1. Contract Conclusion and
a) Offers made by us will not be binding unless specified
differently in an order confirmation or in an express written
declaration made by us. A contract may be regarded as
established only after we have issued a written confirmation
or begun executing it.
b) Unless expressly designated as binding, any information
quoted in prospectuses and catalogues, including photographs,
drawings, weights, and measures will be approximations in
conformance with common practice in the industry.
c) We reserve all proprietary rights in photographs,
prospectuses, cost estimates, and other documents.
Documentation may not be disclosed to third persons. This
holds particularly true for written documents expressly marked
as "Confidential", which may not be disclosed to third persons
without our express written consent.
2. Prices; Terms of Payment
a) Our prices will be quoted ex works, plus packaging, freight,
postage, insurance, and VAT at the current rate, if not agreed
b) In the event of any material change occurring in
order-related costs after a contract has been concluded,
parties will agree on an adjustment.
c) In the absence of agreements to the contrary, our invoices
shall be paid promptly and in full.
d) Customer shall be entitled to withhold or offset payments
against any claims which Customer may have only to the extent
justified by undisputed or legally enforceable claims.
e) If any of the articles delivered by us should prove
defective, Customer shall nevertheless be obligated to pay for
any articles that are indisputably free from defects unless
the resultant incomplete consignment should be of no interest.
f) If expressly agreed in writing beforehand, we will accept
discountable taxed bills in lieu of payment. Bills and cheques
will be credited to Customer subject to collection, minus any
expenditures, on the day on which the remittance becomes
available to us.
g) Should we be obligated to make advance deliveries, and
should we become aware after a contract has been concluded
that payment of our claims is endangered by lack of funds on
the part of Customer, we will, in addition to asserting our
lawful claims based on our right to retain ownership in the
products delivered laid down in Art. 9, prohibit Customer from
selling or processing the goods delivered, demand that either
the goods themselves or indirect possession of them be
returned to us at the expense of Customer, and cancel any
direct debit transfer provided that the conditions named in
Art. 9 Par. h) apply. In such cases, Customer hereby
providentially grants permission for us to enter its premises
and retrieve the goods delivered by us. Repossession of goods
will be equivalent to the cancellation of the relevant
contract only if so stated by us.
h) After due written notice, we will be entitled to suspend
the execution of a contract in the event of payment delays
until payment has been received. After setting a reasonable
time limit for compliance, we will be entitled to withdraw
from the contract in such an instance.
3. Delivery Terms
a) Starting from the date of our order confirmation, the term
of delivery will begin only after all issues relating to the
execution of the contract have been clarified and any other
conditions to be met by Customer have been complied with;
mutatis mutandis the same holds true for delivery deadlines.
Deliveries in advance of set deadlines and partial deliveries
shall be admissible unless this is not acceptable to Customer.
The date of delivery shall be the day on which a consignment
is reported ready for shipment or, alternatively, the day on
which it is shipped. In the absence of agreements and
contractual specifications to the contrary, any delivery
schedules quoted by us shall not be binding.
b) Without prejudice to our rights relating to any delay in
performance on the part of Customer, the dates and terms named
in agreed delivery schedules shall be deferred and/or extended
for as long as Customer fails to fulfil its obligations. In
the event of Customer failing to accept delivery or culpably
failing to fulfil any obligation to co-operate, we shall be
entitled to claim compensation for any resultant loss
including unscheduled expenditures. In such instances,
liability for any risk of accidental destruction or damage of
the consignment in question shall pass to Customer from the
point in time at which Customer fails to accept delivery.
c) In the event of any default on our part, Customer may grant
a reasonable respite, expressly stating at the same time that
acceptance of the goods or services to be delivered will be
rejected after the expiry of said term, after which Customer
shall be entitled to withdraw from the contract.
d) At our request, Customer shall be obligated to state within
a reasonable term whether it is intended to withdraw from the
contract because of the delay in delivery and/or to claim
damages in lieu of performance, or, alternatively, to insist
4. Serial Deliveries, Long-term and
a) Untermed contracts may be terminated at six months' notice
to take effect at the end of the month.
b) In the event of the cost of labour, material, or energy
changing to any material extent after the first four weeks of
a long-term contract (meaning contracts with a term of 12
months or more and untermed contracts), both partners may
demand that prices be reformulated within reasonable limits to
allow for these changes.
c) Our prices will be fixed based on agreed order volumes. In
the absence of binding agreements on order volumes, they will
be based on agreed target volumes. Should actual orders fall
short of agreed order or target volumes, we will be entitled
to increase unit prices within reasonable limits. In the event
of agreed volumes being exceeded at Customer's orders and with
our consent, Customer may demand that prices be reduced within
reasonable limits, provided that this intention is declared in
writing no less than 2 months before the agreed delivery date.
Actual price increases or decreases will be determined based
on our costing data.
d) In the absence of agreements to the contrary, Customer
shall be obligated to submit call orders under a delivery
contract no later than 3 months before the date of delivery,
precisely specifying the quantities involved. Any additional
expenses caused by delays in order placement or by subsequent
changes by Customer in the timing or quantity specified in the
call-up shall be borne by Customer in the amount invoiced by
e) In serial-delivery contracts, increasing or decreasing
deliveries by as much as 10% above or below the volume
originally ordered shall be admissible in view of the special
features of the manufacturing process.
f) Overall prices will change to reflect total quantities.
5. Force Majeure; Other Obstacles
a) In the event of force majeure, industrial disputes,
lockouts, or official interventions, we shall be entitled to
defer delivery while such obstructions persist as well as for
a reasonable start-up time afterward; alternatively, we may
withdraw from the relevant contract in whole or in part
because of such partial default.
b) Similar to force majeure, unforeseen circumstances such as,
for instance, production disruptions, rejects, and rework may
make it impossible for us to deliver on time despite all
reasonable efforts; any such occurrence will be documented by
6. Inspection; Acceptance
a) In the event of an acceptance test having been agreed upon,
the scope and conditions of such a test shall be defined by
the time a contract is concluded.
b) In the absence of such an agreement, the acceptance test
will be conducted within the scope and under the conditions
commonly applied by us. The same applies to initial sample
7. Dimensions, Weights, Volumes
a) Dimension, weight, and volume nonconformances shall be
admissible within the limits set by customary tolerances,
relevant DIN regulations, and the technical parameters of the
manufacturing process. Any specifications of weights and
dimensions made in our quotations and order confirmations do
not constitute quality guarantees.
b) Invoices will be made out based on weights and quantities
established by us.
8. Shipment; Passage of Risk
a) In the absence of written agreements to the contrary, all
deliveries will be made 'ex works' (Incoterms 2000), even if
we have undertaken to bear the cost of transport.
b) We will take out transport insurance for deliveries only at
Customer's express request; any related expenses will be borne
c) Consignments reported ready for shipment shall be accepted
immediately; should this not be the case, we may at our
discretion either ship such consignments immediately or put
them into storage at Customer's expense and risk, at normal
haulage industry rates. The last-named option will be open to
us even if it should prove impossible to ship a consignment in
conformance with our obligations through no fault of our own.
Consignments shall be deemed to have been delivered one week
after they have been stored in a warehouse.
d) In the absence of specific instructions, transport media
and transport routes will be chosen by us at our discretion.
e) Even if we have undertaken to handle the transport of a
consignment, the associated risks will pass to Customer when
it is handed over to a railway or haulage or forwarding
company and/or one week after it has been first stored in a
warehouse or, at the very latest, when it leaves our premises
or the storage facility.
9. Reservation of Ownership
a) All goods delivered will remain our property (conditional
goods) until all claims resulting from the business
relationship in question have been settled, including
especially any claims outstanding from previous transactions.
The above also applies to payments made to settle specifically
In the event of Customer's payments being delayed, we may
demand the return of any goods delivered at Customer's expense.
The above shall not apply, however, in the event of insolvency
proceedings having been filed or opened against Customer, in
which instance we would not be entitled to the immediate
return of our goods.
b) Any repossession of goods and/or assertion of our right of
ownership does not imply our withdrawal from the contract in
question, unless such withdrawal is explicitly declared by us.
c) Customer will process any goods supplied in our name only.
In the event of conditional goods being integrated in a
product together with other goods, we thereby acquire a share
in the products thus generated in proportion to the invoice
value of our goods relative to the invoice value of the other
objects included in the product at the time of manufacture.
d) In the event of our right of ownership expiring because the
goods delivered have been amalgamated or blended with others,
Customer hereby agrees providentially to transfer to us his
right of ownership in the newly-generated article in
proportion to the invoice value of our conditional goods, and
to keep said articles safe for us without charge. The articles
in which we thus may acquire rights of co-ownership shall be
regarded as conditional goods within the meaning of Par. a).
e) Customer may sell conditional goods only in the normal
course of business, provided that customer is not in default
with any payments, and provided that titles in any claims
resulting from such resale is transferred to us in conformance
with Par. f) and g). Customer shall not be entitled to dispose
of conditional goods in any other way.
f) Customer providentially agrees to assign any claims from
such resale of conditional goods to us.
Such claims may be used as collateral to the same extent as
g) In the event of conditional goods being sold by Customer
together with other goods not supplied by us, any claims from
such resale shall be assigned to us only in the amount of the
invoice value of the conditional goods actually sold. Should
goods be sold in which we retain a share in conformance with
Par. b), claims shall be assigned in proportion to the value
of said share.
h) Customer shall be entitled to collect any amounts
outstanding from sales under Par. e) and f) unless and until
we raise an objection. In the cases enumerated in Art. 2, we
shall be entitled to object to such collection if any payments
due from Customer are delayed, insolvency proceedings have
been instituted against Customer, or Customer has suspended
payment. In these cases, Customer shall without further delay
inform us about any assigned claims and their debtors,
including all details necessary for collection, hand over all
relevant documents, and inform debtors about the assignment of
the amounts due from them. Customer shall not be entitled to
dispose of such claims in any other way.
i) If the value of the collateral should exceed the total
value of the relevant claims by more than 20%, we shall be
obligated to release certain portions of the collateral at our
discretion. Customer shall report immediately any case of
collateral being impounded or otherwise distrained by third
10. Liability for Defects
a) We hereby warrant that any components supplied by us will
be free from defects as defined in any engineering
specifications included in the contract by reference. It will
be Customer's responsibility to ensure that products are
properly designed, that relevant safety regulations are
observed, that test procedures are properly selected, and that
engineering specifications and the engineering documents and
drawings handed over to us are free from errors and omissions,
particularly with regard to their intended use. Furthermore,
Customer shall be responsible for the serviceability of any
manufacturing equipment provided, even in the event of any
modifications proposed by us being implemented with Customer's
approval. Lastly, Customer hereby warrants that no proprietary
or other rights held by third persons will be infringed by
Customer's information. Product conformability with
contractual requirements shall be definitely established at
the time of risk passage.
b) We will not be liable for inconsiderable nonconformances
with agreed workmanship requirements, inconsiderable
impairment of a product's fitness for use, or any defects
arising through unsuitable or inexpert treatment, faulty
assembly and/or commissioning, or the effect of natural wear
and tear. In the event of products being inexpertly
manipulated or repaired either by Customer or by third persons,
we will not be liable for any of the defects named above nor
for their resultant consequences.
c) Customer shall give written notice of any obvious defects
immediately after goods have been received at their
destination, while hidden defects shall be reported
immediately after their discovery.
d) Any agreement on acceptance or initial sample inspections
as per Art. 6 automatically precludes subsequent complaints
about defects that might have been detected in such
e) We must be given an opportunity to verify any defects
reported by Customer. In urgent cases, i.e. whenever the
operational safety of the product is in jeopardy, or Customer
is threatened by extensive harm, any defects claimed shall be
verified by us without delay. Any defective goods shall be
returned to us immediately on request. Should Customer fail to
comply with these obligations, or should any goods previously
reported as defective be modified by Customer in any way,
Customer's right to claim damages for defects shall be
f) Having verified a defect reported on time, we may, at our
discretion, either repair the products in question or supply
replacements that are free from defects.
g) Should we fail to comply with our warranty obligations
either entirely or within a reasonable time, or should our
repair efforts remain unsuccessful for the time being,
Customer may as a last resort set a term of grace for us to
comply with our obligations. Setting a term of grace may be
omitted if it should prove unacceptable to Customer. After the
term has expired without avail, Customer may, at his
discretion, opt to demand a price reduction, to withdraw from
the contract, to have the products repaired in-house, or to
commission a third party to effect the necessary repairs at
our own cost and risk. Once repairs have been effected
successfully either by Customer or a third party, Customer
shall not be entitled to any further claims once relevant
expenditures have been reimbursed by us.
h) Any claims by Customer regarding the reimbursement of
expenditures arising in conjunction with the repair of defects
because the products in question have to be transported to
another location shall be inadmissible inasmuch as the
expenditure total will be increased thereby, unless said
transport is conformable with the contractual use of the
i) Customer's claims for indemnification against us shall be
admissible only inasmuch as no agreement extending the legal
scope of indemnification has been made between Customer and
the original equipment manufacturer.
j) As provided in Art. 13, no further liability will be
k) Customer shall be responsible for demonstrating the
presence of a defect.
11. Order-related Manufacturing
Equipment; Cast-in Parts
a) Order-related manufacturing equipment, including without
limitation patterns, templates, core boxes, moulds, injection
tools, rigs, and gauges provided by Customer shall be shipped
to us free of charge. We will inspect any manufacturing
equipment supplied by Customer for compliance with contractual
specifications, drawings or patterns only if this has been
expressly agreed. Manufacturing equipment provided by Customer
may be modified by us if this appears necessary for technical
reasons, and if no product modification is entailed.
b) Customer shall bear the expense of modifying, servicing,
and replacing such manufacturing equipment.
c) Manufacturing equipment provided by Customer will be
treated and kept by us with the same care we apply to our own
equipment. We will not be liable, however, for accidental
destruction or deterioration of such equipment. Any
manufacturing equipment provided by Customer that is no longer
required by us we may either return to Customer at Customer's
expense and risk or, if Customer fails to respond to our
request to retrieve such equipment within a reasonable term,
retain such equipment for a reasonable period of time at
Customer's expense and destroy it after due written notice.
d) Order-related manufacturing equipment made or procured by
us at Customer's request will remain our property even after
the cost has been invoiced pro rata. Such equipment will be
retained by us for a period of 3 years after the last casting
has been made.
If it has been agreed that, departing from Par. 1, said
equipment should become the property of Customer, the latter
will assume ownership of said equipment as soon as the agreed
price and/or share in the first cost has been paid. In this
case, our obligation to keep said equipment safe will stand in
lieu of a formal transfer. In the absence of good and
sufficient reasons to the contrary, Customer may terminate
this safekeeping agreement no earlier than two years after the
transfer of ownership.
e) Customer may make claims relating to copyright or
proprietary rights only if we have been previously notified by
Customer of the existence of such rights, and if such rights
have been expressly reserved by Customer.
f) In the event of rejects appearing in the output of a piece
of manufacturing equipment that can only be used once,
Customer shall either provide a replacement or assume the cost
of its procurement.
a) Both parties agree to use any and all documents (including
without limitation patterns, samples, and data) and knowhow
resulting from their business relationship only and
exclusively in pursuit of the common purpose. Whenever a party
designates any information as confidential or shows an
apparent interest in keeping such information secret, the
other party shall be obligated to exercise the same caution as
it would exercise in keeping its own documents and knowhow
b) The above obligation shall enter into force on the date on
which said documentation or knowhow is first disclosed,
terminating 36 months after the end of the business
13. Limitation of Liability
a) Without prejudice to any provisions to the contrary laid
down in the following, we hereby disclaim liability for any
claims Customer may make against us for whatever legal reason,
particularly claims relating to the non-performance of
obligations and to unlawful acts.
b) The above limitation shall not apply whenever liability is
mandatory, e.g. in cases falling under the Product Liability
Act, in cases of wilful or gross negligence on the part of our
statutory representatives or executives, or in cases of
culpable non-performance of major contractual obligations.
Except in cases of wilful or gross negligence on the part of
our statutory representatives and executives, we shall be
liable for culpable non-performance of major contractual
obligations only inasmuch as the resultant damage is typical
of the contract in question and foreseeable within reason.
This limitation of liability is not applicable to any life,
body, or health injuries nor to quality defects whenever the
relevant guarantee aims to protect Customer from damage to
some object other than the goods delivered.
c) Any liability exemptions and limitations shall equally
apply to personal claims against our employees, associates,
statutory representatives, and agents.
d) Any claims for compensation for damages and defects to
which Customer may be entitled will expire one year after the
resultant products have been delivered to the buyer. This
provision does not apply in cases where the law prescribes
longer terms such as Art. 438 Sub-paragraph 1.2 BGB (buildings
and objects commonly used in buildings) and Art. 479 Par. 1
BGB (indemnification claims); In cases involving injury to
life, body, or health; in cases of wilful or gross negligence
on the part of the supplier; and in cases of malicious silence
with regard to a defect. Any legal regulations covering the
suspension and recommencement of terms shall remain unaffected
by the above. Claims for damages under the Product Liability
Act shall be covered by the statute of limitations. The same
holds true for cases of wilful and gross negligence.
14. Place of Fulfilment and Jurisdiction
a) The place of jurisdiction for contracts concluded with an
independent business shall be Herbertingen, Germany. As an
alternative, we may institute proceedings against Customer at
the court of its business location.
b) Unless shown differently in an order confirmation, the
place of fulfilment for our part of the contract shall be the
location of our production facilities. The place of fulfilment
for any payments due shall be Herbertingen, Germany.
15. Governing Law
All contractual relations between the parties to this contract
shall be interpreted solely under the laws of the Federal
Republic of Germany, any application of the UN Convention on
Contracts for the International Sale of Goods (UNCITRAL/CISG)
being expressly excluded.
In the event of one or more of the provisions of these Terms
and Conditions of Payment and Delivery being or becoming
unenforceable or void in whole or in part, both parties hereby
undertake to agree on a provision which comes as close as
possible to the meaning and purpose of the provision that has
become unenforceable or void.
Any amount paid in compensation, particularly in damages,
should be determinedbona fide in consideration of the economic
situation of both parties, the nature, scope, and duration of
the business relationship, and the value of the goods involved.