General terms and conditions.
Terms and Conditions.
General terms and conditions of sale and delivery to companies
ERNST KLIMMER GMBH / BURGAU
- 1 Scope
(1) All deliveries, services and offers of ERNST KLIMMER GMBH, Ostpreußenstraße 8, D-89331 Burgau (hereinafter referred to as: “the Vendor”) are based exclusively on these General Terms and Conditions of Trading (hereinafter referred to as: T&Cs). These form an integral part of all agreements made by the Vendor with its contract partners (hereinafter also referred to as “Client” or “Purchaser”) concerning the goods or services offered by the Vendor. They also apply to all future goods, services or offers made to the Client, even if these have not been agreed separately. (2) Any of the Client’s General Terms and Conditions or other provisions of the Client that deviate from the terms of these T&Cs are not recognised by the Vendor.
- 2 Offer and conclusion of the contract
(1) All offers made by the Vendor are without engagement and non-binding, unless they are explicitly identified as binding or contain a specified period of acceptance. The Vendor can accept orders or commissions within 5 working days after receipt.
(2) The legal relationship between Vendor and Purchaser is solely governed by the purchase contract agreed in writing, including these T&Cs. This contract reproduces all the agreements made between the parties to the contract in full. Supplements and amendments to the agreements made, including these Terms and Conditions, must be in writing to be effective. Transfer by fax or email is sufficient to keep to the requirement of the written form.
(3) Information from the Vendor on the object of the delivery or service (e. g. weights, dimensions, utility values, capacity, tolerances and technical data) as well as our representations of the same (e. g. drawings and images) are only approximate definitions, unless usability for the purpose intended in the contract requires an exact agreement. They are also, just as the information on the quantities of the parts supplied, not guaranteed characteristics, but descriptions or identifiers of the goods or services and to be understood as approximate information (see § 4 para. 4). Customary commercial deviations and deviations resulting from legal provisions or constituting technical improvements, as well as the replacement of components with parts of equal value, are permitted insofar as they do not impair the usability for the purpose intended in the contract. (4) The Vendor retains the rights to corporal and intellectual property, invention rights and copyright to all the offers and cost quotations made by the Vendor plus the drawings, images, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Client. Without the explicit agreement of the Vendor, the Client may not make these objects accessible to third parties, either as such or as regards their content, disclose them, make use of them itself or have them used by third parties or reproduce them. On demand by the Vendor, the Client must return these items to the Vendor in full and destroy any copies made, if the Client no longer requires these for regular business activities or if negotiations do not lead to the conclusion of a contract. Any expertise gained working together with the customer will in all cases remain the intellectual property of the Vendor.
- 3 Prices and conditions of payment
(1) The prices apply to the scope of goods and services listed in the confirmations of the orders. Additional or special services will be charged for separately according to agreement. The prices are in EURO ex works plus statutory VAT, customs dues for export deliveries plus fees and other public charges.
(2) Standard packaging for the goods supplied is included in the purchase price. Special packaging, in particular according to specific requests by the Purchaser, is to be agreed separately and unless otherwise agreed will be added to the purchase price.
(3) Invoices for deliveries are payable as follows:
– Tool costs: 10 days after date of invoice without deduction
– Series parts: 30 days after date of invoice without deduction.
The definitive date for payment is the date of receipt by the Vendor. Cheques only count as payment after they have been cashed. If the Client does not pay by the due date, the amounts outstanding will attract interest at the rate of 5% p. a. from the due date; the option of applying higher interest rates and further damages in the event of default shall remain unaffected. Payments must be made free of postage and charges. (4) The minimum order value shall be € 250.00. For orders under this amount, the Vendor reserves the right either to defer these until the minimum order value is reached or to charge a processing fee of up to € 50.00.
(5) The Client is only entitled to offset if its counterclaims have been legally established or are recognised by the Vendor. In addition, the Client is only entitled to exercise its right to withhold payment insofar as its counterclaim is based on the same contractual relationship.
(6) The Vendor is entitled to carry out or provide deliveries or services still outstanding only against payment in advance or the provision of security if, after the contract has been concluded, it becomes aware of circumstances likely to reduce the credit-worthiness of the Client considerably and which endanger the payment of the Vendor’s outstanding receivables arising from the relevant contractual relationship (including from other individual contracts, to which the same general agreement applies). These circumstances include in particular defaulting by the Purchaser on payment obligations due to the Vendor.
- 4 Place of performance, shipping, packaging and insurance
(1) Unless otherwise agreed, delivery is in principle from the Vendor’s works. The place of performance for all duties arising from the contractual relationship shall be Burgau, unless otherwise agreed. (2) The type of shipping and the packaging are subject to the professional discretion of the Vendor.
(3) The Vendor is entitled to make part deliveries if
– the part delivery can be used by the Client within the limits of the intended purpose of the contract,
– the delivery of the remaining ordered goods is assured and
– this does not subject the Client to any substantial extra expenditure or additional costs (unless the Vendor declares itself willing to take on these costs).
(4) With specially manufactured goods, it may occur that for technical production reasons the goods exceed or fall short of the quantity ordered by up to 10 % (see § 2 para. 3).
- 5 Delivery period and delays in delivery
(1) The particular delivery period to be agreed begins with the conclusion of the contract, but not before the complete provision of the documents, approvals and releases to be obtained by the Client, and also not before the receipt of any down payment that may have been agreed. The start of any agreed period of delivery requires the prior clarification of all technical questions between the contract parties. Delivery dates to be met precisely require sufficient periods of notice and quantities in the scheduling by the contract partners, which it must be possible for the Vendor to organise. A corresponding objection by the Vendor will revoke the duty to deliver and oblige both parties to agree a reliable arrangement. (2) Periods and deadlines for deliveries and services proposed by the Vendor only apply approximately, unless a fixed period or a firm deadline has been explicitly confirmed or agreed. Insofar as shipping has been agreed, the delivery periods and delivery dates refer to the time of transfer to the carrier, freight forwarder or other third party commissioned to carry out the transport. (3) Irrespective of its rights arising from the Client’s defaulting, the Vendor can demand an extension of delivery or service periods or a postponement of delivery and service deadlines by the length of time during which the Client does not meet its contractual obligations to the Vendor. (4) The delivery period is met if the object of the delivery has left the Vendor’s works before the period expires or the Vendor has informed the Purchaser that the item is ready to dispatch. (5) The Vendor will not be liable for the impossibility of delivery or for delays in delivery insofar as these are caused by a higher power or by events not foreseeable at the time the contract was concluded (e. g. all kinds of disruption of operations, difficulties in obtaining materials or energy, transport delays, strikes, legal lockouts, insufficient workforce, energy or raw materials, difficulties in obtaining the necessary official approvals, official measures or missing, incorrect or untimely delivery by suppliers) and are not the responsibility of the Vendor. Insofar as these events make the delivery or service considerably more difficult or impossible for the Vendor and the obstacle is not merely of a temporary nature, the Vendor is entitled to withdraw from the contract. For obstacles of a temporary duration, the delivery or service periods shall be extended or the delivery or service deadlines postponed by the length of time the obstacle persists plus a reasonable start-up period. If due to the delay acceptance of the delivery or service should be unreasonable for the Client, the Client may withdraw from the contract by means of an immediate declaration in writing to the Vendor.
(6) If the Vendor’s deliveries or services are delayed, the Client must first set a suitable follow-on period for the delivery and wait for this to pass unsuccessfully before claiming further rights.
(7) If a delivery or a service of the Vendor is delayed or one of its deliveries or services becomes impossible for whatever reason, the Vendor’s liability for compensation is limited to the measures set out in § 10 of these General Terms and Conditions.
- 6 Transfer of risk, receipt and default of acceptance
(1) At the latest, the risk will be transferred to the Client with the handing over of the object of the delivery (where the start of the loading procedure is the defining point) to the carrier, freight forwarder or other third party commissioned to carry out the shipping. If shipping or the handover is delayed due to circumstances for which the Client is responsible, the risk will be transferred to the Client beginning with the expiry of the day on which the Vendor is ready to dispatch and has indicated this to the Client, at the latest with the transfer of the object of delivery.
(2) Goods that have been notified as being ready to ship on an agreed date must be called for immediately; otherwise, the Vendor is entitled to store these at the cost and risk of the Purchaser and charge for them as delivered. If stored by the Vendor, the warehousing costs amount to 0.25% of the invoiced amount of the goods to be stored per completed week. The right is retained to claim further or lower warehousing costs.
(3) Items delivered are to be accepted by the Purchaser even if they display minor defects, irrespective of any possible liability of the Vendor for defects.
(4) Deliveries ready to be called for must be accepted within two months after confirmation of order.
- 7 Reservation of ownership
(1) The reservation of ownership agreed below serves to secure all relevant existing current and future claims of the Vendor against the Purchaser arising from the delivery relations between the contract partners.
(2) The goods delivered by the Vendor to the Purchaser remain the property of the Vendor until all claims have been paid in full as per § 7 (1). The reservation of ownership covers goods from every delivery relationship between the contract partners (reserved goods) until full payment of all claims due to the Vendor.
(3) The Purchaser will keep the reserved goods for the Vendor without charge.
(4) The Purchaser is entitled to process and sell the reserved goods in the course of proper business transactions until the time of recovery (Paragraph 8). Pledging or assignment as security are not permitted.
(5) In the event of resale of the reserved goods, the Purchaser as of now assigns to the Vendor by way of security the claims against the buyer arising from the sale. The same applies to other claims taking the place of the reserved goods or otherwise arising with regard to the reserved goods, such as for example insurance claims or claims arising from unauthorised acts in cases of damage, loss or destruction. The Vendor, with the right of revocation, authorises the Purchaser to collect the claims assigned to the Vendor, in the Purchaser’s own name but on behalf of the Vendor. The Vendor may only revoke this right to collect in the event of recovery (see para. 8).
(6) If third parties access the reserved goods, in particular by pledging, the Purchaser will immediately make them aware of the property of the Vendor and inform the Vendor of the above to enable it to implement its right of ownership. Insofar as the third party is not in a position to repay the Vendor the judicial and extra-judicial costs incurred in this connection, the Purchaser will be liable to the Vendor for these.
(7) The Vendor will on request release the reserved goods as well as the claims or objects taking their place according to its choice, if their value exceeds the amount of the secured claims by more than 50%.
(8) If the Vendor in the event of conduct by the Purchaser that is contrary to the contract – in particular default of payment – withdraws from the contract (recovery), the Vendor is entitled to demand the return the of reserved goods.
- 8 Duty of testing and obligations of the Purchaser in the event of defects
(1) The Purchaser must carefully inspect the goods delivered to it or to a third party it has appointed immediately after delivery and, if any defects are found, inform the Vendor immediately. The objects delivered will be considered approved if the Vendor does not receive a complaint of evident defects, or other defects that were recognisable after an immediate, careful inspection, within two working days after delivery of the objects, or otherwise within two working days after discovery of the defect or the time at which the defect was recognisable for the Client in normal use of the delivered object without closer inspection, this complaint to be in the written form stipulated in § 2 Paragraph 2, final sentence.
(2) The duties of inspection and complaint listed above cease to apply only if there is an explicit written agreement between the Vendor and the Purchaser. However, even in these cases the Purchaser is obliged to inspect the condition of the goods for recognisable defects as part of the ordinary course of business, before any assembly with other components or passing the goods on to third parties.
(3) On demand by the Vendor and at the Vendor’s choice, the delivered object that is the subject of complaint is to be
- a) either made available for collection or reworking, or for reworking by third parties
- b) or shipped back to the Vendor carriage paid; if the complaint of defects is justified, the Vendor will refund the costs of the most economic shipping method; this will not apply if the costs are increased because the object of delivery was located elsewhere than at the location of intended use.
- 9 Claims for defects
(1) Fundamental principle: The Vendor, as a supplier of metal parts, does not manufacture its own products, but produces parts according to customer drawings and specifications (in particular regarding the material). The technical manufacturing advice given by the Vendor in oral and written form is intended only to explain to the Client the most economical use of the manufactured products. It does not release the Purchaser from its obligation to make sure, by means of its own tests, that the products and the material used are suitable for the Purchaser’s intended purpose. The Vendor will therefore not accept any liability for the function of the object of the contract. It will guarantee only the delivery of its product according to the customer drawing (or tested and approved proposed design). Furthermore, the guarantee against defects and the liability for damages are excluded if these defects are due to the Client’s own actions, e.g. the selection of the material, the installation of the products in items of the Client’s own manufacture or made by third parties, or because of non-compliance with the operating instructions. Claims for defects must be in writing (see § 2 para. 2, final sentence).
(2) If a separate ppm (parts per million) agreement has been concluded between contractor and client, those provisions apply as a supplement to the conditions of supply and payment and in case of doubt take precedence over them.
(3) In the case of material defects of the objects delivered, the Vendor is, according to its choice to be taken within a reasonable period, initially entitled and obliged to provide re-working or a replacement delivery. A reasonable extension period is considered to be one that, if the Vendor has chosen replacement delivery, takes into account the time required for any necessary re-ordering of materials from the Vendor’s suppliers and the time for manufacturing new products.
If the Vendor seriously and definitively refuses supplementary performance, refuses supplementary performance due to excessive costs, the supplementary performance fails or is unreasonable for the Client, the Client can only, according to its choice, demand a decrease in price (reduction) or cancellation of the contract (withdrawal) and compensation within the framework of the limits of liability (see § 10) in place of the service. Failure of rectification (removal of defects) shall only be the case if rectification has failed on two occasions. However, if there is is only a minor contravention of the contract, in particular in the event of only minor defects, the Client is not entitled to withdraw from the contract. If the violation of the contract contained in a defect is not the Vendor’s responsibility, the Client is not entitled to withdraw from the contract.
(4) If the defect is the fault of the Vendor, the Client can demand compensation as per the conditions determined in § 10.
(5) In the case of defective components from other manufacturers that the Vendor cannot remove for licensing or actual reasons, and also in the event of defects in the materials from the Vendor’s suppliers, the Vendor will be able to choose between making warranty claims against the manufacturer or supplier on the Client’s account or ceding these claims to the Client. With this kind of defect, warranty claims against the Vendor exist under legal provisions and according to the provision of these T&Cs only if judicial enforcement of the above mentioned claims against the manufacturer or the supplier has proved unsuccessful or has no prospect of success, for instance due to insolvency. During the period of legal dispute the temporal limitation with regard to the relevant claims for defects by the Client against the Vendor shall be suspended.
(6) The liability for defects shall be void if the Client changes the object of delivery or has it changed by third parties without the agreement of the Vendor and rectifying the defect thus becomes impossible or is made unreasonably more difficult. In every case, the Client will be responsible for the additional costs for rectifying the defect.
(7) If the Client sells its product to a third party and if that third party makes claims for defects against the Client that could also affect the Vendor’s object of delivery, the Client is to inform the Vendor of this immediately. Here too the Vendor is entitled and obliged to either rectify the defect or supply a replacement if the defect on the Vendor’s object of delivery already existed at the time of transfer of risk to the Client. The Client can only claim make a claim against the Vendor based on the right in § 445a para.1 BGB (German Civil Code) if the Vendor seriously and definitively refuses supplementary performance, refuses supplementary performance due to excessive costs, the supplementary performance fails or is unreasonable for the Client.
- 10 Liability and compensation due to fault
(1) Attention is drawn to the limitation of warranty and liability according to § 9. The Vendor is in addition not liable for damage resulting from other components combined or processed with the object of delivery. The Vendor’s liability for compensation, on whatever legal grounds, in particular impossibility, delay, defective or wrong delivery, violation of the contract, violation of duties in contractual negotiations and unauthorised action, is insofar as it is based on fault in the relevant case limited according to the provision of this § 10.
(2) The Vendor is in principle liable only for the Client’s damages: a) which the Vendor or its lawful representatives or auxiliaries have brought about intentionally or through gross negligence: this applies particularly to default in delivery, b) that is founded on fatality, physical injury or damage to health caused by violation of an obligation by the Vendor or one of its lawful representatives or auxiliaries or c) that has arisen due to the violation of an obligation that, if properly met, would have been essential for enabling the performance of the contract in the first place and on the compliance with which the Client regularly relies and can rely (cardinal obligation).
(3) In the cases of § 10 (2) a) and b), the Vendor is liable and the amount is unlimited. In other cases, the amount of compensation will be limited in accordance with the following provisions to foreseeable damage typical for a contract. Liability will be limited to damage that the Vendor has, at the time of conclusion of the contract, foreseen as a possible consequence of a violation of the contract or should have foreseen, taking into account circumstances of which the Vendor was aware or should have been aware, if it had employed due care and attention. In addition, indirect damage and consequential damage that arises as a consequence of defects in the object of delivery is only liable for compensation if such damage can be typically expected when using the object of delivery as intended. If the installation of a defective individual component supplied by the Vendor should lead to the Client’s entire (intermediate or end) product becoming defective, the liability of the Vendor is moreover limited in value to compensation for the damage to its own object of delivery, unless the Purchaser proves that despite its own continuous quality control from monitoring of the goods inwards (above, § 8) to inspection of the individual components before assembly, the defect of the component delivered by the Vendor was not and could not have been discovered.
In the event of liability for ordinary negligence the Vendor’s duty of compensation for material damage is limited to an amount of EUR 5,000,000.00 per incidence of damage, unless it involves violation of essential contractual obligations. The Vendor draws the Purchaser’s attention to its remaining risks of damage and recommends taking out an insurance policy.
(4) In all other cases except those mentioned in § 10 (2) the Vendor’s liability – irrespective of the legal basis – is excluded. In particular, the Vendor will not be liable for damage arising for the Client based on the conclusion of a contract with a third party, as the Client’s relevant contract partner is the only party in question here.
(5) The above exclusions and limitations of liability apply to the same extent in favour of the bodies, lawful representatives, employees and other auxiliaries of the Vendor (insofar as personal liability exists).
(6) To the extent that the Vendor provides technical information or acts in an advisory capacity and this information or advice does not form part of the contractually agreed scope of services the Vendor owes, this is carried out without remuneration and excluding any liability.
(7) The limitations of this § 10 do not apply to the Vendor’s liability for intentional conduct, for guaranteed qualities, to cases of fatality, physical injury or damage to health or cases that come under the German Product Liability Act.
- 11 Obligation to avert and minimise damage, contributory negligence
(1) In all phases of the contract execution, the Purchaser is obliged when claiming for material defects or other disruptions to service such as default etc., which it sees as having their causes in the services provided by the Vendor, to try and minimise the costs for the rectification and other development of the disruption.
(2) If when damage is caused the negligence of the Purchaser has contributed, the duty to provide compensation as well as the amount of compensation to be paid depends on the circumstances, in particular on the extent to which the damage has been predominantly caused by the one or the other party. This also applies if the contributory negligence of the Purchaser is limited to the fact that it has omitted to draw the Vendor’s attention to the risk of unusually serious damage of which the Vendor was neither aware nor had to be aware, or that the Purchaser has omitted to avert or to minimise the damage.
(3) This does not affect the liability provisions of § 10 of these T&Cs. Attention is drawn to Provision § 254 of the BGB (German Civil Code).
- 12 Temporal limitation
(1) All claims by the Client – on whatever legal grounds – fall under temporal limitation after two years. § 445b para.2 BGB (German Civil Code) remains unaffected.
(2) The legal periods set according to § 10 Paragraph 7 apply to claims for compensation. They also apply to defects in a structure or for objects of delivery that according to their customary use were used in a structure and caused it to be defective.
(3) Where claims regarding the defective nature of the Vendor’s objects of delivery are concerned, the period of limitation begins with the delivery or, insofar as acceptance is required, with acceptance.
- 13 Communication
The parties intend to document their communication as comprehensively as possible. The Vendor is to create promptly minutes of discussions / consultations with short summaries and send these to the Client via email. The Vendor may provide these minutes in the form of bullet points, scanned-in notes or audio recordings. Detailed minutes need only be drawn up if explicitly commissioned and for a separate fee. The Client will also communicate decisions by email as far as possible. Decisions by the Client declared orally (including by telephone) will be confirmed by the Vendor by email. To ensure rapid work by the Vendor, the Client undertakes to retrieve its emails daily (working days only) and to reply within 24 hours, at least with a time schedule the Client has set itself to process the questions that have arisen. The Client also undertakes to reply to reply to read confirmations or acknowledgements of receipt requested by the Vendor by email within 24 hours. Attention is drawn to §§ 14 and 15.
- 14 Vendor’s right to refuse performance
The Vendor is entitled to refuse taking up or continuing its activities if in accordance with § 3 (6) it has requested an advance payment / payment on account or the provision of a security, sent a part invoice after a partial acceptance, or a reply or read confirmation / acknowledgement of receipt according to § 13 is outstanding from the Client, until the Client’s relevant service has been performed in full.
- 15 Liability of the Client and contract fines
(1) The Client is obliged to compensate the Vendor according to legal provisions if it violates contractual duties. This applies in particular to
- a) the infringement of copyright, patent, utility model or other rights covering the field of the Vendor’s intellectual property or industrial property rights, and likewise the infringement of agreed business secrets,
- b) the making of false statements for the purpose of reducing or disputing the Vendor’s remuneration as agreed according to this contract. This prohibition also applies to representatives or auxiliaries such as for example the Client’s solicitors.
(2) On infringement of the prohibition named in (1) a), the Client undertakes to pay a contract fine of 20% of the net fee calculated for the works and for infringement of the prohibition named in (1) b) a contract fine of 50% of the reduction or disputed amount of the Vendor’s fee intended by making false statements, for each occasion of contravention. The contract fines apply irrespective of the Vendor’s claim to compensation.
(3) A false statement occurs if the facts are shown to be different by the documented communication (see § 13) or other forms of evidence. Otherwise, a false statement of the facts also exists at the latest at the point when judicial proceedings legally determine that the statement of the Client or its representatives / auxiliaries (such as for example solicitors) is untrue. The Vendor explicitly reserves the right to bring charges.
- 16 Final provisions
(1) The place of jurisdiction for any disputes that may arise from the business relations of the Vendor with the Client shall be Günzburg or the headquarters of the Client, according to the Vendor’s choice. Günzburg shall be the sole place of jurisdiction for complaints against the Vendor. Mandatory legal provisions regarding sole places of jurisdiction remain unaffected by this condition. (2) The relations between the Vendor and the Client are solely subject to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods dated 11th April 1980 (CISG) does not apply. (3) If individual provisions of these T&Cs should be or become wholly or partially invalid or inapplicable, or if there should be a gap in the T&Cs, this shall not affect the validity of the other provisions. Instead of the invalid or inapplicable provision, or to fill the gap, a suitable condition shall be put in place which, insofar as is legally possible, comes closest to the intentions of the parties or what would have been their intentions according to the meaning and purpose of these T&Cs had they considered the point.