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General terms and conditions of sale
General Terms and Conditions of Sale of Präzisionsteile Dresden GmbH & Co. KG, Enno-Heidebroek-Straße 7, 01237 Dresden, Germany
§ 1 General
These General Terms and Conditions (hereinafter also referred to as the "Terms and Conditions") apply to the conclusion of contracts of Präzisionsteile Dresden GmbH & Co. KG (hereinafter referred to as the "Seller") with companies, legal entities under public law or a special fund under public law pursuant to Section 310 (1) BGB (hereinafter also referred to as the "Customer", "Buyer" or "Purchaser"). All deliveries by the Seller and the associated services are provided exclusively on the basis of these General Terms and Conditions of Sale. Any reference by the Buyer to its general terms and conditions of business is hereby expressly rejected. The following Terms and Conditions of Sale shall also apply to future transactions. Deviations from these terms and conditions require the express written approval of the seller. The buyer and the seller are hereinafter jointly referred to as the "contracting parties".
§2. offer and conclusion of contract
2.1 All offers of the Seller are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The Seller may accept orders or commissions within fourteen days of receipt.
2.2 The legal relationship between the Seller and the Buyer shall be governed solely by the contract concluded between the Seller and the Buyer which incorporates these Terms and Conditions and which is concluded by the Buyer's order (offer) and the Seller's written order confirmation (acceptance) or, in the case of binding offers, by the offer and the Buyer's order. This contract fully reflects all agreements between the contracting parties on the subject matter of the contract. Verbal commitments made by the seller prior to the conclusion of this contract are not legally binding and verbal agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they continue to be binding. Additions and amendments to the agreements made, including these terms and conditions, must be made in text form to be effective. Telecommunication transmission, in particular by fax or e-mail, is sufficient for this purpose, provided that a copy of the signed declarations is transmitted. With the exception of managing directors or authorized signatories, the Seller's employees are not entitled to make any verbal agreements deviating from this.
2.3 Information provided by the Seller on the object of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as its representations of the same (e.g. drawings and illustrations) are only approximate, but are determined as best as possible, but are non-binding for the Seller, unless a contractual agreement exists in this respect. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the suitability for the use assumed in the contract.
2.4 The Seller reserves the right of ownership and/or copyright to all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Client. The Client may not make these items accessible to third parties, disclose them, use them itself or through third parties or reproduce them without the express written consent of the Seller. At the Seller's request, the Client must return these items to the Seller in full and destroy any copies made if they are no longer required by the Client in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
§ 3 Prices and payment
3.1 The prices shall apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be invoiced separately. The prices are quoted in EURO gross for net ex works including loading at the works, but excluding unloading, unless otherwise agreed in writing between the Buyer and the Seller. Value added tax at the respective statutory rate shall be added to the prices, as well as customs duties, fees and other public charges in the case of export deliveries. In the case of deliveries and services in the EU, the Buyer must inform the Seller of its respective VAT identification number, under which it carries out the purchase taxation within the EU, and inform the Seller whether a so-called chain transaction in the sense of VAT law exists.
3.2 In the absence of a special agreement, payment shall be made without any deductions and free of charges to a bank account of the Seller. Bills of exchange and checks shall only be accepted on account of performance.
3.3 In the case of immediate delivery of the goods, the price list valid on the day of delivery shall be decisive, otherwise the price stated in the order confirmation or, if the order confirmation does not contain any price details, the price of the price list valid on the day of the order confirmation. The Seller reserves the right to make price changes to the prices stated in catalogs or the price lists attached to them.
3.4 Invoices are due and payable at the time stated in the invoice or agreed between the contracting parties. Unless a special provision or agreement has been made, the invoice is due immediately without deduction and payable within 30 days of the date of the invoice. The date on which the invoice amount is credited to the Seller's bank account shall be decisive for the timeliness of payment.
3.5 The Seller shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the Client and which jeopardize the payment of the Seller's outstanding claims by the Client from the respective contractual relationship (including from other individual orders to which the same framework agreement applies). Furthermore, in such a case the Seller shall be entitled to declare all claims against the Buyer immediately due and payable.
3.6 Without prejudice to further claims, the Seller shall be entitled to suspend further deliveries to the Buyer in the event of payment arrears until all payment arrears from the business relationship have been settled and, in the event of payment arrears, to charge interest on arrears at the statutory rate and reminder fees. In the case of payments after the due date, default interest of 9% p.a. above the base interest rate shall be charged. In addition, the seller shall charge a lump-sum reminder fee of. H. v. 40 €. The rejection of checks or bills of exchange is expressly reserved. Discount and bill charges shall be borne by the Buyer and are due immediately. The seller is not liable for timely presentation. In the case of payment by check, the date of receipt shall be the date on which the check amount is irrevocably credited to the seller's account. The seller is generally entitled to offset payments first against older debts of the buyer and he will inform the buyer of the type of offsetting that has taken place. This shall also apply in the event of contrary provisions of the Buyer. If costs and interest have already been incurred, the Seller shall be entitled to offset the payment first against the costs, then against the interest and finally against the principal performance.
3.7 The Buyer shall only be entitled to withhold payments or offset them against counterclaims to the extent that its counterclaims are undisputed or have been legally established.
3.8 Should unforeseen price increases or reductions beyond the Seller's control occur in the period between conclusion of the contract and delivery due to price changes of more than 10% in the raw materials, consumables or supplies used, the Seller or the Buyer shall be entitled to demand an adjustment of the agreed purchase price from the other party to the contract by renegotiation. The validity of the rest of the contract remains unaffected by these renegotiations. If the renegotiations do not lead to an agreement, both the seller and the buyer are entitled to withdraw from the contract.
3.9 The same shall apply if the consumer price index officially determined by the Federal Statistical Office in Wiesbaden for the entire Federal Republic of Germany changes by more than 5% between the conclusion of the contract and delivery compared to the level at the time of the Buyer's order.
§ 4 Delivery time, delays in delivery
4.1 The delivery time is determined by the agreements between the contracting parties. The Seller's adherence to the delivery time requires that all commercial and technical questions between the contracting parties have been clarified and that the Buyer has fulfilled all obligations incumbent upon him. If this is not the case, the delivery time shall be extended accordingly, unless the Seller is responsible for the delay. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with transportation.
4.2 If dispatch or acceptance does not take place on time due to the fault of the Buyer, the Seller shall be entitled, at its discretion, after setting a grace period of 12 days, either to issue an invoice for arrears or to withdraw from the contract or to claim damages.
4.3 The Seller shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the supply chain). disruptions of operations of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which the Seller is not responsible. If such events make delivery or performance significantly more difficult or impossible for the Seller and the hindrance is not only of a temporary nature, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to the seller.
4.4 The Buyer may withdraw from the contract without setting a deadline if the entire performance becomes definitively impossible for the Seller before the transfer of risk. The Buyer may also withdraw from the contract if, in the case of an order, the execution of part of the delivery becomes impossible and the Buyer has a justified interest in rejecting the partial delivery. If this is not the case, the buyer must pay the contractual price attributable to the partial delivery. The same shall apply in the event of the Seller's inability to perform.
4.5 If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for whatever reason, the Seller's liability for damages shall be limited in accordance with § 9 of these Terms and Conditions.
§ 5 Place of performance, dispatch, packaging, delivery and acceptance
5.1 The place of performance for all services arising from the contract concluded between the Seller and the Buyer is the place of the Seller's commercial establishment. If the Seller is also responsible for installation, the place of performance shall be the place where the installation is to be carried out.
5.2 Unless otherwise agreed, the goods shall be delivered ex domestic works - EXW in accordance with Incoterms 2010. The Buyer shall bear the shipping costs. The Buyer may determine the carrier. The goods shall be shipped unsecured. A shipping notification can be agreed. The Seller shall only insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Buyer and at the Buyer's expense.
5.3 Packaging costs for special packaging, such as sleeves etc., shall be borne by the Buyer unless the parties agree otherwise.
5.4 Sorted and, in the case of combinations, saleable partial deliveries are permissible, provided that they are reasonable for the Buyer or have been announced in advance. Unsorted partial deliveries shall only be permitted with the Buyer's consent.
5.5 The risk shall pass to the Buyer when the delivery item has left the factory, even if partial deliveries are made or the Seller has assumed other services, such as shipping costs or delivery and installation. This shall apply irrespective of which clause pursuant to Incoterms 2010 has been agreed in the individual case. If acceptance is required, this shall be decisive for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively after the seller's notification of readiness for acceptance. The Buyer may not refuse acceptance in the event of a minor defect.
5.6 If dispatch or acceptance is delayed or does not take place as a result of circumstances for which the Seller is not responsible, the risk shall pass to the Buyer from the date of notification of readiness for dispatch or acceptance.
5.7 Storage costs after the transfer of risk shall be borne by the customer. In the case of storage by the Seller, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per week elapsed. The assertion and proof of further or lower storage costs shall remain reserved.
5.8 If acceptance is to take place, the purchased item shall be deemed to have been accepted if
5.8.1 the delivery and, if the seller also owes the installation, the installation has been completed,
5.8.2 the Seller has notified the Client of this with reference to the fiction of acceptance in accordance with this § 5 and has requested acceptance,
5.8.3 twelve working days have passed since delivery or installation or the Client has started to use the purchased item (e.g. has put the delivered system into operation) and in this case six working days have passed since delivery or installation, and
5.8.4 the Client has failed to accept the goods within this period for a reason other than a defect notified to the Seller which makes the use of the purchased item impossible or significantly impairs it.
§ 6 Retention of title
6.1 The goods shall remain the property of the Seller until full payment of all claims arising from deliveries of goods from the entire business relationship between the Seller and the Buyer, including ancillary claims, claims for damages and redemption of checks and bills of exchange. The retention of title shall remain in force even if individual claims of the Seller are included in a current account and the balance is drawn and recognized.
6.2 If the goods subject to retention of title are combined, mixed or processed by the Buyer to form a new movable item, this shall be done on behalf of the Seller without the Seller becoming obligated as a result. By combining, mixing or processing, the buyer does not acquire ownership of the new item in accordance with §§ 947 ff. BGB to the new item. In the event of combination, mixing or processing with items not belonging to the Seller, the Seller shall acquire co-ownership of the new item in the ratio of the invoice value plus VAT of its reserved goods to the total value. In all other respects, the same shall apply to the item created by processing as to the purchased item delivered under retention of title.
6.3 If a central settlement agent is involved in the business transaction between the Seller and the Buyer, who assumes the del credere, the Seller shall transfer ownership upon dispatch of the goods to the central settlement agent subject to the condition precedent of payment of the purchase price by the central settlement agent. The Buyer shall only be released upon payment by the central settlement agent.
6.4 The Buyer is only entitled to resell or process the goods subject to the following conditions.
6.5 The Buyer may only sell or process the goods subject to retention of title in the ordinary course of business and provided that his financial circumstances do not deteriorate in the long term.
6.6 The Buyer hereby assigns the claim with all ancillary rights from the resale of the reserved goods - including any balance claims - to the Seller.
6.7 If the Buyer has sold the claim within the framework of genuine factoring, the Buyer assigns the claim against the factor taking its place to the Seller and forwards its sales proceeds to the Seller in proportion to the value of the Seller's rights to the goods. The buyer is obliged to disclose the assignment to the factor if he is more than 10 days overdue with the payment of an invoice or if his financial circumstances deteriorate significantly. The seller accepts this assignment.
6.8 The Buyer is authorized to collect the assigned claims as long as he meets his payment obligations. The direct debit authorization shall expire in the event of default in payment by the Buyer or in the event of a significant deterioration in the Buyer's financial circumstances. In this case, the seller is hereby authorized by the buyer to inform the customers of the assignment and to collect the claims himself.
6.9 In order to assert the assigned claims, the Buyer must provide the necessary information and allow this information to be checked. In particular, he must provide the Seller on request with a precise list of the claims to which he is entitled, including the names and addresses of the customers, the amount of the individual claims, invoice date, etc.
6.10 If the value of the security existing for the seller exceeds the seller's total claims by more than 10%, the seller shall be obliged to release securities of his choice at the buyer's request.
6.11 If third parties seize the reserved goods, in particular by attachment, the Buyer shall immediately inform them of the Seller's ownership and inform the Seller thereof in order to enable the Seller to enforce its ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable to the Seller.
6.12 If the Seller takes back the delivery item while exercising its retention of title, this shall only constitute a withdrawal from the contract if the Seller expressly declares this. The Seller may satisfy its claims from the returned goods subject to retention of title by selling them in the open market.
6.13 The Buyer shall store the reserved goods for the Seller free of charge. He shall insure them against the usual risks, such as fire, theft and water to the customary extent. The Buyer hereby assigns to the Seller its claims for compensation to which it is entitled against insurance companies or other parties liable for compensation arising from damage of the above-mentioned type, in the amount of the invoice value of the goods. The seller accepts the assignment.
§ 7 Warranty
7.1 The warranty period shall be one year from delivery or, if acceptance is required, from acceptance.
7.2 The delivered items must be carefully inspected immediately after delivery to the customer or to the third party designated by the customer. The Seller must be notified of any defects within 12 days of receipt of the goods at the latest.
7.3 After cutting or otherwise commenced processing of the delivered goods, any complaint about obvious defects is excluded.
7.4 Minor, technically unavoidable deviations in quality, color, width, weight, finish or design may not be objected to. This also applies to deviations customary in the trade, unless the Seller has declared in writing that the delivery is true to sample. In the event of justified complaints, the seller has the right to choose between rectification of the defect or delivery of defect-free replacement goods. In this case, the Seller shall bear the freight costs. After consultation with the Seller, the Buyer shall give the Seller the necessary time and opportunity to carry out all repairs and replacement deliveries which the Seller deems necessary; otherwise the Seller shall be released from liability for the resulting consequences. Only in urgent cases of danger to operational safety or to prevent disproportionately large damage, in which case the Seller must be notified immediately, shall the Buyer have the right to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary expenses from the Seller. At the Seller's request, the defective delivery item shall be returned to the Seller carriage paid. In the event of a justified complaint, the Seller shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
7.5 The Buyer has the right to withdraw from the contract within the framework of the statutory provisions if the Seller - taking into account the statutory exceptions - allows a reasonable deadline set for him for the rectification or replacement delivery due to a material defect to expire fruitlessly. If there is only an insignificant defect, the buyer is only entitled to a reduction in the contract price. The right to reduce the contract price is otherwise excluded.
7.6 Claims for damages due to defects in the subject matter of the contract can only be asserted subject to the restrictions set out in § 9.
7.7 No warranty is assumed for the subject matter of the contract in the following cases in particular:
7.7.1 Unsuitable or improper use, faulty assembly by the Buyer or third parties, natural wear and tear, faulty or negligent handling, chemical, electrochemical or electrical influences, unless the Seller is responsible for them.
7.7.2 If the Buyer or a third party carries out improper repairs, the Seller shall not be liable for the resulting consequences.
§ 8 Industrial property rights
8.1 If the use of the delivery item leads to an infringement of industrial property rights or copyrights in Germany, the Seller shall, at its own expense, procure the right for the Buyer to continue using the delivery item or modify the delivery item in a manner that is reasonable for the Buyer so that the infringement of property rights no longer exists.
8.2 If this is not possible under economically reasonable conditions or within a reasonable period of time, both the Buyer and the Seller shall be entitled to withdraw from the contract. In addition, the Seller shall indemnify the Buyer against undisputed or legally established claims of the respective owners of the property rights.
8.3 Subject to § 8.2, the Seller's obligations set out in § 8.1 are conclusive in the event of an infringement of property rights or copyright.
8.4 The obligations specified in § 8.1 and § 8.2 shall only apply if
8.4.1 the Buyer informs the Seller immediately of any asserted infringements of industrial property rights or copyrights,
8.4.2 the Buyer supports the Seller to a reasonable extent in the defense against the asserted claims or enables the Seller to carry out the modification measures in accordance with § 8.1,
8.4.3 the Seller reserves the right to take all defensive measures, including out-of-court settlements,
8.4.4 the defect of title is not based on an instruction of the Buyer and
8.4.5 the infringement of rights was not caused by the fact that the Buyer modified the delivery item without authorization or used it in a manner not in accordance with the contract.
§ 9 Liability for damages due to fault
9.1 The Seller's liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, is limited in accordance with this § 9 insofar as fault is involved.
9.2 The Seller shall not be liable in the event of simple negligence on the part of the Seller or its bodies, legal representatives, employees or other vicarious agents, unless it is a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the goods on time and free of defects as well as obligations to provide advice, protection and care which are intended to enable the Client to use the delivered goods in accordance with the contract or which are intended to protect the life and limb of the Client's personnel or third parties or the Client's property from significant damage.
9.3 Insofar as the Seller is liable for damages in accordance with § 9.2, this liability shall be limited to damages which the Seller foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which the Seller should have foreseen if it had exercised due care, taking into account the circumstances of which it was aware or should have been aware. Liability for indirect damages (e.g. loss of profit or loss of use, etc.) is excluded to the extent permissible.
9.4 The above exclusions and limitations of liability shall apply to the same extent in favor of the Seller's executive bodies, legal representatives, employees and other vicarious agents.
9.5 Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by the Seller, this is done free of charge and to the exclusion of any liability.
9.6 The limitations of this § 9 shall not apply to the Seller's liability for intentional or grossly negligent behavior, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
§10 Compliance with export regulations
10.1 The Buyer shall comply with all applicable national, European and US export control regulations, including all European or US sanctions lists and other personal embargoes (together "Export Control Regulations"), unless prohibited under § 7 AWV. The Buyer undertakes to inform the Seller without being requested to do so, stating the specific AL or ECCN number in the event that goods to be delivered or their components are listed in the Export List, Annexes I and IV or the Commerce Control List ("CCL"). The Buyer is obliged to notify the Seller immediately in writing of all circumstances or suspicious facts of which it becomes aware before or after conclusion of the contract which give rise to the assumption of a possible or actual violation of export control regulations. If such circumstances or suspicions exist, the Seller shall not be in default of acceptance for a reasonable period of time in order to give the Seller the opportunity to verify them, without prejudice to any further claims of the Seller.
10.2 The Seller's performance of the contract is subject to the proviso that there are no obstacles to performance due to national or international provisions of foreign trade law and no embargoes and/or other sanctions.
§ 11 Compliance with laws
11.1 The contracting parties shall generally and for the duration of the contract ensure compliance with all applicable laws, ordinances and regulations, including all relevant anti-corruption laws and regulations, in particular the UK Bribery Act and the U.S. Foreign Corrupt Practices Act. The Client shall not commit any prohibited acts, either directly or indirectly, in connection with the contractual services under this contract. Prohibited acts include, in particular, promising, offering or granting, or requesting or accepting an improper advantage or benefit in order to improperly influence actions. Reference is made to the Contractor's Code of Conduct, which can be viewed on the website "www.mehler- ep.com".
11.2 If the Client breaches the obligation in Clause 11.1, the Seller shall be entitled to terminate this contract in writing without notice and without any further obligations or liability towards the Client. The Client shall fully indemnify and hold the Seller harmless from and against all damages, losses, withholding of payments, claims and third-party claims arising from or in connection with the termination.
11.3 The contracting parties undertake to comply with the provisions of the EU General Data Protection Regulation and the German Federal Data Protection Act in the event that personal data is processed. Reference is made to the seller's data protection declaration, which can be viewed on the website "www.kap-precision.com".
§ 12 Final provisions
12.1 All legal relationships between the Seller and the Buyer shall be governed exclusively by the law of the Federal Republic of Germany applicable to legal relationships between domestic parties.
12.2 The place of jurisdiction is the court responsible for the registered office of the Seller. However, the Seller shall be entitled to bring an action at the Buyer's principal place of business.
12.3 Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, the statutory provisions shall apply to fill these loopholes.
Präzisionsteile Dresden GmbH & Co. KG, Version 2.0, June 2020
These General Terms and Conditions (hereinafter also referred to as the "Terms and Conditions") apply to the conclusion of contracts of Präzisionsteile Dresden GmbH & Co. KG (hereinafter referred to as the "Seller") with companies, legal entities under public law or a special fund under public law pursuant to Section 310 (1) BGB (hereinafter also referred to as the "Customer", "Buyer" or "Purchaser"). All deliveries by the Seller and the associated services are provided exclusively on the basis of these General Terms and Conditions of Sale. Any reference by the Buyer to its general terms and conditions of business is hereby expressly rejected. The following Terms and Conditions of Sale shall also apply to future transactions. Deviations from these terms and conditions require the express written approval of the seller. The buyer and the seller are hereinafter jointly referred to as the "contracting parties".
§2. offer and conclusion of contract
2.1 All offers of the Seller are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The Seller may accept orders or commissions within fourteen days of receipt.
2.2 The legal relationship between the Seller and the Buyer shall be governed solely by the contract concluded between the Seller and the Buyer which incorporates these Terms and Conditions and which is concluded by the Buyer's order (offer) and the Seller's written order confirmation (acceptance) or, in the case of binding offers, by the offer and the Buyer's order. This contract fully reflects all agreements between the contracting parties on the subject matter of the contract. Verbal commitments made by the seller prior to the conclusion of this contract are not legally binding and verbal agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they continue to be binding. Additions and amendments to the agreements made, including these terms and conditions, must be made in text form to be effective. Telecommunication transmission, in particular by fax or e-mail, is sufficient for this purpose, provided that a copy of the signed declarations is transmitted. With the exception of managing directors or authorized signatories, the Seller's employees are not entitled to make any verbal agreements deviating from this.
2.3 Information provided by the Seller on the object of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as its representations of the same (e.g. drawings and illustrations) are only approximate, but are determined as best as possible, but are non-binding for the Seller, unless a contractual agreement exists in this respect. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the suitability for the use assumed in the contract.
2.4 The Seller reserves the right of ownership and/or copyright to all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Client. The Client may not make these items accessible to third parties, disclose them, use them itself or through third parties or reproduce them without the express written consent of the Seller. At the Seller's request, the Client must return these items to the Seller in full and destroy any copies made if they are no longer required by the Client in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
§ 3 Prices and payment
3.1 The prices shall apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be invoiced separately. The prices are quoted in EURO gross for net ex works including loading at the works, but excluding unloading, unless otherwise agreed in writing between the Buyer and the Seller. Value added tax at the respective statutory rate shall be added to the prices, as well as customs duties, fees and other public charges in the case of export deliveries. In the case of deliveries and services in the EU, the Buyer must inform the Seller of its respective VAT identification number, under which it carries out the purchase taxation within the EU, and inform the Seller whether a so-called chain transaction in the sense of VAT law exists.
3.2 In the absence of a special agreement, payment shall be made without any deductions and free of charges to a bank account of the Seller. Bills of exchange and checks shall only be accepted on account of performance.
3.3 In the case of immediate delivery of the goods, the price list valid on the day of delivery shall be decisive, otherwise the price stated in the order confirmation or, if the order confirmation does not contain any price details, the price of the price list valid on the day of the order confirmation. The Seller reserves the right to make price changes to the prices stated in catalogs or the price lists attached to them.
3.4 Invoices are due and payable at the time stated in the invoice or agreed between the contracting parties. Unless a special provision or agreement has been made, the invoice is due immediately without deduction and payable within 30 days of the date of the invoice. The date on which the invoice amount is credited to the Seller's bank account shall be decisive for the timeliness of payment.
3.5 The Seller shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the Client and which jeopardize the payment of the Seller's outstanding claims by the Client from the respective contractual relationship (including from other individual orders to which the same framework agreement applies). Furthermore, in such a case the Seller shall be entitled to declare all claims against the Buyer immediately due and payable.
3.6 Without prejudice to further claims, the Seller shall be entitled to suspend further deliveries to the Buyer in the event of payment arrears until all payment arrears from the business relationship have been settled and, in the event of payment arrears, to charge interest on arrears at the statutory rate and reminder fees. In the case of payments after the due date, default interest of 9% p.a. above the base interest rate shall be charged. In addition, the seller shall charge a lump-sum reminder fee of. H. v. 40 €. The rejection of checks or bills of exchange is expressly reserved. Discount and bill charges shall be borne by the Buyer and are due immediately. The seller is not liable for timely presentation. In the case of payment by check, the date of receipt shall be the date on which the check amount is irrevocably credited to the seller's account. The seller is generally entitled to offset payments first against older debts of the buyer and he will inform the buyer of the type of offsetting that has taken place. This shall also apply in the event of contrary provisions of the Buyer. If costs and interest have already been incurred, the Seller shall be entitled to offset the payment first against the costs, then against the interest and finally against the principal performance.
3.7 The Buyer shall only be entitled to withhold payments or offset them against counterclaims to the extent that its counterclaims are undisputed or have been legally established.
3.8 Should unforeseen price increases or reductions beyond the Seller's control occur in the period between conclusion of the contract and delivery due to price changes of more than 10% in the raw materials, consumables or supplies used, the Seller or the Buyer shall be entitled to demand an adjustment of the agreed purchase price from the other party to the contract by renegotiation. The validity of the rest of the contract remains unaffected by these renegotiations. If the renegotiations do not lead to an agreement, both the seller and the buyer are entitled to withdraw from the contract.
3.9 The same shall apply if the consumer price index officially determined by the Federal Statistical Office in Wiesbaden for the entire Federal Republic of Germany changes by more than 5% between the conclusion of the contract and delivery compared to the level at the time of the Buyer's order.
§ 4 Delivery time, delays in delivery
4.1 The delivery time is determined by the agreements between the contracting parties. The Seller's adherence to the delivery time requires that all commercial and technical questions between the contracting parties have been clarified and that the Buyer has fulfilled all obligations incumbent upon him. If this is not the case, the delivery time shall be extended accordingly, unless the Seller is responsible for the delay. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with transportation.
4.2 If dispatch or acceptance does not take place on time due to the fault of the Buyer, the Seller shall be entitled, at its discretion, after setting a grace period of 12 days, either to issue an invoice for arrears or to withdraw from the contract or to claim damages.
4.3 The Seller shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the supply chain). disruptions of operations of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which the Seller is not responsible. If such events make delivery or performance significantly more difficult or impossible for the Seller and the hindrance is not only of a temporary nature, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to the seller.
4.4 The Buyer may withdraw from the contract without setting a deadline if the entire performance becomes definitively impossible for the Seller before the transfer of risk. The Buyer may also withdraw from the contract if, in the case of an order, the execution of part of the delivery becomes impossible and the Buyer has a justified interest in rejecting the partial delivery. If this is not the case, the buyer must pay the contractual price attributable to the partial delivery. The same shall apply in the event of the Seller's inability to perform.
4.5 If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for whatever reason, the Seller's liability for damages shall be limited in accordance with § 9 of these Terms and Conditions.
§ 5 Place of performance, dispatch, packaging, delivery and acceptance
5.1 The place of performance for all services arising from the contract concluded between the Seller and the Buyer is the place of the Seller's commercial establishment. If the Seller is also responsible for installation, the place of performance shall be the place where the installation is to be carried out.
5.2 Unless otherwise agreed, the goods shall be delivered ex domestic works - EXW in accordance with Incoterms 2010. The Buyer shall bear the shipping costs. The Buyer may determine the carrier. The goods shall be shipped unsecured. A shipping notification can be agreed. The Seller shall only insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Buyer and at the Buyer's expense.
5.3 Packaging costs for special packaging, such as sleeves etc., shall be borne by the Buyer unless the parties agree otherwise.
5.4 Sorted and, in the case of combinations, saleable partial deliveries are permissible, provided that they are reasonable for the Buyer or have been announced in advance. Unsorted partial deliveries shall only be permitted with the Buyer's consent.
5.5 The risk shall pass to the Buyer when the delivery item has left the factory, even if partial deliveries are made or the Seller has assumed other services, such as shipping costs or delivery and installation. This shall apply irrespective of which clause pursuant to Incoterms 2010 has been agreed in the individual case. If acceptance is required, this shall be decisive for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively after the seller's notification of readiness for acceptance. The Buyer may not refuse acceptance in the event of a minor defect.
5.6 If dispatch or acceptance is delayed or does not take place as a result of circumstances for which the Seller is not responsible, the risk shall pass to the Buyer from the date of notification of readiness for dispatch or acceptance.
5.7 Storage costs after the transfer of risk shall be borne by the customer. In the case of storage by the Seller, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per week elapsed. The assertion and proof of further or lower storage costs shall remain reserved.
5.8 If acceptance is to take place, the purchased item shall be deemed to have been accepted if
5.8.1 the delivery and, if the seller also owes the installation, the installation has been completed,
5.8.2 the Seller has notified the Client of this with reference to the fiction of acceptance in accordance with this § 5 and has requested acceptance,
5.8.3 twelve working days have passed since delivery or installation or the Client has started to use the purchased item (e.g. has put the delivered system into operation) and in this case six working days have passed since delivery or installation, and
5.8.4 the Client has failed to accept the goods within this period for a reason other than a defect notified to the Seller which makes the use of the purchased item impossible or significantly impairs it.
§ 6 Retention of title
6.1 The goods shall remain the property of the Seller until full payment of all claims arising from deliveries of goods from the entire business relationship between the Seller and the Buyer, including ancillary claims, claims for damages and redemption of checks and bills of exchange. The retention of title shall remain in force even if individual claims of the Seller are included in a current account and the balance is drawn and recognized.
6.2 If the goods subject to retention of title are combined, mixed or processed by the Buyer to form a new movable item, this shall be done on behalf of the Seller without the Seller becoming obligated as a result. By combining, mixing or processing, the buyer does not acquire ownership of the new item in accordance with §§ 947 ff. BGB to the new item. In the event of combination, mixing or processing with items not belonging to the Seller, the Seller shall acquire co-ownership of the new item in the ratio of the invoice value plus VAT of its reserved goods to the total value. In all other respects, the same shall apply to the item created by processing as to the purchased item delivered under retention of title.
6.3 If a central settlement agent is involved in the business transaction between the Seller and the Buyer, who assumes the del credere, the Seller shall transfer ownership upon dispatch of the goods to the central settlement agent subject to the condition precedent of payment of the purchase price by the central settlement agent. The Buyer shall only be released upon payment by the central settlement agent.
6.4 The Buyer is only entitled to resell or process the goods subject to the following conditions.
6.5 The Buyer may only sell or process the goods subject to retention of title in the ordinary course of business and provided that his financial circumstances do not deteriorate in the long term.
6.6 The Buyer hereby assigns the claim with all ancillary rights from the resale of the reserved goods - including any balance claims - to the Seller.
6.7 If the Buyer has sold the claim within the framework of genuine factoring, the Buyer assigns the claim against the factor taking its place to the Seller and forwards its sales proceeds to the Seller in proportion to the value of the Seller's rights to the goods. The buyer is obliged to disclose the assignment to the factor if he is more than 10 days overdue with the payment of an invoice or if his financial circumstances deteriorate significantly. The seller accepts this assignment.
6.8 The Buyer is authorized to collect the assigned claims as long as he meets his payment obligations. The direct debit authorization shall expire in the event of default in payment by the Buyer or in the event of a significant deterioration in the Buyer's financial circumstances. In this case, the seller is hereby authorized by the buyer to inform the customers of the assignment and to collect the claims himself.
6.9 In order to assert the assigned claims, the Buyer must provide the necessary information and allow this information to be checked. In particular, he must provide the Seller on request with a precise list of the claims to which he is entitled, including the names and addresses of the customers, the amount of the individual claims, invoice date, etc.
6.10 If the value of the security existing for the seller exceeds the seller's total claims by more than 10%, the seller shall be obliged to release securities of his choice at the buyer's request.
6.11 If third parties seize the reserved goods, in particular by attachment, the Buyer shall immediately inform them of the Seller's ownership and inform the Seller thereof in order to enable the Seller to enforce its ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable to the Seller.
6.12 If the Seller takes back the delivery item while exercising its retention of title, this shall only constitute a withdrawal from the contract if the Seller expressly declares this. The Seller may satisfy its claims from the returned goods subject to retention of title by selling them in the open market.
6.13 The Buyer shall store the reserved goods for the Seller free of charge. He shall insure them against the usual risks, such as fire, theft and water to the customary extent. The Buyer hereby assigns to the Seller its claims for compensation to which it is entitled against insurance companies or other parties liable for compensation arising from damage of the above-mentioned type, in the amount of the invoice value of the goods. The seller accepts the assignment.
§ 7 Warranty
7.1 The warranty period shall be one year from delivery or, if acceptance is required, from acceptance.
7.2 The delivered items must be carefully inspected immediately after delivery to the customer or to the third party designated by the customer. The Seller must be notified of any defects within 12 days of receipt of the goods at the latest.
7.3 After cutting or otherwise commenced processing of the delivered goods, any complaint about obvious defects is excluded.
7.4 Minor, technically unavoidable deviations in quality, color, width, weight, finish or design may not be objected to. This also applies to deviations customary in the trade, unless the Seller has declared in writing that the delivery is true to sample. In the event of justified complaints, the seller has the right to choose between rectification of the defect or delivery of defect-free replacement goods. In this case, the Seller shall bear the freight costs. After consultation with the Seller, the Buyer shall give the Seller the necessary time and opportunity to carry out all repairs and replacement deliveries which the Seller deems necessary; otherwise the Seller shall be released from liability for the resulting consequences. Only in urgent cases of danger to operational safety or to prevent disproportionately large damage, in which case the Seller must be notified immediately, shall the Buyer have the right to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary expenses from the Seller. At the Seller's request, the defective delivery item shall be returned to the Seller carriage paid. In the event of a justified complaint, the Seller shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
7.5 The Buyer has the right to withdraw from the contract within the framework of the statutory provisions if the Seller - taking into account the statutory exceptions - allows a reasonable deadline set for him for the rectification or replacement delivery due to a material defect to expire fruitlessly. If there is only an insignificant defect, the buyer is only entitled to a reduction in the contract price. The right to reduce the contract price is otherwise excluded.
7.6 Claims for damages due to defects in the subject matter of the contract can only be asserted subject to the restrictions set out in § 9.
7.7 No warranty is assumed for the subject matter of the contract in the following cases in particular:
7.7.1 Unsuitable or improper use, faulty assembly by the Buyer or third parties, natural wear and tear, faulty or negligent handling, chemical, electrochemical or electrical influences, unless the Seller is responsible for them.
7.7.2 If the Buyer or a third party carries out improper repairs, the Seller shall not be liable for the resulting consequences.
§ 8 Industrial property rights
8.1 If the use of the delivery item leads to an infringement of industrial property rights or copyrights in Germany, the Seller shall, at its own expense, procure the right for the Buyer to continue using the delivery item or modify the delivery item in a manner that is reasonable for the Buyer so that the infringement of property rights no longer exists.
8.2 If this is not possible under economically reasonable conditions or within a reasonable period of time, both the Buyer and the Seller shall be entitled to withdraw from the contract. In addition, the Seller shall indemnify the Buyer against undisputed or legally established claims of the respective owners of the property rights.
8.3 Subject to § 8.2, the Seller's obligations set out in § 8.1 are conclusive in the event of an infringement of property rights or copyright.
8.4 The obligations specified in § 8.1 and § 8.2 shall only apply if
8.4.1 the Buyer informs the Seller immediately of any asserted infringements of industrial property rights or copyrights,
8.4.2 the Buyer supports the Seller to a reasonable extent in the defense against the asserted claims or enables the Seller to carry out the modification measures in accordance with § 8.1,
8.4.3 the Seller reserves the right to take all defensive measures, including out-of-court settlements,
8.4.4 the defect of title is not based on an instruction of the Buyer and
8.4.5 the infringement of rights was not caused by the fact that the Buyer modified the delivery item without authorization or used it in a manner not in accordance with the contract.
§ 9 Liability for damages due to fault
9.1 The Seller's liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, is limited in accordance with this § 9 insofar as fault is involved.
9.2 The Seller shall not be liable in the event of simple negligence on the part of the Seller or its bodies, legal representatives, employees or other vicarious agents, unless it is a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the goods on time and free of defects as well as obligations to provide advice, protection and care which are intended to enable the Client to use the delivered goods in accordance with the contract or which are intended to protect the life and limb of the Client's personnel or third parties or the Client's property from significant damage.
9.3 Insofar as the Seller is liable for damages in accordance with § 9.2, this liability shall be limited to damages which the Seller foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which the Seller should have foreseen if it had exercised due care, taking into account the circumstances of which it was aware or should have been aware. Liability for indirect damages (e.g. loss of profit or loss of use, etc.) is excluded to the extent permissible.
9.4 The above exclusions and limitations of liability shall apply to the same extent in favor of the Seller's executive bodies, legal representatives, employees and other vicarious agents.
9.5 Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by the Seller, this is done free of charge and to the exclusion of any liability.
9.6 The limitations of this § 9 shall not apply to the Seller's liability for intentional or grossly negligent behavior, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
§10 Compliance with export regulations
10.1 The Buyer shall comply with all applicable national, European and US export control regulations, including all European or US sanctions lists and other personal embargoes (together "Export Control Regulations"), unless prohibited under § 7 AWV. The Buyer undertakes to inform the Seller without being requested to do so, stating the specific AL or ECCN number in the event that goods to be delivered or their components are listed in the Export List, Annexes I and IV or the Commerce Control List ("CCL"). The Buyer is obliged to notify the Seller immediately in writing of all circumstances or suspicious facts of which it becomes aware before or after conclusion of the contract which give rise to the assumption of a possible or actual violation of export control regulations. If such circumstances or suspicions exist, the Seller shall not be in default of acceptance for a reasonable period of time in order to give the Seller the opportunity to verify them, without prejudice to any further claims of the Seller.
10.2 The Seller's performance of the contract is subject to the proviso that there are no obstacles to performance due to national or international provisions of foreign trade law and no embargoes and/or other sanctions.
§ 11 Compliance with laws
11.1 The contracting parties shall generally and for the duration of the contract ensure compliance with all applicable laws, ordinances and regulations, including all relevant anti-corruption laws and regulations, in particular the UK Bribery Act and the U.S. Foreign Corrupt Practices Act. The Client shall not commit any prohibited acts, either directly or indirectly, in connection with the contractual services under this contract. Prohibited acts include, in particular, promising, offering or granting, or requesting or accepting an improper advantage or benefit in order to improperly influence actions. Reference is made to the Contractor's Code of Conduct, which can be viewed on the website "www.mehler- ep.com".
11.2 If the Client breaches the obligation in Clause 11.1, the Seller shall be entitled to terminate this contract in writing without notice and without any further obligations or liability towards the Client. The Client shall fully indemnify and hold the Seller harmless from and against all damages, losses, withholding of payments, claims and third-party claims arising from or in connection with the termination.
11.3 The contracting parties undertake to comply with the provisions of the EU General Data Protection Regulation and the German Federal Data Protection Act in the event that personal data is processed. Reference is made to the seller's data protection declaration, which can be viewed on the website "www.kap-precision.com".
§ 12 Final provisions
12.1 All legal relationships between the Seller and the Buyer shall be governed exclusively by the law of the Federal Republic of Germany applicable to legal relationships between domestic parties.
12.2 The place of jurisdiction is the court responsible for the registered office of the Seller. However, the Seller shall be entitled to bring an action at the Buyer's principal place of business.
12.3 Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, the statutory provisions shall apply to fill these loopholes.
Präzisionsteile Dresden GmbH & Co. KG, Version 2.0, June 2020
Precision parts Dresden
Enno-Heidebroek-Strasse 7
01237 Dresden
Germany
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