delay in delivery
33. If we can foresee that the goods cannot be delivered within the delivery period, we shall inform the partner of this immediately and in writing, inform him of the reasons for this and, if possible, state the expected delivery date.
34. If delivery is delayed due to a circumstance listed in Clause 56 or due to an act or omission on the part of the partner, an extension of the delivery period appropriate to the circumstances shall be granted.
35. The partner is only entitled to withdraw from the contract if we are responsible for the non-observance of the delivery date and he has unsuccessfully set us a reasonable period of grace.
Retention of title
36. We retain title to the delivered goods until all claims arising from the business relationship with the partner have been settled.
37. The partner is entitled to use these goods in the ordinary course of business with us in due time. However, he may neither pledge the reserved goods nor assign them as security. He is obliged to secure our rights in the credited resale of the reserved goods.
38. In the event of breaches of duty by the partner, in particular in the event of default in payment, we shall be entitled to withdraw from the contract after the unsuccessful expiry of a reasonable deadline set for the partner to perform; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. In this case, the partner is obliged to return the goods delivered by us.
We are entitled to withdraw from the contract if an application is made to open insolvency proceedings against the partner's assets.
39. The partner hereby assigns to us by way of security all claims and rights arising from the sale or any leasing of goods to which we are entitled and which may have been granted to the partner. We hereby accept the assignment.
40. Any processing or treatment of the reserved goods shall always be carried out by the partner on our behalf. If the reserved goods are processed or inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the other processed or mixed items at the time of processing or mixing.
If our goods are combined or inseparably mixed with other movable objects to form a uniform object and if the other object is to be regarded as the main object, the partner shall transfer co-ownership to us on a pro rata basis insofar as the main object belongs to him. The partner shall keep the ownership or co-ownership for us. In all other respects, the same shall apply to the item created by processing, combining or mixing as to the goods subject to retention of title.
41. The partner must inform us immediately of any enforcement measures by third parties against the goods subject to retention of title, against the claims assigned to us or against other securities, handing over the documents necessary for an intervention. This also applies to impairments of any other kind.
42. If the value of the existing securities exceeds the secured claims by more than 20 per cent in total, we shall be obliged to release securities of our choice to this extent at the partner's request.
Material defects
43. The quality of the goods is exclusively based on the agreed technical delivery specifications. If we have to deliver according to drawings, specifications, samples of our partner, the latter shall assume the risk of suitability for the intended purpose. The decisive factor for the contractual condition of the goods is the time of the transfer of risk in accordance with clause 32.
44. We shall not be liable for material defects caused by unsuitable or improper use, faulty assembly or commissioning by the partner or third parties, normal wear and tear, faulty or negligent handling, nor for the consequences of improper modifications or repair work carried out by the partner or third parties without our consent. The same applies to defects which only insignificantly reduce the value or suitability of the goods.
45. Claims for material defects shall become statute-barred after 12 months. This shall not apply if longer periods are prescribed by law, in particular for defects in a building and for goods which have been used for a building in accordance with their customary use and have caused its defectiveness.
46. The delivered goods are to be inspected by the contractual partner for any faults and defects. Any faults and defects must be reported to us within three days of delivery at the latest. If this is not done, the notification of defects is excluded which the partner could have detected during careful acceptance or initial sample inspection.
47. We shall be given the opportunity to inspect the defect complained of. Goods which are the subject of a complaint must be returned to us immediately on request; we shall bear the transport costs if the complaint is justified. If the partner does not comply with these obligations or makes changes to the goods already complained about without our consent, he shall lose any claims for material defects.
48. In the event of a justified notification of defects in due time, we shall, at our discretion, either repair the defective goods or deliver a faultless replacement. 49.
If we do not fulfil these obligations or do not fulfil them in accordance with the contract within a reasonable period of time, the contractual partner shall be entitled to the statutory rights.
50. In the event of a justified complaint within the time limit, we shall, at our discretion, repair the defective goods or deliver a faultless replacement. 49.
If we do not fulfil these obligations or do not fulfil them in accordance with the contract within a reasonable period, the contractual partner shall be entitled to the statutory rights.
Other claims, liability
51. Unless otherwise stated below, other and further claims of the partner against us are excluded. This applies in particular to claims for damages due to breach of obligations arising from the contractual obligation and from tort. We shall therefore not be liable for damage which has not occurred to the delivered goods themselves. In particular, we shall not be liable for loss of profit or other financial losses of the partner.
52. The above limitations of liability shall not apply in the event of intent, gross negligence on the part of our legal representatives or executive employees or culpable breach of material contractual obligations. In the event of culpable breach of material contractual obligations, we shall be liable - except in cases of intent or gross negligence on the part of our legal representatives or executive employees - only for reasonably foreseeable damage typical for the contract.
53. Furthermore, the limitation of liability shall not apply in cases in which liability is assumed under the Product Liability Act for personal injury or property damage to privately used objects in the event of defects in the delivered goods.
54. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, legal representatives and vicarious agents.
55. The statutory regulations on the burden of proof remain unaffected by this.
Force majeure
56. Force majeure, industrial disputes, riots, official measures, failure of our suppliers to deliver and other unforeseeable, unavoidable and serious events shall release the contractual partners from their performance obligations for the duration of the disruption and to the extent of its effect. This shall also apply if these events occur at a time when the affected contractual partner is in default, unless it has caused the default intentionally or through gross negligence. The contractual partners are obliged to provide the necessary information without delay within the bounds of what is reasonable and to adapt their obligations to the changed circumstances in good faith.
Place of performance, place of jurisdiction and applicable law
57. Unless otherwise stated in the order confirmation, the place of performance and jurisdiction is 59469 Ense.
58. The contractual relationship shall be governed exclusively by the law of the Federal Republic of Germany.
The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG-"Vienna Sales Convention") is excluded.