GTC

General terms and conditions of payment and delivery

Scope of application 1. These conditions of sale apply with respect to contractors, legal persons under public law and special funds under public law. Our deliveries and services are carried out exclusively on the basis of the following terms and conditions. Terms and conditions issued by a partner that have not been expressly recognised by us, have no validity. General provisions 2. Our offers are subject to alteration. Oral agreements, promises, assurances, and guarantees made by our employees in connection with the concluding of this contract become binding only once confirmed in writing by us. The contracting parties will confirm any oral agreements immediately in detail in writing. 3. Order become binding only once we have confirmed the contract, subject to the agreement of Hermes Versicherungs AG. 4. The information and diagrams contained in brochures and catalogues are the approximate values customary in the industry, unless they have been expressly described as binding by us. Long-term and call-off contracts, price adjustment 5. Open-ended contracts may be cancelled subject to 3 months’ notice. 6. In the event that a significant change occurs to the labour, material or energy costs in a long-term contract (contracts with a term of more than 5 months and open-ended contracts) each contracting party is entitled to request an appropriate price adjustment taking these factors into account. 7. In the event that a binding order quantity is not agreed, we will use the non-binding order quantity expected by the partner for a specific time period (target quantity) as a basis. In the event that the partner takes less than the target quantity, we are entitled to increase the unit price appropriately. In the event that it takes more than the unit price, we will decrease the unit price appropriately, provided that the partner has given notice of the increased requirement at least 2 months before delivery. 8. In the case of call-off delivery contracts, unless otherwise agreed, we must be informed of the binding quantities at least 2 months before the delivery deadline. Additional costs due to delayed call-off or subsequent changes to the call-off regarding times or quantities caused by our partner will be borne by the partner; our own calculation is binding in this case. Confidentiality 9. Each contracting will use all documents (including prototypes, models and data) and information, received during the course of business relations, solely for the mutually pursued purposes and keep them secret from third parties with the same care as its own documents and information, when the other contracting party has designated them as confidential or has an obvious interest in their confidentiality. This obligation begins when the documents or information is first received and ends 36 months after the business relationship has ended. 10. The obligation does not apply to documents and information that are generally known or which were already known to the contracting party at the moment of reception, without the partner being committed to confidentiality, or which are subsequently transferred by a third party entitled to pass them on or which were developed by the receiving contracting partner without use of the documents or information to be kept secret belonging to the other contracting party. Drawings and descriptions 11. In the event that a contracting partner makes other drawings or technical documents relating to the goods to be delivered or their manufacturing available, these remain the property of the providing contractor. Models and manufacturing equipment 12. The manufacturing costs for models and manufacturing equipment (tools, moulds, templates etc.) will, unless otherwise agreed, be invoiced separately from the goods to be delivered. This also applies to manufacturing equipment that must be replaced due to wear and tear. 13. The costs for the maintenance, proper storage of, and risk of damage or destruction to, the manufacturing equipment will be borne by us. 14. If, during the production period of the models or manufacturing equipment, the collaboration is suspended or terminated by the partner, all of the manufacturing costs will be borne by it. 15. Even if it was paid for by the partner, the manufacturing equipment remains in our possession at least until completion of the delivery contract. The partner is subsequently entitled to reclaim the manufacturing equipment, if a consensual arrangement has been reached concerning the date of surrender and the partner has fully performed its contractual obligations 16. We store the manufacturing equipment free of charge for three years after the last delivery is made to our partner. We then ask our partner in writing to inform us within 6 weeks regarding their subsequent use. Our storage obligation is terminated if no instructions are received within 6 weeks or if no new order is placed. 17. Any customer-related manufacturing equipment may only be used by us for delivery to third parties with the prior written agreement of our partner. Prices 18. Our prices are in euros, excluding sales tax, packaging, freight, postage and insurance. Terms of payment 19. All invoices must be paid within 30 days of the invoice date. If payment is made within 10 days after the invoice date we grant a 2% discount. 20. In the event that we have indisputably supplied partially defective goods, our partner is nevertheless obliged to make payment for the defect-free portion, unless the partial delivery is of no use to it. Apart from this, the partner can only offset with legally effective or undisputed counterclaims. 21. In the event that the payment deadline is not met, we are entitled to charge default interest at a rate equal to that which the bank charges us for current account overdrafts, but not less than a rate equal to 8 percentage points above the current base interest rate of the European Central Bank. 22. In the event that payment is delayed, and after the partner has been informed in writing, we will be entitled to cease performance of our obligations until the payments are received. 23. Bills of exchange and cheques will only be accepted on agreement and only on account of performance and on condition of their discountability. Discount charges are calculated from the due date of the invoiced amount. A guarantee for the presentation of bills of exchange and cheques at the proper time and for lodging a bill protest is excluded. 24. In the event that it becomes apparent after the contract has been concluded that our payment claim is at risk due to the partner’s inability to pay, we will be entitled to refuse performance and to impose an appropriate deadline on the partner within which it must concurrently pay or provide security against delivery. In the event of refusal by the partner, or if the deadline expires unfulfilled, we are entitled to withdraw from the contract and to claim damages. Delivery 25. Unless otherwise agreed, we deliver “ex works”. Notification of dispatch or readiness for collection by us is considered decisive for compliance with the delivery date or period. 26. The delivery period begins when our order confirmation is sent and is extended accordingly when the conditions stated in Item 55 obtain. 27. Part deliveries are permissible to a reasonable extent. They are invoiced separately. 28. Production-related excess and short deliveries are permitted within a tolerance of 10 percent of the total order quantity. The total price will be altered accordingly in proportion to the amount. Dispatch and passing of risk 29. Good that has been notified as ready must be taken by the partner immediately. Otherwise, we will be entitled to send them at our own discretion or store them at the partner’s own risk and expense. 30. Unless specifically agreed, the means of transportation and transport route will be selected by us. 31. On transfer to the railway, carrier or freight forwarder or at the beginning of storage, no later however than leaving the factory or warehouse, the risk is transferred to the partner, even in the event that we have undertaken to carry out the delivery. Delayed delivery 32. If we are able to anticipate that the goods will not be delivered within the delivery period, we will inform the partner of this immediately in writing, stating the reason, and where possible stipulating the anticipated delivery date. 33. In the event that the delivery is delayed due to circumstances listed in Item 55 or an action or default of the partner, an extension of the delivery period appropriate to the circumstances will be granted. 34. The partner is only entitled to withdraw from the contract in the event that we are responsible for non-compliance with the delivery deadline and it has unsuccessfully set an appropriate additional deadline for us. Retention of title 35. We reserve ownership of the delivered goods until all claims arising from the business relationship with the partner have been settled. 36. The partner is entitled to sell these goods in the ordinary course of business, provided that it fulfils its obligations towards us arising from the business relationship in due time. It may not, however, pawn the goods subject to retention of title or transfer them as security. It is obliged to ensure that our rights are protected in the event of a credited resale of the goods subject to retention of title. Until payment of all claims arising from the business relationship including any possible refinancing or return bills, all goods supplied by us remain our property, and may only be sold in the course of lawfully conducted business. 37. In the event of a breach of obligation committed by the partner, especially in the case of delayed payment, we are entitled after unsuccessful expiration of a deadline set for the partner to withdraw from the contract and recover the goods; the legal provisions concerning the dispensability of setting a deadline remain unaffected. The partner is obliged to return the goods. We are entitled to withdraw from the contract if an application for opening insolvency proceedings for the partner’s assets has been made. 38. The partner transfers to us as security all claims and rights, for which we have right of ownership, arising from the sale or any rental of goods for which the partner has been granted authorisation, with immediate effect. We hereby accept the transfer of these claims and rights. 39. The partner always carries out any handling or processing of goods subject to retention of title on our behalf. In the event that the goods subject to retention of title are processed or inseparably mixed with items that do not belong to us, we will acquire joint ownership of the new item in the proportion of the invoice value of the goods subject to retention of title to the other processed or mixed items at the time of processing or mixing. In the event that our goods are inseparably mixed or combined with other moveable goods, creating a single unit, such that one of the other items is viewed as the main item, the partner will transfer joint ownership to us, insofar as the main item belongs to it. The partner will store the property or joint property on our behalf. The same conditions apply to the item arising from processing, combination or mixing as to the goods subject to retention of title. 40. In the event of any compulsory enforcement measures carried out by third parties in relation to the goods subject to retention of title, claims assigned to us or other securities, the partner must provide us immediately with all the documents necessary for a joinder. This also applies to impairments of any other kind. 41. In the event that the value of the existing securities exceeds the secured claims by more than 20 percent in total, we will to that extent be obliged if requested by the partner to release securities at our discretion. Material defects 42. The nature of the goods is determined exclusively by the agreed technical delivery specifications. In the event that we must deliver in accordance with drawings, specifications, models etc. provided by our partner, the latter takes over the risk associated with suitability for the intended use. The time that the risk is transferred is decisive when determining the contractual condition of the goods in accordance with Item 31. 43. In the case of material defects, arising due to unsuitable or improper use, incorrect assembly or commissioning by the partner or third parties, normal wear and tear, incorrect or negligent treatment by the partner or third parties, nor for the consequences of improper changes or repair work carried out without our approval by the partner or third party. The same conditions apply to defects causing only a minor reduction in the value or suitability of the goods. 44. Guarantee claims expire in 12 months. This does not apply insofar as the law prescribes longer mandatory deadlines, especially for defects in a building and goods that have been used in a building according to their customary use and have caused defects in its construction. 45. In the event that acceptance of the goods or first article inspection has been agreed, any complaints regarding defects that should have been determined by the partner during the course of carrying out careful inspection or first article inspection. 46. We must be given opportunity to check the defect about which complaint has been made. The goods for which the complaint is being made must be returned to us immediately on request; we will bear the transport costs in the event that the defect complaint is justified. In the event that the partner fails to meet these obligations or carries out modifications to the goods about which complaint has already been made without our permission, it will lose any guarantee claims. 47. In the event that a complaint regarding a defect is made in accordance with the deadline, we will at our discretion repair the goods about which complaint has been made or supply defect-free replacements. 48. If we fail to fulfil these obligations or do not fulfil them in accordance with the contract, within an appropriate time period, the partner may set a final deadline for us in writing within which we must fulfil our obligations. After unsuccessful expiration of this deadline, the partner is entitled to request a price reduction, withdraw from the contract or carry out the necessary subsequent improvement work itself or commission a third party to do it at our expense and risk. Reimbursement of costs is excluded, insofar as expenses increase because the goods were moved to another location after our deliveries had taken place, unless this is in accordance with the intended use of the goods. 49. The legal rights of recourse of the partner against us exist only insofar as the partner has not concluded any agreements with its customer beyond the legal claims for defects. In addition, Item 48, last sentence, applies accordingly to the scope of the recourse claims. Other claims, liability 50. Unless other issues arise in the following, any other claims or claims of greater scope made by the partner against us are excluded. This applies in particular to claims for damages owing to the breach of obligations arising from the debt obligation and unauthorised actions. We are therefore not liable for damages that did not occur to the delivered goods themselves. Above all we are not liable for lost profits or other financial losses incurred by the partner. 51. The above-mentioned limitations of liability do not apply in cases of intent, gross negligence on the part of our legal representatives or senior employees or in the event of a culpable breach of fundamental contractual obligations. In the event of a culpable breach of fundamental contractual obligations, except in the case of deliberate acts or gross negligence, we will only accept liability for our legal representatives or senior employees for reasonably foreseeable damage that is typical of the contract. 52. The limitation of liability also does not apply in cases in which we are liable under the German Product Liability Law if there are defects in the goods delivered for which liability exists for personal injury or material damage to privately used items. It also does not apply in the event of injury to life, body or health and in the absence of warranted qualities, if and insofar as the object of the guarantee was to protect the partner against damage not arising from the delivered goods themselves. 53. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, associates, legal representatives and agents. 54. The statutory provisions regarding the burden of proof remain unaffected by this. Force majeure 55. Force majeure, industrial action, riots, official action, failure of our suppliers to deliver and any other unforeseeable, unavoidable and serious events release the contracting party from its obligation to perform for the duration of the disruption and to the extent of their effect. This also applies if these events occur at a time when the contracting party affected is in default, unless it has caused the delay deliberately or due to gross negligence. The contracting parties are obliged, within reasonable limits, to supply the necessary information and to adapt their obligations to the altered circumstances in good faith. Place of fulfilment, place of jurisdiction and applicable law 56. Unless otherwise indicated in the order confirmation, our registered office will be the place of performance. 57. Our registered office will be the place of jurisdiction for all legal disputes, including in any proceedings involving bills of exchange and cheques. We are also entitled to bring an action at the partner’s registered office. 58. This contractual relationship is governed solely by the law of the Federal Republic of Germany. The use of the United Nations Convention of 11 April 1980 on the International Sale of Goods (CISG, “Vienna Purchasing Law”) is excluded. Version: November 2002