Terms and conditions
Terms of delivery for precision tools
I. General Information
1. All deliveries and services are based on these terms and conditions and any separate contractual agreements. Deviating terms and conditions of purchase of the buyer shall not become part of the contract even upon acceptance of the order.
In the absence of a special agreement, a contract is concluded with the supplier’s written order confirmation.
2. The supplier reserves the right to retain samples, cost estimates, drawings and the like, information whether of physical or non-physical nature – also in electronic form – property rights and copyrights; they may not be made accessible to third parties. The Supplier undertakes to make information and documents designated as confidential by the Purchaser available to third parties only with the Purchaser’s consent.
3. Samples are only supplied against payment.
4. Verbal collateral agreements do not exist. Amendments must be made in writing.
II. Price and payment
1. In the absence of a special agreement, the prices apply ex works including loading in the factory, but excluding packaging and unloading. The sales tax in the respective statutory amount is added to the prices.
2. In the absence of a special agreement, payment is to be made immediately after delivery and without any deduction to the Supplier’s account. The respective delivery quantity is charged.
3. The Purchaser is only entitled to withhold payments insofar as his counterclaims are undisputed or have been legally established.
4. The Purchaser’s right to offset counterclaims from other legal relationships only applies to the extent that they are undisputed or have been legally established.
III. Delivery time, delays in delivery
1. The delivery time results from the agreements of the contracting parties. Their compliance by the Supplier presupposes that all commercial and technical questions between the contracting parties have been resolved and that the Purchaser has met all his obligations, e.g. has provided the required official certificates or permits or has made an advanced payment. If this is not the case, the delivery time will be extended accordingly. This does not apply if the Supplier is responsible for the delay.
2. Compliance with the delivery time is subject to correct and timely delivery. The Supplier will report any anticipated delays as soon as possible.
3. The delivery time is met if the delivery item has left the Supplier’s factory by the end of its expiry or readiness for dispatch has been reported. If an acceptance has to take place, – the acceptance date is decisive, except in the case of justified refusal – of acceptance; alternatively, the notification of readiness for acceptance.
4. If the dispatch or the acceptance of the delivery item is delayed for reasons for which the Purchaser is responsible, he will be charged the costs incurred due to the delay, starting with one month after notification of the dispatch or acceptance. If the dispatch is delayed at the request of the Purchaser, the Supplier is entitled to otherwise dispose of the delivery item after the setting and fruitless expiry of a reasonable period and to supply the Purchaser with a reasonably extended period.
5. If the non-compliance with the delivery time is due to force majeure, industrial disputes or other events that are beyond the influence of the Supplier, the delivery time will be extended accordingly. The Supplier will inform the Purchaser of the start and end of such circumstances as soon as possible.
6. The Purchaser can withdraw from the contract without setting a deadline if the Supplier is unable to perform the entire service before the transfer of risk. The Purchaser can also withdraw from the contract if it is impossible to carry out part of the delivery when placing an order and if he has a legitimate interest in rejecting the partial delivery. If this is not the case, the Purchaser has to pay the contractual price for the partial delivery. The same applies in case of inability of the Supplier to perform. Otherwise, Section VIII.2. applies. If the impossibility or inability occurs during the delay in acceptance or if the Purchaser is solely or largely responsible for these circumstances, he remains obligated to provide service in kind.
7. If the Supplier is in arrears and the Purchaser suffers damage thereof, he is entitled to demand a flat-rate compensation for delay. The compensation amounts to 0.5% for each full week of the delay, but in total not more than 5% of the value of that part of the total delivery which cannot be used in time or in accordance with the contract due to the delay. If the Purchaser sets the Supplier a reasonable deadline for performance, taking into account the statutory exceptional cases after the due date and the deadline is not met, the Purchaser is entitled to withdraw from the contract within the framework of the statutory provisions. At the request of the Supplier, the Purchaser agrees to declare within a reasonable period whether he is exercising his right of withdrawal. Further claims from delayed delivery are determined exclusively in accordance with Section VII.2 of these terms and conditions. 2 of these conditions.
IV. Transfer of risk, acceptance
1. The risk passes to the Purchaser when the delivery item has left the factory, even if partial deliveries are made or the Supplier performs other services, If an acceptance has to take place, this is decisive for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively after the Supplier’s notification of readiness for acceptance. The Purchaser may not refuse acceptance if there is an insignificant defect.
2. If the shipment or acceptance is delayed or omitted as a result of circumstances that are not attributable to the Supplier, the risk is transferred to the Purchaser as of the day of notification of readiness for shipment or acceptance. The Supplier agrees to take out the insurance that the Purchaser requires at the Purchaser’s expense.
3. Partial deliveries are permitted insofar as this is reasonable for the Purchaser.
V. Retention of title
1. The Supplier retains ownership of the delivery item until all claims of the Supplier against the Purchaser from the business relationship, including future claims, as well as from contracts concluded at the same time or later, have been settled. This also applies if individual or all claims of the Supplier have been included in a current invoice and the balance has been drawn and recognised. If the Purchaser behaves contrary to the contract, in particular in the event of late payment, the Supplier is entitled to take back the delivery item after a reminder and the Purchaser is obligated to surrender the same. Due to the retention of title, the Supplier can only demand the delivery item if he has withdrawn from the contract. In the event of seizures or other interventions by third parties, the Purchaser must immediately notify the Supplier.
2. The Purchaser is entitled to resell the delivery item in the ordinary course of business. However, he already assigns to the Supplier all claims that arise from the resale against the Purchaser or against third parties. The Purchaser is authorised to collect these claims even after the assignment. The Supplier’s authority to collect the claims itself remains unaffected. The Supplier can then request that the Purchaser notify him of the assigned claims and their debtors, provide all the information necessary for collection, hand over the associated documents and notify the debtors of the assignment, unless the Supplier has already done so. If the delivery item is resold together with other goods that do not belong to the Supplier, the Purchaser’s claim against the buyer in the amount of the delivery price agreed between the Supplier and the Purchaser is deemed to have been assigned.
o the buyer defaults on his payment obligations to the supplier or
o it is revoked, or
o an application for the opening of insolvency proceedings has been filed.
3. The Purchaser may neither pledge the delivery item nor assign it as security.
4. The Supplier is entitled to insure the delivery item against theft, breakage, fire, water and other damages at the expense of the Purchaser, unless the Purchaser has demonstrably taken out the insurance himself.
5. If an alternate liability on the part of the Supplier is established in connection with the payment of the purchase price by the Purchaser, the retention of title, including its agreed special forms, or other collaterals agreed to secure payment will not expire not before the Purchaser redeems the change as a drawee.
VI. Claims for defects
The Supplier shall be liable for material and legal defects in the delivery, excluding further claims, subject to Section VII as follows:
1. At the Supplier’s discretion, all those parts are to be repaired or replaced free of defects, which turn out to be defective due to a circumstance prior to the transfer of risk.
The Supplier must be notified of such defects immediately in writing. Replaced parts become the property of the Supplier.
2. In order to carry out all subsequent repairs and replacement deliveries that the Supplier deems necessary, the Purchaser must grant the Supplier the necessary time and opportunity after having informed the Supplier; otherwise the Supplier is released from liability for the resulting consequences. The Purchaser is entitled to have the defect remedied by himself or through a third party and to demand reimbursement from the Supplier for the necessary expenses only in urgent cases where operational safety is endangered or to prevent disproportionate damage, whereby the Supplier must be informed immediately.
3. If the complaint proves to be justified, the supplier shall bear the expenses necessary for the purpose of subsequent performance, provided that this does not result in a disproportionate burden on the supplier. Insofar as the expenses increase due to the fact that the buyer has taken the object of purchase to a place other than the place of performance after delivery, any additional costs incurred as a result shall be borne by the buyer. When selling a newly manufactured item, the supplier shall also reimburse the expenses incurred by the buyer within the scope of his legal obligations within the scope of recourse claims in the supply chain.
4. Within the framework of the statutory provisions, the buyer has the right to withdraw from the contract if the supplier – taking into account the statutory exceptions – allows a reasonable period of time set for him for the repair or replacement delivery due to a material defect to expire. If there is only an insignificant defect, the buyer is only entitled to a reduction of the contract price. The right to reduce the contract price shall otherwise be excluded.
5. Further claims shall be determined exclusively in accordance with Section VII.2 of these terms and conditions.
6. No liability is assumed in the following cases in particular:
Unsuitable or improper use, faulty installation or commissioning by the Purchaser or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable equipment, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences unless they are the responsibility of the Supplier.
The Supplier is only liable for defects in the material supplied by the Purchaser, if he should have recognised the defects when using professional care. In the case of production according to the Purchaser’s drawing, the Supplier is only liable for the execution according to the drawing.
a. If special tools are ordered, the order quantity may be exceeded or undercut by 10%, but at least by 2 pieces.
7. If the Purchaser or a third party makes improper improvements, the Supplier is not liable for the resulting consequences. The same applies to changes made to the delivery item without the prior consent of the Supplier.
Defects in title
8. If the use of the delivery item leads to an infringement of industrial property rights or copyrights in Germany, the Supplier shall, at its own expense, generally procure the right of further use for the Purchaser or modify the delivery item in a manner reasonable for the Purchaser in such a way that the infringement no longer exists.
If this is not possible at economically reasonable conditions or within a reasonable period of time, the buyer is entitled to withdraw from the contract. The supplier is also entitled to withdraw from the contract under the aforementioned conditions.
In addition, the Supplier shall indemnify the Purchaser against undisputed or legally established claims of the relevant owners of property rights.
9. Subject to Section VII.2, the obligations of the supplier mentioned in Section VI.8. are final in the event of copyright infringement.
They shall only exist, if
o the customer informs the supplier immediately of asserted infringements of property rights or copyrights,
o he buyer supports the supplier to a reasonable extent in defending the asserted claims or enables the supplier to carry out the modification measures according to section VI.8,
o the supplier reserves the right to all defensive measures including out-of-court settlements,
o the defect of title is not based on an instruction of the buyer and
o the infringement of rights was not caused by the fact that the buyer has arbitrarily modified the delivery item or used it in a manner not in accordance with the contract.
10. The customer assumes sole responsibility for the documents to be provided by him, such as drawings, gauges, samples or the like. The customer shall be responsible for ensuring that any design drawings submitted by him do not infringe the property rights of third parties. The supplier is not obliged to check with the customer whether any property rights of third parties are infringed by the submission of offers based on the execution sent to him. If, nevertheless, a liability of the supplier results from facts substantiating the claim, the customer shall indemnify the supplier.
VII. Liability of the supplier, exclusion of liability
• If the delivery item cannot be used by the customer in accordance with the contract as a result of the supplier’s culpably omitted or faulty suggestions or advice made before or after conclusion of the contract or as a result of the culpable breach of other contractual secondary obligations – in particular instructions for the operation and maintenance of the delivery item – the provisions of sections VI and VII.2 shall apply to the exclusion of further claims by the customer.
• The supplier shall only be liable – for whatever legal reasons – for damage that has not occurred to the delivery item itself – only
a. in case of intent and gross negligence,
b. culpable injury to life, body, health,
c. in the case of defects which he has fraudulently concealed,
d. as part of a guarantee commitment,
e. in the case of defects in the delivery item, insofar as liability exists under the Production Liability Act for personal injury or property damage to privately used items.
In the event of culpable violation of essential contractual obligations, the supplier is also liable for gross negligence of non-executive employees and for slight negligence, in the latter case limited to reasonably foreseeable damage typical for the contract.
Further claims are excluded.
VIII. Period of limitation
All claims of the buyer – on whatever legal grounds – shall become statute-barred after 12 months; this shall also apply to the statute of limitations for recourse claims in the supply chain in accordance with § 445 b (1) BGB, provided that the last contract in this supply chain is not a purchase of consumer goods. The suspension of the statute of limitations under § 445 b para. 2 BGB remains unaffected. The statutory periods shall apply to claims for damages in accordance with Section VII.2. a-c and e. They shall also apply to defects in a building or to delivery items that have been used for a building in accordance with their normal use and have caused defects.
IX. Use of software
If software is included in the scope of delivery, the Purchaser shall be granted a non-exclusive and non-transferable right to use the software delivered including its documentation.
It is provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited.
The buyer may only copy, revise, translate or convert the software from the object code to the source code to the extent permitted by law (§§ 69 a ff. UrhG) The customer undertakes not to remove manufacturer’s details – in particular copyright notices – or to change them without the express prior consent of the supplier.
All other rights to the software and the documentation including the copies remain with the supplier or the software supplier. The granting of sublicenses is not permitted.
Applicable law, place of jurisdiction
• The law of the Federal Republic of Germany applies exclusively to all legal relationships between the Supplier and the Purchaser.
• The place of jurisdiction is the competent court for the registered office of the Supplier. However, the Supplier is entitled to file suit at the Purchaser’s registered office.
Special conditions for processing contracts, completion, reconditioning, reworking or restoration of tools.
In addition to or deviating from the delivery conditions, the following applies to processing contracts:
• The operator assumes no liability for the behaviour of the material sent to the processor. His right to remuneration remains unaffected.
• If the material becomes unusable during processing due to the fault of the processor, his entitlement to remuneration lapses.
The Purchaser’s claim for damages is based on Section VII.2 of the Terms of Delivery.