General terms and conditions. (Issue date: 02/03/2018) General terms and conditions of sale and delivery of ERNST KLIMMER GMBH / BURGAU for transactions with companies
- 1 Validity
(1) All deliveries, services and offers of ERNST KLIMMER GMBH, Ostpreußenstraße 8, D-89331 Burgau, Germany (hereinafter referred to as the “Vendor”) are based exclusively on these general terms and conditions (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 shall also apply to all future deliveries, services or offers for the Client, even if there is no separate agreement concerning them.
(2) The Vendor shall not accept any general terms and conditions which deviate from these T&Cs or other regulations of the Client.
- 2 Quotations and conclusion of agreements
(1) All quotations submitted by the Vendor are without obligation and subject to confirmation provided they have not been explicitly marked as binding or include a specific period for acceptance. The Vendor can accept orders or commissions within 5 working days after receipt.
(2) The legal relationship between the Vendor and Purchaser is solely governed by the purchase contract agreed in writing, including these T&Cs. This contract reproduces all agreements made between the contractual parties in full. Supplements and amendments to the agreements made, including these terms and conditions, must be in writing to be effective. To comply with the written form, transmission by fax or email is sufficient.
(3) Information from the Vendor on the delivery item 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 like the information on the quantities of the parts supplied, not guaranteed characteristics, but rather descriptions or identifiers of the goods or services and are 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 issued 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 items accessible to third parties, either as such or as regards their content, or disclose them, make use of them itself or have them used by third parties or reproduce them. On request by the Vendor, the Client must return these items to the Vendor in full and destroy any copies made thereof, provided that 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 Client will in all cases remain the intellectual property of the Vendor.
- 3 Prices and payment terms
(1) The prices apply to the scope of goods and services listed in the confirmations of the orders. Additional or special services will be invoiced separately by arrangement. The prices are in EUROS ex works plus statutory VAT, customs dues for export deliveries plus fees and other public charges.
(2) The standard packaging for the delivered goods is included in the purchase price. Special packaging, in particular according to specific requests by the Purchaser, shall 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 invoice date without discount – Volume production parts: 30 days after invoice date without discount.
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 provide payment 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 is € 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 entitled to exercise a right of retention to the extent that 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 creditworthiness 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 default by the Purchaser with regard to its payment obligations vis-a-vis the Vendor.
- 4 Place of performance, shipment, packaging and insurance
(1) Unless agreed otherwise, goods shall be delivered ex works of the Vendor. The place of performance for all obligations arising from the contractual relationship shall be Burgau, unless otherwise agreed.
(2) The mode of shipment and packaging shall be subject to the proper discretion of the Vendor.
(3) The Vendor shall be entitled to provide part-deliveries if
– such part deliveries can be used by the Client in the framework of their contractual purpose,
– the delivery of the remaining goods ordered is assured, and
– the Client does not incur any significant extra or additional expenditure or costs (unless the Vendor declares its willingness to cover such costs).
(4) With goods manufactured to the Purchaser’s specification, the ordered quantities can, for production-related reasons, be 10% above or below the specified quantity (see also § 2 Para. 3).
- 5 Delivery period and default on delivery
(1) The delivery period to be agreed separately commences when the contract is concluded, but not before the complete supply of all permits, documents, releases, etc., to be provided by the Client and not before receipt of any advance payment agreed. The start of any agreed delivery deadline requires the prior clarification of all technical questions between the contractual parties. Delivery dates to be met precisely require sufficient periods of notice and quantities in the scheduling by the contractual partners, which it must be possible for the Vendor to organise. A corresponding objection by the Vendor will revoke the obligation to deliver and oblige both parties to agree a reliable arrangement.
(2) Dates and deadlines for deliveries and services proposed by the Vendor only apply approximately, unless a fixed date or a firm deadline has been explicitly confirmed or agreed. If a shipment was agreed on, the delivery dates and delivery deadlines shall refer to the time the goods are delivered to the shipping company, haulage contractor or other third parties commissioned to transport the goods.
(3) The Vendor may – notwithstanding its rights arising from a default in delivery by the Client – require that the Client extend the times and deadlines for the delivery of goods and provision of services or postpone them by the period in which the Client fails to meet its contractual obligations to the Vendor.
(4) The delivery deadline shall be deemed to have been observed if the delivery item has left the Vendor’s works or the Vendor has notified the Purchaser of the readiness for shipment by the end of the delivery time.
(5) The Vendor will not be liable for the impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or by events which were 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 deliveries 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 deadlines shall be extended or the delivery or service dates postponed by the length of time the obstacle persists plus a reasonable start-up period. If, due to delay, the Client cannot be expected to accept the delivery or service, the Client may withdraw from the contract by means of an immediate written declaration to the Vendor.
(6) If the Vendor is in default with a delivery, the Client shall initially grant an appropriate period of grace to deliver and wait until this period has expired before the Client can pursue other claims or rights.
(7) If the Vendor is in default with a delivery or service or if it becomes impossible for the Vendor to provide the delivery or service – for whatever reason – the Vendor’s liability for any damage claims shall be limited pursuant to § 10 of these general terms and conditions of delivery.
- 6 Transfer of risks, acceptance and default of acceptance
(1) The risk is transferred to the Client no later than at the time of handover of the delivery item (commencement of the loading procedure is definitive) to the forwarding agent, freight carrier or third parties otherwise designated by the Client to expedite shipment. 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 delivery item.
(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 delivery items to be stored per completed week. The option for the parties to assert and substantiate further or lesser storage costs is reserved.
(3) The Purchaser shall take delivery of the supplied goods, even if they are slightly defective, regardless of any liability on the part of the Vendor.
(4) Deliveries on call shall be accepted within two months after the order confirmation.
- 7 Reservation of ownership
(1) The purpose of the reservation of ownership agreed below is to secure all existing current and future claims of the Vendor against the Purchaser arising from the delivery relationship between the contractual parties.
(2) The goods delivered by the Vendor to the Purchaser shall remain the property of the Vendor until payment is made in full in respect of all secured claims pursuant to § 7 (1). The reservation of ownership covers goods from every delivery relationship between the contractual partners (reserved goods) until full payment of all claims due to the Vendor.
(3) The Purchaser shall store the reserved goods at no extra cost to the Vendor.
(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). Pledges and transfers by way of security are not permitted.
(5) In the event of resale of the reserved goods, the Purchaser hereby assigns to the Vendor by way of security the receivables from 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, hereby authorises the Purchaser to collect the receivables assigned to the Vendor, in the Purchaser’s own name but on behalf of the Vendor. The Vendor may only revoke this collection authorisation in the case of an enforcement event (see Paragraph 8).
(6) If third parties access the reserved goods, in particular by pledging, the Purchaser will immediately make them aware of the ownership rights of the Vendor and inform the Vendor of the above to enable it to implement its right of ownership. Where the third party is not in a position to reimburse the Vendor for the judicial or extra-judicial costs arising in this context, the Purchaser shall be liable to the Vendor for these.
(7) The Vendor shall at its discretion release the reserved goods and the items or claims that supersede them upon request provided their value exceeds the amount of the secured claims by more than 50%.
(8) If, in the case of conduct by the Purchaser that is in breach of contractual duties, including payment default, the Vendor rescinds the contract (enforcement event), the Vendor shall be entitled to call for the return of the reserved goods.
- 8 Inspection duties and obligations of the Purchaser in case of defects
(1) The Purchaser shall carefully examine the delivery items immediately after delivery to the Purchaser or to the third party designated by the Purchaser and immediately notify the Vendor if any defects are discovered. The delivery items shall be considered approved if the Vendor does not receive a complaint of obvious defects, or other defects that were recognisable after an immediate, careful inspection, within two working days after delivery of the items, 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 delivery item without closer inspection, whereby this complaint must be submitted in the written form stipulated in § 2 Paragraph 2, final sentence.
(2) The inspection and reporting obligations set out above shall only cease to apply by means of an express written agreement between the Vendor and Purchaser. In these cases as well, the Purchaser shall however be obliged to examine the state of the goods for any recognisable defects during the course of normal business before assembling the goods together with other components or forwarding them to third parties.
(3) At the Vendor’s request and at the discretion of the Vendor, the damaged items shall
- a) either be provided for collection or reworking on-site or reworking by a third party
- b) or sent back to the Vendor with the freight prepaid; if the notice of defects is justified, the Vendor will reimburse the costs of the cheapest method of transport; this does not apply insofar as the costs increase because the delivery item is located somewhere other than the place of use as determined.
- 9 Claims for defects
(1) As a basic rule: the Vendor, as a supplier of metal parts, does not manufacture its own products but manufactures parts according to the customer drawing and customer specifications (in particular with regard to the material). The technical manufacturing advice given by the Vendor in verbal 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 functionality of the contractual object. It will guarantee only the delivery of its product in accordance with the customer drawing (or tested and approved proposed design). Furthermore, the warranty for 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. Defects shall be reported in writing (see § 2 Paragraph 2 last 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 terms and conditions of delivery and payment and in case of doubt take precedence over them.
(3) In the case of material defects in the delivery items, the Vendor is entitled and obliged to decide – within a reasonable period – whether to initially remedy the defect through rework or 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 for manufacturing new products. If the Vendor seriously and definitively refuses supplementary performance, or refuses supplementary performance due to excessive costs, or the supplementary performance fails or is unreasonable for the Client, the Client can only, at its discretion, 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 defect is arising from neglect of duty for which the Vendor is not responsible, the Client is not entitled to withdraw from the contract.
(4) If the Vendor is to blame for a defect, the Client may demand compensation under the conditions stipulated 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 shall be entitled to choose between asserting 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 shall exist under statutory law and in accordance with the provisions 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 delivery item 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 each case the Client must bear the additional costs of remedying defects caused by the modification.
(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 delivery item, the Client shall 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 in the Vendor’s delivery item already existed at the time of transfer of risk to the Client. The Client can assert 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, or the supplementary performance fails or is unreasonable for the Client.
- 10 Liability for damages in case of default
(1) Reference shall also be made to a restriction of the warranty and liability in accordance with § 9. The Vendor is in addition not liable for damages resulting from other components combined or processed with the delivery item. The liability of the Vendor for compensation, irrespective of the legal grounds, in particular in the case of delay, defective or wrong deliveries, breach of contract, breach of duties during contract negotiations or action in tort, to the extent that this involves culpability, shall be limited in accordance with § 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) The Vendor is liable in the cases pursuant to § 10 (2) a) and b) without limit. In other cases, the amount of compensation will be limited in accordance with the following provisions to foreseeable damages in the amount typical for the 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 exercised due care and attention. In addition, indirect damage and consequential damage that arises as a consequence of defects in the delivery item is only grounds for compensation if such damage can be typically expected when using the delivery item 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 delivery item, 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 simple negligence, the Vendor’s obligation to pay compensation for property damage shall be limited to an amount of EUR 5 million per claim unless it involves a breach 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. The Vendor therefore does not accept liability in particular for damages which occur due to a contract concluded with a third party because, in this case, only the respective contractual partner of the Client shall be considered.
(5) The above liability exclusions and limitations shall apply to the same extent to the executive bodies, statutory representatives, employees and other vicarious agents of the Vendor (provided there is a claim for personal liability).
(6) As far as the Vendor renders technical information or counselling services, and such information or services are not part of the Vendor’s contractual duties, such information or services are rendered free of charge and shall be exempt from any liability.
(7) The limits in this § 10 do not apply to the liability of the Vendor due to intentional misconduct, for guaranteed features, for injury to life, physical integrity or health or in accordance with the German Product Liability Act.
- 11 Obligation to avoid and mitigate damages, contributory negligence
(1) During all phases of the conclusion of a contract, the Purchaser shall be obliged, for the enforcement of material defects or other defaults and disruptions such as delay, etc., the cause of which is assumed to be within the scope of performance of the Vendor, to strive to minimise the incurred costs for the rectification and other processing of the default in performance caused by these circumstances.
(2) If the Vendor has contributed to the existence of damages, the obligation to pay compensation and the extent of the compensation payable shall depend upon the circumstances, in particular upon to the extent to which the damages were caused by any particular part. 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 damages of which the Vendor was neither aware nor must have been aware, or that the Purchaser has omitted to avert or to minimise the damages.
(3) The liability regulations pursuant to § 10 of these T&Cs remain unaffected. Reference is made here to the regulation pursuant to § 254 BGB (German Civil Code).
- 12 Temporal limitation
(1) All claims by the Client – on whatever legal grounds – shall expire after two years. § 445b Para. 2 BGB (German Civil Code) remains unaffected.
(2) The legal periods set in accordance with § 10 Paragraph 7 apply to claims for compensation. They also apply to defects in an assembly or to delivery items, which in accordance with their normal mode of application, are used for an assembly and have caused it to be defective.
(3) The period of limitation commences, insofar it concerns claims arising from the defect in the Vendor’s delivery item, with the delivery or, if an acceptance is required, with the acceptance.
- 13 Communication
The parties intend to extensively document their communication, whenever possible. The Vendor shall prepare minutes of meetings/consultancy talks with brief conclusions which the Vendor shall send to the Client by 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 verbally (including by telephone) shall 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 read confirmations or acknowledgements of receipt requested by the Vendor by email within 24 hours. Reference is made here to §§ 14 and 15.
- 14 Right to withhold performance of the Vendor
The Vendor is entitled to refuse to perform or continue 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 partial invoice after partial acceptance, or a reply or read confirmation / acknowledgement of receipt pursuant to § 13 is outstanding from the Client, until the Client’s relevant service has been performed in full.
- 15 Liability of the Client and contractual penalties
(1) In accordance with the legal regulations, the Client shall be obliged to pay compensation to the Vendor if the Client breaches contractual obligations. This particularly applies 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 assertion of untrue facts for the purpose of reducing or contesting compensation of the Vendor as agreed in this contract. This prohibition shall also apply to legal representatives or vicarious agents such as lawyers representing the Client.
(2) On infringement of the prohibition named in (1) a), the Client undertakes to pay a contractual penalty of 20% of the net fee calculated for the works and for infringement of the prohibition named in (1) b) a contractual penalty of 50% of the reduction or disputed amount of the Vendor’s fee intended by making false statements, for each occasion of contravention. The contractual penalties apply without prejudice to the claim of the Vendor for 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 shall expressly reserve the right to file a criminal complaint.
- 16 Concluding provisions
(1) The place of jurisdiction for any disputes that may arise from the business relationship between the Vendor and the Client shall be Günzburg or the headquarters of the Client, at the Vendor’s discretion. 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 relationship between the Vendor and the Client is solely subject to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG) shall 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, in accordance with the meaning and purpose of these T&Cs, had they considered the point.