1.1
These General Terms and Conditions of Business or "General Terms and Conditions
of Sale and
Supply" (or "General Terms", for short) shall apply to all business
transactions
between the Customer or other customers (hereinafter collectively called
"the Customer")
even if they are not mentioned in later contracts. They shall in particular
even apply if the Customer
draws attention to his own terms of business when placing
his order or in any other way. Contractual
provisions with any differing content shall have
no application. Nothing different from these General
Terms shall apply unless supplier
has expressly consented to these differing terms of business.
1.2
The Customer shall be deemed to have accepted these General Terms as soon as he
physically takes
receipt of our goods and/or services unless the he rejects them within
48 hours of receiving our
goods and/or services. It he does reject them he shall return
the goods and/or services to supplier
immediately. If the goods and/or services have
not been returned for any reason whatsoever within
48 hours has stated his refusal to
accept the General Terms he shall become liable towards supplier
for a contractual
penalty corresponding to the value of the goods and/or services he has received.
2. Offers
2.1
Unless our offers are accepted without delay, all offers and price information shall be
deemed
to be free and nonbinding unless and until a valid contract has come into
existence, except
when a period of binding force has been expressly stated. No orders
or oral agreements shall
have any valid binding effect on supplier unless and to the
extent that we confirm them in writing.
Cost estimates shall always be without binding
effect.
2.2
The documentation relating to an offer such as drawings and illustrations, and data
contained in
the offer such as measurements, weights, or performance, shall be
regarded as only approximate
unless expressly described as "binding".
3. Orders
3.1
Our written confirmation of order shall be exclusively binding as to the scope
of the
goods and/or services to be supplied. No objections to the contents of
the confirmation
of order shall be accepted unless we receive them in writing
and without delay, and
within 7 working days at the latest after the date on
which it was issued. Later changes
can only be taken into account if expressly
agreed in writing. Apart from this, the
provisions of subclause 1.2 above shall
apply in all relevant respects.
3.2
supplier shall reserve the right to check the customer's creditworthiness even
after the
order has been confirmed, through a creditinsurance company if
relevant, and to cancel
the contract totally if the findings are unfavourable,
meaning in particular if the credit
insurers refuse to provide cover.
3.3
No oral declarations, meaning in particular any made by our sales agents or travelling
salesmen,
shall become legally valid unless and until confirmed in writing by supplier.
3.4
If the customer after having awarded a contract then cancels it without justification,
supplier
can charge 25 percent of the purchase price for the costs incurred in
processing the order and
for forgone profit, and without prejudice to any claim for
compensation for any greater loss. The
customer shall be entitled to demonstrate that
a lesser loss has been incurred.
3.5
The customer shall call off the last of any call-off orders no later than 6 months after
the
date
of the confirmation of order. supplier shall then set a reasonable extension period,
and if, once
it has expired, the order has not been finally called off with all the necessary detailed information
we shall be entitled at our free discretion either to
deliver the
remaining quantity even without
any call-off at the price in force on the day
of said
delivery, or to claim damages in lieu of
the contractual obligation, or to cancel
the
contract in respect of the remaining quantity.
4. Copyright
If supplier produces to the customer's
order, using drawings, models, patterns, or any
other technical documentation provided by him,
the customer shall be deemed to have
guaranteed that no third party's industrial property rights
will be violated thereby. Should
any third party invoke any existing industrial property rights
and forbid supplier from
producing and delivering such goods or supplying such services, we shall
be entitled,
without being under any obligation to examine the legal situation, to cease all further
activity
to the relevant extent and to demand damages from the customer. By providing
any such drawings
and/or other documentation the customer holds supplier safe and
harmless at its first request
from any claims that any third party may raise in this connection.
5. Working Aids
5.1
If data are despatched by remote data transmission or eMail or on any kind of data
carrier, the
customer shall bear liability for any data errors caused by a faulty connection.
The customer
hereby guarantees that no data shall be transmitted or sent on a data
carrier unless it has been
checked and is free of viruses. Any working aids provided by
the customer such as data carriers,
finished drawings / artwork, or original litho films
shall therefore require no examination or
approval from supplier. If any rework is
reported to be necessary, the customer shall give his
agreement to supplier carrying
out and charging for the work.
5.2
Tools, data carriers, litho films and plates, jigs, printing equipment, drilling and
machining
programmes, etc. shall only be charged on the basis of a share of the
costs and shall remain the
exclusive property of supplier. They shall be retained
and maintained for a period of one year
from the date of last use. supplier shall be
free to sell them. We shall retain the reproduction
rights over any designs that we produce.
5.3
Proofs, quality samples, or working models shall be submitted for approval if we
consider this
necessary. No changes, acceptance, or approval shall be valid unless
we are given them in writing.
Any acceptance or approval of proofs, drawings, or
samples given by the customer or any party acting
with his authority shall absolve
supplier from any liability for defects that they may later contain
or cause unless
supplier has acted with intent or in gross negligence.
5.4
supplier shall bear no liability for defects caused by the order itself, by any
documentation
it has been sent, or by any data contained therein, being incomplete
or capable of more than one
interpretation. The foregoing shall not apply if supplier
has acted with intent or in gross negligence.
6. Data on state of finish
6.1
supplier shall not be deemed to have given any data on the finished state of any
product unless
it has been expressly described in writing as "Specific contractual
conditions" and
identified as such. We shall not be held liable for any agreements
made by any of our representatives
or vicarious agents unless the customer has
expressly informed us of them and we have confirmed
them.
6.2
It shall be deemed to have been agreed that the state in which the goods are delivered
shall be
exclusively our product description.
6.3
Public announcements, advertising copy, and other forms of advertising, on the other
hand, do not
represent any contractual data on the state of the product.
7. Delivery quantity
supplier shall use its best endeavours
to deliver the agreed quantity in conformity with
the contract. Partconsignments shall be permissible.
However, the customer shall be
under an obligation to accept any variation up to 10 percent in
the agreed quantity or
production batch caused by production factors. supplier shall not thereby
be held in
violation of any contractual obligation of any kind. The claim to payment arising from
the
quantity actually supplied shall be increased or decreased accordingly. If a sequence of
consignments
is delivered, each call-off shall be made from the ordered quantity as
effective delivered quantities.
If any quantity is called off in excess of the quantity
originally ordered, we shall be entitled
to request the creation of a new contract or to
charge for the excess quantity at the price in
force on the relevant day.
8. Delivery periods
8.1
Delivery dates and periods published by supplier shall be regarded as approximate
and as nonbinding
information for the customer unless we have promised the delivery
date or period in writing and
designated it as "fixed". Any such "fixed" delivery date or
period shall
be subject to our being supplied punctually and correctly with the necessary
materials. supplier
shall not accept any obligation for ensuring punctual transportation.
8.2
Delivery periods shall count from the date on which the order confirmation is
despatched but shall
not start to run until all details have been clarified on the order
and any documentation, licences,
approval, material, or other items to be supplied by
the customer have been received, nor until
any agreed instalment payment has been
made or any Letter of Credit has been opened in supplier's
favour.
8.3
The delivery date shall be deemed to have been met if the goods to be delivered have
left
the works by that date or the customer has been informed that they are ready for
collection.
Our delivery period shall be in abeyance and shall be prolonged by at least
the length of
time for which the customer is in arrears of fulfilment of his counter
performance and under
certain circumstances by a multiple of this length of time if as
a result of the delay machinery
has been deployed on other orders and it is not possible
to bring the interruption caused
by the customer to an immediate end. The delivery
period shall also be prolonged if unforeseen
obstacles arise, meaning in particular any
Act of God or force majeure or occurrences outside
our control such as interruptions to
operations, faulty or shortfall production, strikes,
or lockouts, regardless of whether
these affect us or our suppliers, if these circumstances
can be demonstrated to have
a direct and significant impact on the production or delivery
of the goods or services we
are to supply. No rights or claims shall accrue to the customer
as a result of any such
circumstances. The circumstances described above shall also be deemed
to be
outside our control if they arise after a delay has already started to occur. In important
instances we will inform the customer as soon as possible about the start and end of
any such
circumstances:
8.4
We shall be permitted to deliver partconsignments within the delivery period that we
have stated
provided this does not result in any disadvantage to the use of the products.
8.5
Our adherence to delivery dates shall be conditional upon the customer properly and
punctually
fulfilling his contractual obligations, meaning his payment obligations in
particular.
8.6
In the event of any unforeseen events, if they are of commercial significance, seriously
changing
the substance of the goods and/or services to be supplied, or seriously affect
our operations or
those of any of our suppliers, and in the event of factors emerging later
that make it objectively
impossible to execute the contract, we shall be entitled to cancel
such parts of the contract as
we are unable to fulfil. If we make use of this right we shall
inform the customer accordingly
and without delay as soon as we become aware of the
implications of the relevant event, even if
an extension of the delivery date has already
been agreed with the customer. No rights or claims
for compensation shall accrue to
the customer as a result of any cancellation of this kind.
8.7
If goods are ordered on call-off, the entire quantity ordered shall be called off within the
agreed
delivery period. If not, we shall be entitled to despatch and charge for the
remaining quantity,
in the form of semifinished goods and/or special material if
necessary. If a special price has
been granted to the customer on account of the total
contractual quantity, including contracts
for successive deliveries, but the entire agreed
quantity is not called off or accepted within
the agreed call-off period, supplier shall
reserve the right to impose a price increase appropriate
to the reduced quantity. If an
extension period is granted in respect of the residual quantity,
the possibility shall exist
of agreeing a new price. If the residual quantity is not called off
at all, we shall reserve all
our rights.
9. Price
In the absence of any specific agreement
to the contrary, all prices shall be defined as
exworks, expremises, or exwarehouse, or in specific
cases exdespatch from some
other external point within the Federal Republic of Germany, but shall
always exclude
packing and other costs. Value Added Tax shall always be added at the statutorily
prescribed
rate to the prices we state. If goods and/or services are supplied more than
four months after
the contract comes into existence, supplier shall reserve the right to
invoice an appropriate
overheads surcharge to cover any increases in wage rates or the
prices of materials and/or energy
that may have occurred in the interim. This shall apply
in particular to contracts for successive
deliveries.
10. Payment
10.1
In the absence of any specific agreement to the contrary, payment shall be made net of
all charges
to our point of payment.
10.2
Agreement payment terms shall count from the date of issue of the relevant invoice.
Any promptpayment
discount that may have been agreed shall only be applicable on
condition that all payment obligations
from earlier invoices have been met in full. Invoice
amounts of less than € 200 shall be due
for payment immediately, netnet and without
any deductions.
10.3
supplier shall be under no obligation to supply any further goods or services under any
current
contract so long as any earlier invoices that are due or overdue for payment have
not been settled.
10.4
All payments owed to supplier under the business relationship, meaning the entirety of
the customer's
exposure to supplier and including, for instance, claims for payment for
semifinished product
resulting from transfer of risk at the start of production, for
finished product held in trust
in our safekeeping on his behalf, and for goods delivered
but not yet paid for, shall be declared
due for immediate payment regardless of the
maturity of any bills-of-exchange or cheques that may
have been received if there is any
sound reason for us to do so such as arrears of payment, poor
credit information, or a
downgrading of the customer's credit rating by the credit insurers. The
same shall apply
if any justifiable doubts arise as to the customer's solvency or creditworthiness
or if the
customer pledges his receivable accounts or goods covered by our retention of title to
a
third party or offers the same as collateral. Under these or similar circumstances we
shall also
be entitled to require payments in advance or collateral in respect of all
current transactions.
If we still have a backlog or orders to work through for the
customer, we shall also be entitled
to cancel these orders and/or demand
compensation in lieu of performance.
11. Transfer of risk
11.1
supplier shall notify the customer when a production batch has been produced in
accordance with
a confirmed order. All risks attaching to the goods that are to be
delivered shall be transferred
to the customer when he receives this notification. The
customer shall be under an obligation
to collect the goods from supplier in accordance
with the notification of production.
11.2
We shall be entitled but under no obligation to enter into contracts for transportation on
the
customer's behalf and to select the mode and route of transport.
12. Packing
supplier shall reserve the right to decide
on the type and amount of packing. Packing
costs shall be invoiced separately. If packaging, especially
packaging containers, is
returned to supplier immediately, carriage paid, and in a faultless condition,
we will
issue a credit note for two-thirds of its invoiced value. Apart from this we reserve the
right
to refuse to take packing material back.
13. Retention of title
13.1
All goods shall remain our property until the customer has fulfilled all claims that we
have against
him under the whole business relationship. The customer shall not
pledge the goods while they
are under our retention of title nor transfer title over them
by way of collateral. In the event
of any third party attaching, confiscating, or otherwise
disposing over the goods, the customer
shall inform supplier without delay and state
the complete name and address of the creditor
who is seeking attachment
13.2
Goods under our retention of title shall not be resold except as part of the customer's
normal
business processes. The claim for payment accruing to the customer against
his customer from the
purchase price of the goods shall be deemed to have been
assigned to us up to the level of our
purchase price payment account. The customer
shall not be entitled to dispose over the retained
goods in any other way.
13.3
The customer shall be entitled until further notice (which can be given at any time) to
collect
the purchase price payment account. If the goods supplied under retention of title
are treated,
processed, or mingled or combined with other goods, or if the customer has
other rights over these
goods, supplier shall become the coowner in the same
proportion as value of the retained goods
to the other objects. If any object in the
customer's possession that is under retention of title
is to be regarded as the principal
object, the parties already agree that we shall be the owner
of the principle object as
well and that its transfer to us is superseded by the provision of this
object on loan into
the customer's possession.
13.4
In the event of arrears of payment of the whole or any part of an amount owing, the
customer's
right of ownership shall expire as well as his authorisation to collect the
receivable accounts
from his customers. If we so request, the customer shall then
inform supplier of the names and
addresses of his debtors for these assigned
accounts, provide all necessary information, and inform
the debtors of the assignment.
Otherwise supplier shall be entitled to require the immediate surrender
of the goods
held by the customer under retention of title, although this requirement of surrender
shall
merely serve to secure the title and shall not be construed as cancellation of the
contract.
13.5
The customer shall bear the risk of the accidental destruction of the goods under
retention of
title and shall be under an obligation to treat the goods that have been
delivered with all due
care and to insure them adequately for the duration of the retention
of title. Any claim on the
insurance shall be deemed to have been assigned here and
now to supplier and shall remain with
supplier until the purchase price and any
consequent ancillary costs have been paid in full.
13.6
All rights under the retention of title and all special agreements defined in these General
Terms
shall apply until obligations have been discharged in full as contingent liabilities
that we have
accepted in the customer's interests.
13.7
We shall be under an obligation to release all collateral to which we are entitled, if the
customer
so requests, as soon as its value exceeds that of the accounts receivable that
it secures by more
than 20 percent.
14. Guarantee
14.1
supplier shall provide a guarantee against defects and shall at its discretion rework or
replace
any defective goods. Should all attempts at rectification fail, the customer shall
be entitled
to require a reduction in the remuneration or the cancellation of the contract.
The customer
shall have no right to cancel the contract if only a minor violation of the
contract has occurred,
e.g. if the defects are minor,. If the customer cancels the contract
on the grounds that the
goods were defective and the defects have not been rectified, he
shall not be entitled to claim
damages on the grounds of the defect.
14.2
The customer shall inform supplier in writing of any obvious defects no later than 7
calendar
days after receiving the goods, and of any other defects within 7 days of their
coming to light,
otherwise no guarantee claims shall be entertained. The 7-day period
shall be deemed to have been
met if the notification is sent off within this time. The
customer shall bear the onus of proof
that the prerequisites for a guarantee claim have
been met, particularly with respect to the defect
itself, the point in time when the defect
was identified, and the punctual notification of the
defect.
14.3
The guarantee period shall be one year counting from the date of delivery of the goods.
14.5
In the event of any violation of the contract due to minor negligence, our liability shall be
limited
to the average damage foreseeable with goods of this kind and typical of this
kind of contract.
This shall also apply to any case of minor violation of obligations by any
of our representatives
or vicarious agents. Apart from this we shall bear no liability for
insignificant violations of
contractual duties caused by minor negligence.
15. Miscellaneous
15.1
supplier shall not accept the assignment of any of the customer's receivable accounts.
15.2
The customer shall have no rights of offset unless his counterclaim has been
established by a court.
The customer shall have no right of retention unless his
counterclaim is based on the same contractual
relationship.
15.3
Should any provision of these General Terms prove to be invalid, unworkable, or beset
by loopholes,
it shall be replaced by a provision that come as close as possible to that
which the parties desired
but is valid, workable, and complete. This shall not affect the
validity of the remainder of the
contract.
15.4
Wird das Insolvenzverfahren über das Ver-mögen eines Vertragspartners beantragt,
ist der andere Vertragspartner berechtigt für den nicht erfüllten Teil vom Vertrag
zurückzutreten.
16. Place of execution and jurisdiction
16.1
Deliveries shall be made at choice exworks Krefeld or free at haulier in Krefeld
(Germany). The
place of execution for the supply of all goods and services under the
contract, including cheques
and bills-of-exchange, shall be Düsseldorf (Germany).
16.2
The place of jurisdiction for any disputes that may arise directly or indirectly from the
contractual
relationship shall likewise be Düsseldorf. supplier shall also be entitled
to sue the customer
before the with court geographic jurisdiction over his place of
business.
17. Choice of law
17.1
German law shall apply to all legal relationships resulting for the parties and their
successors
in law from any contract governed by these General Terms including any
subordinate or ancillary
transactions, to the exclusion of the application of any legal
norms created by German legislation
on collisions of law where these refer to any other
country's legal system, the Hague Convention
on Uniform Purchasing Law, uniform UN
Purchasing Law, or any other Conventions governing the
law on the purchasing of
merchandise.
17.2
The contractual language shall be German. Any written matter composed in any other
language shall
be deemed to be a translation of the original. If any discrepancies exist
between a German text
and that in any other language, including these General Terms,
the German text shall always take
precedence as the original.
The customer hereby agrees to supplier
processing and using his personal data in the
context of or in connection with our business relationship
to the extent permitted by data-
protection legislation.
