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Unless the confirmation of an order expresses the contrary, our prices shall be deemed to be “ex works”, excluding packaging and transport insurance; the latter will be invoiced separately. Should cost reductions or cost increases arise following the conclusion of a contract, in particular, as a result of wage settlements or changes in the price of materials, then we reserve the right to change our prices accordingly.
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Statutory value-added tax is not included in our prices; it is entered as a separate item in the invoice at the statutory rate prevailing on the day on which the invoice is made out.
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Unless otherwise agreed, the purchase price is payable with a 2% discount within 14 days or in full within 30 days of the date of the invoice. The granting of a discount is contingent on all invoices that are due at an earlier date and that are not in dispute having been settled. If a contracting party defaults on any payment, then all outstanding invoices shall fall due immediately. The statutory rules governing defaults shall apply with respect to the consequences of any default.
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Payment is to be made in cash, by transfer or, on account of performance, by check.
The right to offset claims against payment is only enjoyed by the customer insofar as his claims against us have been legally recognized, are not disputed by us or are recognized by us. He is, moreover, entitled to a right of retention insofar as his counterclaim pertains to the same contractual relationship.
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The observation of our delivery commitments is contingent on the customer fulfilling his commitments in a timely and proper manner. The right to plead that the contract has not been fulfilled is reserved.
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If the customer is in default of acceptance, or if he otherwise culpably breaches his obligation to co-operate, then we are entitled to demand that any damage accruing to us as a result of this, including any increased expenses, shall be made good. We are not bound by the regulations governing forced sales (“self-help sales”) and are thus free, after giving prior notice, to undertake a private sale of the delivery item.
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Insofar as the terms of Section 2 prevail, the risk of accidental loss or deterioration of the item sold is borne by the customer from the point at which he is in default of acceptance or in debtor’s default.
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In the case of call-off purchase agreements in which no duration, production volume or date of acceptance has been laid down, we can demand a binding commitment on these things, at the latest, three months after an order has been confirmed. If the buyer who has placed the order fails to provide this within three weeks, then we are entitled, after waiting in vain for such a commitment to be made within an appropriate period of grace, to cancel the contract.
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We are entitled to cancel the contract, if it becomes impossible for us to supply the goods punctually, or if it is made unreasonably difficult for us to do this, on the grounds of impossibility, force majeure, strikes, disruption to production or failure of our own suppliers to deliver goods.
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Insofar as the underlying purchase contract is for delivery of goods by a fixed date within the meaning of § 286, Section 2, No. 4 of the German Civil Code or of § 376 of the German Commercial Code, then we bear liability in accordance with the statutory provisions. We also bear liability in accordance with the statutory provisions in cases where, as a result of a delay in delivery for which we are responsible, the customer is entitled to claim that he has no further interest in the contract being fulfilled.
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Moreover, we bear liability in accordance with the statutory provisions in cases where the delay in delivery is attributable to a deliberate or grossly negligent breach of contract for which we are responsible; where blame lies with our sales personnel or with one of their auxiliaries. Insofar as the delay in delivery is not attributable to a deliberate breach of contract for which we are responsible, our liability to pay compensation is limited to damage that is predictable and that typically arises.
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We also bear liability in accordance with the statutory provisions in cases where a delay in delivery for which we are responsible arises from the culpable breach of an important contractual obligation; in this case, however, our liability to pay compensation is limited to damage that is predictable and that typically arises.
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For the rest, in the event of a delay in delivery, we are liable for every full week’s delay, in the framework of a flat rate of compensation, to the sum of, at most, 5% of the consignment’s value.
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Any claims made by the customer relating to defects are contingent on his fulfilling his obligations with respect to verifying, and providing notification of, the defect under § 377 of the German Commercial Code.
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Insofar as a purchased item is determined to be defective, the right to choose between supplementary performance, in the form of removing the defect, and delivery of a new, defect-free item passes to us. In the event of our removing the defect, we are obliged to bear any costs incurred in the course of remedying the defect, in particular, transport and transit costs, labor costs and material costs, insofar as these are not increased by the purchased item having been removed to a place other than the place of fulfillment.
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Should supplementary performance fail, the customer is entitled to choose between canceling the contract or demanding a reduction in the purchase price.
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We bear liability in accordance with the statutory provisions in cases where the customer brings claims for compensation arising from deliberate or grossly negligent behavior, including deliberate or grossly negligent behavior on the part of our sales personnel or their auxiliaries. Unless we are accused of a deliberate breach of contract, the compensation is limited to covering damage that is predictable and that typically arises.
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Liability pertaining to injury to life, body or health remains unaffected; this applies equally to mandatory liability under the provisions of product liability law.
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No contractual guarantee is given as to any particular property of the delivered item (e.g. durability guarantee, sterility, density) or as to its suitability for any particular use to which the customer proposes to put it (e.g. use in the area of food or pharmaceutical products; compatibility with any particular filler substance), nor is any such property guaranteed or obligated by the contract, unless this is agreed in any individual case explicitly and in writing.
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Unless otherwise laid down in the aforesaid, liability is excluded.
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The period of limitations for claims pertaining to defects is six months, calculated from the date of the transfer of risk.
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In the case of delivery recourse actions under §§ 478, 479 of the German Civil Code, the period of limitations is unaffected; it stands at five years, calculated from the delivery of the defective item.
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Liability to pay damages that extends beyond what is laid down in Section VI is excluded, irrespective of the legal nature of the claim that is made. This applies, in particular, to claims for damages arising from culpable actions at the time of closing the contract, from other cases involving a dereliction of duty or from delictual claims for compensation for physical damage under & 823 of the German Civil Code.
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The limitation under Section 1 also applies insofar as the customer demands compensation for superfluous expenses instead of claiming compensation for the damage.
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To the extent that liability for damages is excluded or limited vis-à-vis ourselves, this applies equally with regard to the personal liability for damages borne by our employees, workers, colleagues, sales personnel and auxiliary staff.
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If we are required to deliver on the basis of drawings, models or patterns provided by the purchaser ordering the goods, then the latter is responsible for ensuring that protected property rights possessed by third parties are not breached. The customer indemnifies us from any claims made by third parties on account of breach of protected property rights and will reimburse to us any damages incurred and any costs and expenses. If we and/or the customer are forbidden to produce or deliver a good by a third party invoking protected property rights, then we are entitled to terminate work on the good without further investigating the legal position.
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We reserve to ourselves the property rights to a purchased item until receipt of all payments arising from open account relations with the customer; this reservation applies to the recognized balance.
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Should the customer be in breach of contract, and in particular should he be in default of payment, we are entitled to take back the purchased item. Insofar as we take back the purchased item, this constitutes a cancellation of the contract. After taking back the purchased item, we are entitled to realize its value, in which case the proceeds accruing from this will – less any reasonable costs incurred – be deducted from the customer’s account payable.
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In the event of an attachment, or of any other interventions by third parties, the customer is obliged to inform us without delay, in writing, so that we can file suit under § 771 Civil Procedures Act. In the event of the third party being unable to reimburse the court costs and out-of-court expenses incurred in the course of a lawsuit in accordance with § 771 Civil Procedures Act, the customer is liable to reimburse any shortfall that arises.
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The customer is entitled to sell the purchased item in the context of an ordinary business transaction; from the outset, however, he assigns to us any claims that accrue to him from the sale to his customer or to a third party, irrespective of whether the purchased item has been sold on after being further processed or without further processing, to the amount of the final sum entered in our invoice (including VAT). We accept this assignment. Even after assigning his claim, the customer remains entitled to collect payment on this account receivable. Our right to collect payment on the receivable ourselves is unaffected by this. We pledge, however, not to collect the receivable as long as the customer continues to meet his payment obligations from the proceeds collected, as long as he does not default and, in particular, as long as he does not file a petition in bankruptcy or for Chapter 11 protection or cease to meet outstanding payments. Should this happen, however, then we are entitled to demand that the customer informs us as to the assigned claims and as to the debtors involved, provides us with all the information required to collect them, hands over the associated documentation and informs the debtors (third parties) of the assignment.
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Any processing or adjustment of the purchased item by the customer is always undertaken on our behalf. If the purchased item is processed with other objects that do not belong to us, then we acquire joint ownership of the new item in proportion to the value of the purchased item (final amount entered in the invoice, including VAT) vis-à-vis the other processed objects at the time of the processing. Moreover, the same applies to the item that emerges as a result of the processing as applies to the purchased item that has been delivered conditionally.
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Section 5, sentence 2 applies correspondingly in the event of an indissoluble amalgamation. Should the amalgamation take place in such a way that the customer’s item must be regarded as the main item, then it is to be understood as agreed that the customer transfers joint ownership to us on a pro rata basis. The customer thus preserves on our behalf the resulting sole ownership or joint ownership.
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In order to safeguard our claims against him, the customer also assigns to us any claims against third parties that accrue to him through a combination of the purchased item with a piece of real estate. We accept the assignment.
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We pledge to release collateral to which we have a claim, if requested to do so by the customer, to the extent that the realizable value of the collateral exceeds by more than 10% the sum of the claims that it is designed to secure; the choice of what collateral is to be released shall be made by us.
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The price for molds includes the costs for undertaking a sampling inspection, once, but not for inspection and processing apparatus or for changes instigated by the purchaser. Any costs for subsequent sampling inspections undertaken at the behest of the purchaser shall be incurred at his expense.
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Unless otherwise agreed, the supplier is, and remains, the owner of the molds manufactured on behalf of the purchaser. The supplier is only obliged to replace these molds at no extra cost, if the latter are necessary to ensure that a volume of output that has been guaranteed to the purchaser is met or that a minimum period of use is observed. The supplier’s obligation to store the molds ends two years after the last partial delivery made from a mold has been made and the purchaser has been informed in advance.
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If it is agreed that the purchaser is to be the owner of the mold, then ownership passes to him after the purchase price for this mold has been paid. Transfer of the molds to the purchaser is replaced by the supplier’s obligation to store them. Irrespective of the purchaser’s statutory right to demand that the forms be handed over to him, and irrespective of their useful economic life, the supplier is entitled to exclusive possession of the same up to the end of a particular period of time. The supplier has a duty to ensure them if requested to do so by the purchaser: in this case, the cost is borne by the latter.
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With molds made by the manufacturer himself, in accordance with Section 3, and/or with molds that are lent out by the purchaser for a limited period of time, the supplier’s liability with respect to their storage and care is restricted to his taking due care in the course of his own business. The cost of maintaining and insuring them is borne by the purchaser. The supplier’s obligations end if, after the order has been fulfilled and a request has been made to the purchaser to collect the molds, the latter fails to do this within a reasonable period of time. As long as the purchaser has not fulfilled his contractual obligations to the full, the supplier is indisputably entitled to retain the molds.