General Terms and Conditions
§ 1 General
- Only our Terms and Conditions are applicable for all transactions. Customers' terms that do not coincide in all respects with our terms are not applicable and shall not be recognized, unless on written agreement. Our terms also apply when goods are implicitly delivered to a customer, whose terms are known to contradict or deviate from ours.
- Our Terms shall apply to all future transactions with the purchaser.
- Contracts made under an existing, valid obligation become subject to these Sales and Delivery Terms after 01.08.2008.
- Our Sales Conditions only apply to persons acting in a commercial or self-employed capacity when signing the contract, official legal representatives and public special assets.
§ 2 Quotations
- Our quotations are subject to change without notice.
- Orders are accepted within 6 weeks from receipt of the quotation.
- Our written order confirmation is decisive for the volume of the delivery. Guarantees for extra features, supplements or special arrangements must be given in writing in order to be effective.
- Our Sales Staff is not authorized to make verbal arrangements or give guarantees in addition to the contents of the written contract.
- Any illustrations, drawings, calculations, plans or other documents remain our property and copyright. This applies in particular to those marked confidential. These may only be given to a third party on the express permission of the owner.
- We are entitled to make partial deliveries on the condition that this does not inconvenience the purchaser to any great extent.
§ 3 Production Details from Purchaser
The purchaser is obliged to give the supplier a comprehensive and detailed account of the conditions under which the supplied goods are to be used.
§ 4 Prices and Payment
- If not otherwise stated on the Order Confirmation, all prices are understood "Free Daun", therefore without packing, transport or insurance. These costs shall be charged separately.
- All prices are given in the indicated currency. VAT is not included in our prices and will be charged separately according to the current legal level on the day of invoicing.
- 3Changes in price, in particular adjustments due to an increase in the cost of raw materials, power and wages are only admissible when an interval of more than 6 weeks occurs between signing the contract and the promised delivery date. In this case, the prices valid on the day of delivery to us shall apply.
- Our invoices must be paid within 30 days of invoice date without deductions and free of bank charges. Payments made within 14 days of the invoice date are subject to a 2% discount on the condition that payment is received within this time and that all due payments are made at the same time.
- Partial deliveries will be invoiced separately. Partial deliveries are subject to special payment terms.
- If a purchaser does not pay punctually, we are obliged to charge 8 percent points over the basic rate of interest. The level of interest shall depend on the supplier proving that he suffers a higher damage by default than the purchaser. If the supplier can prove a higher damage by default, he may demand a higher rate of interest.
- Drafts and cheques are only accepted on account of performance, but are not regarded as a special agreement for the fulfillment of the obligation. Our demand is not satisfied until the day the funds, remitted by the purchaser as payment, are at our disposal without fear of return debit. The purchaser shall be charged with any costs for encashment, discount or draft. Interest charges must also be paid by the purchaser and are due for immediate payment.
- The purchaser is only entitled to charge when his counterclaims are legally established as final and absolute, indisputable or have been acknowledged by us. The purchaser is only allowed to withhold payment when his counterclaim is related to the contract.
§ 5 Delivery Terms
- Information about delivery dates is non-binding unless, as an exception, a "binding" delivery date is given.
- The delivery time commences on the date of the order confirmation, however, not before the purchaser has procured the necessary documents, permits, release forms, on receipt of an agreed down-payment or the opening of the required Letter of Credit or proof that the promised securities has been given.
- QT shall have kept the promised delivery time when the goods leave their works within the specified time.
- In the case of unforeseen circumstances that are beyond our control and despite all efforts to overcome these circumstances, irrespective of whether they occur in our works or in a sub-contractor's works, such as force majeure (i.e. war or natural catastrophe), delays in the delivery of essential raw materials or other unprecedented circumstances beyond our control, we have the right to cancel the contract either in part or as a whole or to extend the delivery time until the adverse circumstances have been overcome. This also applies to strikes or lock-outs in our works or in our suppliers' or contractors' works. Our customers will be informed immediately of any such occurrence.
- In the case of a delay in delivery, the purchaser can withdraw from a non-productive delivery time after an appropriate interval (i.e. at least 30 days, or 2 months for a non-standard item). Compensation claims (including any consequential damage) are excluded irrespective of Paragraph 6. The same applies to the reimbursement of expenses.
- The disclaimer in paragraph 5 does not apply if agreed that full or limited liability if excluded for any damage causing fatal injury or health hazards when caused by intentional or accidental breach or neglect of duty by the user or his official representative or assistant. Neither does this apply to any other damage that may be caused by intentional or accidental breach or neglect of duty by the user, his representative or assistant when it has been agreed that full or partial liability are excluded. If we disregard an essential part of the contract or a "Cardinal duty", the liability is not excluded. In this case it is restricted to a typical characteristic, predictable damage relating to the prevailing contract. The same applies to the above-mentioned compensation of expenses.
- If, in commercial terms, a "firm deal" has been agreed upon the liability limitations in paragraphs 5 and 6 do not apply if the purchaser can prove to us that due to a delay in delivery, he has no further interest in the fulfillment of the contract.
- In the case of "Call orders", the calls must be made in sufficient time to allow us to manufacture and deliver the goods in an orderly manner, therefore, at least 6 weeks before the desired delivery date. Call orders must be called up within 12 months of placing the order unless some other fixed date has been arranged. If the goods are not called up, either completely or partially, within 12 months from ordering or to an agreed release date, the purchaser is regarded as defaulting acceptance.
- If the purchaser defaults acceptance or breaches his obligation to co-operate, we are entitled to demand reimbursement for any damage that arises from this delay, including extra costs. In this case the purchaser is also responsible for any loss or deterioration of the goods during the time in which he defaults acceptance.
§ 6 Passing of Risk - Packing Costs
- The risk is passed to the purchaser when he collects the goods. The same applies when the goods are put into the forwarding agent's hands to be delivered to the purchaser. When we deliver the goods, the risk is passed to the purchaser once the goods leave our works.
The purchaser may not refuse to take delivery of the goods in spite of any serious damage.
If the delivery is delayed due to unforeseen circumstances beyond our control, the risk is passed to the purchaser when he is advised that the goods are ready for delivery.
Packaging for transport or any other kind of packaging will not be taken back, with the exception of pallets. The purchaser is obliged to dispose of the packaging materials at his own cost.
If the purchaser wishes, the goods can be insured for transport. The purchaser will be charged with the insurance costs.
§ 7 Warranty Terms
We are responsible to any faults of the delivered goods when they have been duly examined on the purchaser's site and the requirement has been met to make a complaint in respect of a defect immediately on receipt of the goods, as per § 377 of the German Commercial Code, by the purchaser as follows:
- Complaints about material defects become null and void one year after delivery of the purchased goods. This does not apply if a longer term is legally specified as per §§ 438 Sections 1, no 2 (buildings and building items), § 479 section 1 (recourse action) and § 634 a section 1, no 2 (building faults) German Civil Code, also in cases of fatal injury or physical or health hazards caused by us and by deceitful concealment of a fault. The legal regulations for the suspension of statute of limitations and restart of the terms remain unchanged.
- If a fault is found on the purchased goods, we have the right to repair the fault or to deliver replacements without fault (supplementary performance). If one or both of these methods of supplementary performance are impossible or disproportional, we have the right to refuse the supplementary performance. We have the right to refuse the supplementary performance as long as the purchaser does not fulfill his duty of payment to the full for the faultless part of the delivery.
- If the supplementary performance in paragraph 2 turns out to be impossible or has failed, the purchaser has the choice - irrespective of any claim to reimbursement as per § 9 - either to reduce the purchase price or to cancel the contract according to the legal regulations. This applies in particular when the supplier delays or refuses the supplementary performance or when it fails a second time.
- 4. Refer to § 9 entitled Other Compensation Claims for information on compensation claims. All other claims i.e. more extensive ones or ones that differ from those described in this paragraph, lodged by the purchaser against the supplier and his assistant, shall be excluded.
- The above-mentioned regulations also apply to the delivery of other items or smaller quantities.
- Claims for compensation on the grounds of defects do not apply when the defect constitutes a minor deviation from the ordered specifications, with only a minor restriction in the use of the goods, on the ground of natural wear and tear or damage done after the risk has been passed to the purchaser and due to incorrect or careless handling, excessive loading or external influences not assumed in the contract. If the purchaser makes improper modifications or repairs, he may not claim any compensation for the consequences.
- Any claims made by the purchaser for costs in connection with the supplementary performance, such as the cost of transport, travelling, work time and materials are excluded when the costs are increased because the delivered goods have been moved another location other than the purchaser's plant unless it was originally intended for that purpose.
- Recourse action by the purchaser against the supplier, as per § 478 of the German Civil Code (industrial recourse action), is only applicable when the purchaser has made special arrangements with the supplier that exceed the legal requirements for compensation claims. The volume of the recourse action taken by the purchaser against the supplier, as per § 478 section 2 German Civil Code, is further described in no. 7 corresponding to § 8 dealing with liability for auxiliary duties.
If it is the supplier's fault that by delivering an incomplete or faulty execution; failing to instruct and advise the purchaser properly either before or after the contract was signed; or by neglecting other auxiliary duties in the contract, the delivered goods are damaged to such an extent that they are unusable, §§ 7 und 9 shall apply, irrespective of any other compensation the purchaser shall claim.
§ 9 Purchaser's Withdrawal and other Claims for Compensation
- The following regulations apply to neglect of duty and are not included in the liability for faults clause and shall neither exclude nor restrict the legal right to withdraw from the contract. We reserve all the legal and contractual rights due to us without restriction or exclusion.
- The purchaser may withdraw from the contract when it becomes evident that the whole service from the supplier becomes impossible. The same applies to the inability of the supplier to deliver the goods. The purchaser may withdraw from the contract when the order consists of a number of identical items that cannot be delivered at the same time and he refuses a partial delivery. If this is not the case, the purchaser has the right to limit the service in return. The right to withdrawal does not apply in the case of serious neglect of duty.
- When a delay occurs in providing the contracted service, the purchaser shall give the supplier the opportunity to explain the reason for the delay and sufficient time to provide the service. If the service is provided within the given time, the purchaser has the right to cancel the contract. If the purchaser demands a different execution of the goods prior to delivery, the delivery time shall be interrupted until both parties have agreed on the new execution and a new delivery time has been agreed.
- The purchaser does not have the right to cancel the contract if he is solely or mainly responsible for the reason for the contract being rightfully cancelled or if the reason for cancelling the contract occurs when the purchaser is in default of acceptance. If it is impossible to deliver the goods we reserve the right to claim the return service from the purchaser according to the requirements of § 326 II of the German Civil Code.
- Compensation claims from the purchaser for damages and expenditure (termed compensation claims in the following text) irrespective of the legal ground, in particular due to neglect of contractual obligation or other legal or criminal liability are excluded. This applies especially to damage beyond the purchased item as well as for the claim to compensate for lost profit. This also includes any claims that do not arise from the deficiency of the purchased item.
- This does not apply if liability is compulsory by law, i.e. According to the product liability act, in the case of intent and gross negligence on the grounds of endangering life, body or health and breach of contract. The compensation claim in lieu of neglect of contractual duty or "Cardinal duty" is limited to the typical amount of damage assumed to result from this type of contract, unless caused by intent or gross negligence and resulting in fatal injury, physical danger or health hazard. Changing the evidence to the disadvantage of the purchaser is not related to the preceding arrangement.
- If the purchaser is entitled to claim compensation according to this paragraph, his rights shall expire at the end of the limitation period for defect claims as per § 7 no. 1. The legal period of limitation applies to claims for compensation, as laid down by the product liability act.
§ 10 The Reservation of Proprietary Rights
- We reserve the proprietary rights to the purchased goods until all payments in the contract have been received and future demands met that arise from the business relationship. When payment is made by cheque/draft, full payment is only made when the purchaser cashes the draft and not just the cheque.
- If the purchaser breaches the contract, in particular by holding back payment, we have the right to take back the ordered goods; the purchaser must agree to give back the ordered item even at this stage. By taking back the ordered item, we do not automatically cancel the contract unless expressly stated. Any costs arising from the return of the ordered goods, such as transport costs, shall be charged to the purchaser. The purchaser is not allowed to resell the goods or make any modifications to same, as we reserve the proprietary rights. The purchaser shall also revoke the collection authorization as per §10 Section 5. The purchaser cannot demand the return oft he ordered goods until full payment has been made, including all extra costs.
- The purchaser is obliged to look after the ordered goods, under our proprietary rights, and to insure them at the original value them against fire, water and theft at his own cost. Furthermore, the purchaser must carry out any maintenance and inspection work in a timely manner at his own cost.
- The purchaser must notify us immediately in writing of imminent seizure or other intervention by a third party, involving the goods in our possession. If the third party is not in a position to repay the "in and out of court" costs for the lawsuit as per § 771 German Code of Civil Procedure, the purchaser shall reimburse us accordingly.
- The purchaser has the right to resell the ordered goods that are under proprietary rights in the normal course of business unless he has delayed or stopped payment. He shall transfer to us all his rights towards his buyer, as well as auxiliary rights, securities and proprietary rights, in particular the accounts receivable on his final commercial invoice including VAT. The rights arising from a resale of the equipment to a third party shall be transferred to us irrespective of whether the goods have been processed before being resold. The purchaser is entitled to collect this debt from his buyer even after relinquishing the goods. This does not affect our right to collect this debt ourselves. We shall not collect these funds as long as the purchaser honours his financial commitments, arising from revenues accrued and does not default payment, does not file for insolvency and does not become bankrupt. In this case, we have the right to demand that the purchaser informs us of the payment due from his buyer and gives us the name of his buyer, gives us all the details for the collection of the debt and hands over all the relevant documents and informs the third party that the transaction has been transferred to us. The collection authorization can be revoked by the purchaser at breach of contract (in particular due to default of payment).
- Any processing or modications made to the purchased goods by the buyer is carried out on our behalf. If the purchased goods are processed with other objects that are not supplied by us, we automatically become partial owners of the newly processed item at an equivalent value of the purchased goods, in proportion to the other processed items at the time of processing. The same terms and conditions apply to the processed object as to the purchased goods supplied under proviso.
- If the purchased goods are integrated with other articles not belonging to us, to such an extent that they are inseparable, we automatically become partial owners of the new object to the value of the goods purchased from us at the time of integration. If the purchased equipment remains the main part of the new object, despite it being integrated, it is agreed that the purchaser should give us a proportional part of the new equipment. The purchaser shall protect our property accordingly, as a whole or in part.
- We are obliged to release the securities in our possession at the purchaser's request if the value of the securities exceeds the value of the new outstanding amounts by more than 20%. We shall select the securities for release as we see fit.
- By enforcing our proprietary rights when payment is in jeopardy or default, or when the delivered goods are seized, the contract is automatically cancelled.
§ 11 Securities required for Deliveries abroad
- If the ordered goods are to be sent to a foreign country, the purchaser is obliged to make sure that the proprietary rights, as described above, are applicable in the country of destination and to find out what measures have to be taken to ensure that these rights or similar rights can be enforced. The purchaser must inform us accordingly and take the measures at his own cost.
- If the law in the country of destination does not allow the supplier to exercise the German proprietary rights to the supplied goods, as described above, but allows the supplier other proprietary rights to the supplied goods, we shall not relinquish these rights but shall exercise the rights according to the law of that country. If the laws of that country do not guarantee equivalent rights for the supplier of the goods, the purchaser is obliged to procure other securities for the delivered goods.
§ 12 Place of Fulfillment, Place of Jurisdiction and Choice of Law
- If the order confirmation does not state otherwise, the place of fulfillment is our business location.
- Place of jurisdiction for all conflicts arising from the contract is Daun. However, we also have the right to file a suit at the purchaser's business location.
- The business connection is subject to the law of the German Federal Republic. The UN purchase rights (CISG) are expressly excluded. We declare that all data received in connection with the business connection with the purchaser or about the purchaser shall be treated confidentially according the German data protection laws.
General Purchase Conditions of the Quarztechnik Daun GmbH
§ 1 General Area of Application
- Our purchasing terms prevail exclusively. We do not recognize conflicting or deviant conditions issued by the supplier unless we have agreed in writing to abide by their conditions. Our purchasing terms still prevail although we are aware of the fact that the supplier's conditions contradict or deviate from our own.
- Our purchasing terms prevail exclusively over all other contractors.
- All agreements reached between our suppliers and ourselves in connection with the execution of this contract have to be made in writing.
- Our purchasing terms also apply to future business transactions with the supplier even when they are not expressly involved.
§ 2 Quotation Documents
- The supplier is obliged to accept our order within 14 days unless some other term has been arranged individually.
- All illustrations, drawings and other documents are our property and to which we have the copyright. These documents may not be passed to a third party without our express approval. These documents are to be used solely fort he execution of our order and must be treated confidentially. The information therein may not to be imparted to a third party. Additionally the regulation stated in § 9 Abs. 4 applies here.
§ 3 Prices and Payment Terms
- The prices in the supplier's quotation are binding.
- The official VAT is included in the final price but must be shown separately.
- Unless otherwise agreed in writing, we shall pay within 14 days from delivery and receipt of invoice with a discount of 3% or within 60 days from receipt of invoice.
- We have the right to set-off and withhold payment to the full legal extent.
§ 4 Delivery Time
- The delivery time stated on the order is binding.
- The supplier is obliged to inform us immediately when circumstances are imminent or occur as a result of which the delivery time cannot be held good.
- In the case of a delay in delivery, we have the right to demand compensation in a lump sum of 1.5% of the value of the delivery for each full week of delay. However, this lump sum may not exceed 10% of the value of the ordered goods. The supplier has the right to prove that little or no damage has been caused by the delay. We reserve the right to exercise further legal or contractual rights by claiming compensation for breach of contract.
§ 5 Passing of Risk - Documents
- Unless otherwise agreed, the ordered goods shall be delivered from door to door or free house.
- The supplier is obliged to state our order number on all shipping documents and delivery notes. Should he fail to do so, we shall not be made responsible for any delays in the processing of the order.
§ 6 The Inspection for Defects - Guarantee Terms
- We do not have the obligation to complain according to § 377 German Commercial Code HGB. However, we are obliged to conduct a superficial check of the delivered goods against the delivery note to determine any transport damage.
- The supplier is obliged to check and test the ordered goods before they leave his works, in accordance with our quality control agreement.
- We are entitled to all legal rights in respect of liability for any established defects. In particular we have the right to demand that the defects are rectified or that the goods are replaced by items without any defects. The supplier must bear all the costs involved. Furthermore, we have the right to sue for full and unlimited compensation.
- The full legal unabridged liability for defects and expiry periods shall apply.
§ 7 Product Liability-Exemption-Third-party Liability Insurance
- If the supplier is responsible for a product defects, he is obliged to ensure that we are exempt from compensation claims made by a third party since the cause of the fault is located in his domain and organization, hence he is liable in relation to the outside world.
- Within the scope of his liability for damages, the supplier is also obliged to reimburse all expenditure involved in a recall campaign, as long as the claim does not arise out of §§ 830, 840 German Civil Code in connection with §§ 426, 254 German Civil Code.
- If we use the faulty delivered goods for some other purpose than originally intended, we have the right to claim damages from the supplier as per § 478 German Civil Code with the exception that the supplier offers us compensation equivalent to the damages in advance to the claim.
- The supplier is obliged to take out third party liability insurance for the product with coverage of five million Euros per damage to persons/objects - lump sum. This does not affect any other claims for damages that we may make.
§ 8 Property Rights
- The supplier guarantees that his delivery does not infringe any rights of a third party in Germany.
- If a claim is filed against us by a third party, the supplier is obliged is release us from this claim on receipt of our first written request. We do not have the right to come to any agreement with the third party without the approval of the supplier and particularly not to make a settlement.
- The supplier's duty to indemnify shall include all costs that necessarily arise in connection with a third party's claim.
§ 9 Proprietary Rights - Provision of Tools - Confidentiality
- We reserve the proprietary rights to all parts that we order from the supplier. The processing and modification of parts will be carried out by the supplier on our behalf. If the parts, belonging to us, are integrated into a new object, we immediately become the partial owners of the new object in the proportion of the value of our parts (purchase price with VAT) at the time of processing.
- If the parts we have provided are installed into other parts to such an extent that they are inseparable, we shall automatically become the partial owners of the new item to the value of our property (purchase price and VAT) at the time of installation. If the supplier's parts represent the main part oft he new item, then it is agreed that the supplier shall pass on the partial ownership of the new item and shall protect our part of the new installation accordingly.
- We exercise proprietary rights for all tools. The supplier is obliged to use the tools solely for the purpose of manufacturing the ordered goods. The supplier is obliged to insure at original value all the tools that belong to us against damage through fire, water or theft. At the same time, the supplier shall transfer to us all the compensation claims of this insurance. We hereby accept the transfer of the insurance claims. The supplier is obliged to conduct all the necessary inspection and maintenance work on our tools and to carry out any repairs and servicing that is required in a timely fashion and at his own cost. He must notify us immediately of any disturbances. If he fails to notify us, all compensation claims shall remain unchanged.
- The supplier is obliged to treat all illustrations, drawing, calculations, documents and other information confidentially. These may only be revealed to a third party on our express approval. The commitment to confidentiality still applies when the validity of the contract has expired. This clause becomes null and void when the illustrations, drawings, calculations and other documents, in respect of know-how, have been made public knowledge.
- If the security interest, due to us as per paragraph 1 and/or paragraph 2, exceeds the purchase price of all unpaid pretention to title products by more than 20%, we shall be obliged to relinquish the security interest at the supplier's request as we see fit.
§ 10 Place of Performance - Place of Jurisdiction - Applicable Law
- Place of performance for all our duties (especially for our payments) is Daun.
- Place of jurisdiction for all claims is Daun. However, we also have the right to file a claim at the supplier's place of business.
- The legal relationship between the parties is subject to German Law. The application of UN purchase rights (CISG) is expressly excluded.