General Business Conditions
Hartlauer Präzisions Elektronik GmbH
- hereinafter referred to as Supplier
I. General clauses and scope
1. The mutual written declarations govern the scope of deliveries or services (hereinafter called Deliveries). All the terms agreed between the supplier and the ordering party / purchaser for the execution of the contract have been finalized and put down in writing in this contract and in the corresponding General Business Conditions.
2. The given sales conditions shall apply exclusively. Other conflicting General Business Conditions or General Business Conditions deviating from those put forth by the purchaser shall apply only if the supplier expressly approves the same in writing. These sales conditions shall also apply if the supplier makes the deliveries without any reservations, fully aware of the conflicting conditions and conditions of the purchaser deviating from these sales conditions.
3. These sales conditions shall only apply to companies defined under § 310 section 1 BGB.
4. These General Business Conditions shall also apply to all the future transactions that will be executed with the purchaser.
II. Conclusion of contract and documents
1. Upon a corresponding request from the purchaser, the supplier shall submit a quotation / offer, which can be accepted by the former within a period of 3 months from the quotation date. At the end of this term, this offer is no longer binding for the supplier.
2. The supplier shall retain the copyright as well as any patent and property rights on bids, images, drawings, calculations and other documents (hereinafter: documents).The documents can be made available to third parties only with the prior express and written approval of the supplier; the purchaser shall return the documents immediately if the order is not awarded to the supplier.
III. Prices and payment terms
1. The prices are valid ex-factory, exclusive of the packing, plus the legally applicable VAT as applicable on the day of invoicing. A separate invoice will be submitted for the packing. The supplier reserves the right to change his prices correspondingly following cost reductions or increase in costs after the conclusion of the contract, particularly as a result of wage settlements or changes in the material prices. This has to be proofed if the purchaser wishes so.
2. If, after the conclusion of the contract, the consignment of goods does not comprise of standard components and if, as a result, the overall costs increase, the supplier shall have the right to adjust his prices accordingly, provided that he is not responsible for this change in the prices. If the purchaser does not accept these changed prices within 2 weeks after the notification by the supplier, the supplier shall have the right to withdraw from the contract.
3. Unless specified otherwise in the order confirmation, the purchase price shall be payable within 30 days from the date of invoice. Under such circumstances, the legal rules and regulations for default of payment shall be applicable.
4. Payments shall be made without any deductions and free of transaction charges to the seller’s designated account(s). A separate clause must be agreed to in writing for the deduction of a discount.
5. The purchaser can only settle receivables that are legally ascertained, undisputed or acknowledged by the supplier. The purchaser may exercise a lien on goods only if his counterclaim is based on the same contractual relationship. There is no provision for a cession of the purchaser’s claims arising from the contracts concluded with the supplier.
6. As regards the incoming payments, the accrued interests and costs are offset first and then the respective oldest receivables. Any conflicting instructions of the purchaser for clearing the payments shall not be binding upon the supplier.
IV. Delivery, delivery terms, default
1. The delivery deadlines specified by the supplier are shipping / dispatch dates and shall apply as a specification of the service period in accordance with the calendar, if these have been confirmed expressly in writing (fixed deadlines) by the supplier. In all the remaining cases, the purchaser must set a reasonable grace period in the event of delayed delivery.
2. Pre-requisites for the compliance with the delivery dates are – on-time receipt of all the documents to be submitted by the purchaser, acquisition of all the required approvals and releases, of plans in particular as well as compliance with the agreed payment terms and other obligations on part of the purchaser. If these pre-requisites are not fulfilled on time, the terms shall also extend accordingly; this shall not be applicable if the supplier is responsible for the delay.
3. If the delivery terms cannot be observed as a result of acts of nature, e.g. mobilisation, war, revolt or other similar events such as strikes, lock-outs etc., the delivery terms shall extend reasonably.
4. In the event of delayed delivery on part of the supplier, the purchaser can demand a compensation for damages (provided he can satisfactorily show that he has suffered damages) amounting to 0.5% of the price of that part of the consignment, which could not be commissioned and made serviceable owing to the delay, for every completed week of delay, whereby the maximum compensation shall not exceed 5% of this price.
5. Damage compensation claims of the purchaser following delayed delivery as well as damage compensation claims in place of services that go beyond the limits specified under pt. 4, are excluded for all types of delayed deliveries, even after the expiry of a delivery term set for the supplier. This shall not be applicable in case of criminal intent, gross negligence or injury to life or health, which calls for compulsory assumption of liability. The purchaser may withdraw from the contract within the scope of the legal requirements, only if the supplier is responsible for the delayed delivery. The aforementioned rules and regulations do not imply a shift in the onus of proof to the disadvantage of the purchaser.
6. Upon a request from the supplier, the purchaser shall declare (within a reasonable period of time) whether he will withdraw from the contract due to the delayed delivery or accept the delivery.
7. If the delay in the acceptance of the delivery exceeds more than one month after the purchaser shows the readiness for dispatch, the purchaser can be charged warehouse rent amounting to 0.5% of the price of the goods to be delivered, however not more than 5% of this price, for every new month. The parties to the contract are at a liberty to show proof of higher or lower storage costs.
8. The supplier can make part deliveries, if these do not lead to an unacceptable curtailment of his interests in the process of execution of the contract.
V. Shipping conditions, transfer of risk, packing costs
1. Unless specified otherwise in the order confirmation, the delivery shall take place “ex-works”, as agreed.
2. If it has been agreed that the purchaser shall pick up the goods, the risk of accidental destruction and degradation of the goods shall be transferred to the purchaser with the notification that the goods are ready for pickup. This transfer of risk to the purchaser shall also take place for carriage paid deliveries without installation or assembly at the time of dispatch or pickup of the goods. If the purchaser wishes, the supplier will insure the goods against the usual transportation risks at the cost of the former.
3. If there is a delay in the dispatch, installation or acceptance in the in-house operations or trial operations due to reasons for which the purchaser is responsible or if the purchaser causes delay in accepting the delivery on some other grounds, the risk shall be transferred to the purchaser.
4. Packing costs, particularly rentals and charges for wear-out and disposal of the packing material as well as the costs for returning the packing material shall be borne by the purchaser. Transport packaging and all other packaging as defined under the packaging ordinance, with the exception of pallets, cannot be returned. The purchaser shall dispose off the packing at his own costs.
VI. Acceptance
The purchaser cannot refuse to accept the deliveries on grounds of insignificant defects.
VII. Retention of title, compulsory insurance coverage, third party seizures / attachments
1. The delivered objects (goods subject to reservation of title) shall remain the property of the supplier until the fulfilment of all his claims against the purchaser arising from his business relationship with the purchaser.
2. As long as the supplier retains the ownership of the delivered goods, the purchaser cannot pledge the object of sale or assign it as security. The customer is authorised to resell the object of sale in the usual transactions, however only under the condition that the reseller receives payment from his customer or puts forth the condition that the ownership of the object of sale shall be transferred to the customer only after he fulfils his payment obligations.
3. The purchaser may convert the object of sale or link or mix it with other objects. The conversion, linking or mixing (hereinafter collectively referred to as: “conversion” and with respect to the object of sale: “converted”) shall take place for the supplier; the object resulting from this conversion shall be termed as a “new product / commodity”. The purchaser shall preserve the new commodity for the supplier with utmost care, just like an orderly businessman.
While converting the object of sale with other objects not belonging to the supplier, the supplier shall have the joint ownership of the new commodity in proportion with the share as per the ratio of the value of the converted, mixed or linked object of delivery to the value of the converted goods at the time of conversion. If the purchaser acquires the sole ownership of the new commodity, the supplier and purchaser agree that the purchaser shall grant the supplier the joint ownership of the new commodity as per the ratio of the value of the converted object of delivery to the remaining converted goods at the time of the conversion.
4. In the event of sale of the delivered object or the new commodity, the purchaser shall assign his claim against the customer arising from the resale, along with all the auxiliary rights, by way of security to the supplier, whereby no special declarations may be necessary. The assignment shall also apply to balance receivables, if any. However, the assignment of claim shall only apply to the amount corresponding to the price of the delivered object invoiced by the supplier. The share of receivables assigned to the supplier must be settled on a priority basis.
5. At this time, the purchaser shall assign to the supplier all the receivables, which he has accrued from the resale to his customer or third party, corresponding to the final invoice amount (amount of all receivables / invoices), inclusive of the VAT, irrespective of whether the object of sale was resold before or after conversion. The supplier shall accept the assignment. The purchaser shall have the right to collect / recover this receivable even after the assignment. This shall not affect the authority of the supplier to collect the receivables himself. However, the supplier cannot collect the receivables if the purchaser is fulfilling his payment obligations towards the supplier arising from the collected revenues, is making payments on time and if no request for initiating bankruptcy / insolvency proceedings has been filed either by the purchaser himself or by a third party. In the latter case (request for initiating bankruptcy / insolvency proceedings), the supplier can ask the purchaser to disclose the assigned receivables and the respective liable parties and to notify the latter (third parties) of the assignment in writing within the legally defined term and also show proof of this notification. If the purchaser fails to fulfil these terms within the specified period, the supplier can inform the concerned parties himself and demand direct payment immediately.
6. While furnishing prima facie evidence for a justified interest, the purchaser shall provide the supplier all the information required for asserting his rights against the customer and also hand over the required documents.
7. The purchaser shall inform the supplier immediately of any confiscations, seizures or other court orders/actions by third parties so that the supplier can file a suit in conformance with § 771 ZPO. If the third party is not in a position to reimburse the legal and out-of-court (extrajudicial) costs of a lawsuit as defined under § 771 ZPO to the supplier, the purchaser shall also assume the liability for the incurred loss.
8. If the value of all the security interests at the disposal of the supplier against the purchaser exceeds the amount of all the secured claims by more than 10%, the supplier shall release a corresponding part of the security interests upon a request from the purchaser. The choice of the security interests to be released is incumbent upon the supplier. The release obligation shall not be applicable only if the overcollateralisation is of a permanent nature.
9. If the purchaser acts contrary to the terms and conditions of the contract, particularly if he is in default of payment, the supplier can withdraw from the contract and take back the object of sale if the purchaser fails to fulfil these obligations even after the expiry of a reasonable term. The legal clauses pertaining to the expendability of a term shall remain unaffected.
10. The purchaser shall handle the object of sale carefully and shall insure it sufficiently at the replacement value against fire, water and theft at his own cost.
VIII. Quality defects, limitation of liability, statute of limitation
The supplier shall assume the liability for quality defects in the following manner:
1. The supplier shall, at his discretion, improve upon all those parts or services (free of cost), which are found to be defective within the statutory period of limitation (regardless of the operating period), deliver them again or (in case of services) offer new services, unless the cause of defect was existent at the time of transfer of risk. First, the supplier must be given the opportunity to improve upon the goods / services within a reasonable period of time.
2. If the subsequent improvement also fails, the purchaser can either demand withdrawal or mitigation (as per his wish), regardless of any damage compensation claims as mentioned under Art. XI.
3. Claims for quality defects shall be valid for only 12 months. However, this shall not be applicable if the law prescribes longer terms under §§ 438 section 1, no. 2, 479 section 1 and 634 a section 1 no. 2 BGB and also in the event of injury to life, health or physical injuries, in the event of a deliberate or grossly negligent violation of the obligations towards the supplier or fraudulent concealment of a defect. The legal rules and regulations for suspension of the expiry, suspension and restart of the terms shall remain unaffected.
4. The purchaser shall lodge a complaint about quality defects with the supplier immediately in writing.
5. When a notification of defects is sent, the purchaser may hold back a reasonable part of the payment proportionate to the detected quality defects. The purchaser may hold back the payments only if a notification of defects has been enforced and there is no doubt about its authorisation. If the notice of defects is not justified, the supplier can demand a compensation of the expenses incurred from the purchaser.
6. The purchaser cannot claim damages in the event of a slight deviation from the agreed state of the goods, a slight curtailment of the usability, natural wear or damages caused after the transfer of risk resulting from faulty or negligent handling, excessive stress, inappropriate operating material or specific external influences that are not governed by this contract. If the purchaser or a third party makes inappropriate changes or undertakes improper overhauling measures (not conforming to the specifications), the purchaser cannot claim damages for the consequences resulting therefrom.
7. Claims raised by the purchaser for the expenses incurred during the supplementary performance, particularly transportation and travel costs, labour and material costs, will not be valid if these are incurred because the delivered object is subsequently transferred to a location other than the purchaser’s plant, unless the purchaser undertakes an appropriate use of the object even during this process.
8. The purchaser can exercise his right of recourse against the supplier in conformance with § 478 BGB (recourse action of the entrepreneur) only if he has not entered into any agreements with his customer that go beyond the legal right to claim damages for any defects. Pt. 7 shall apply correspondingly for the scope of the right of recourse that the purchaser can exercise against the supplier as per § 478 section 2 BGB.
9. Art. XI shall apply for all other damages compensation claims. All claims of the purchaser against the supplier and his auxiliary persons other than those regulated in this article shall not be valid.
IX. Industrial property rights and copyrights; defects of title
1. Unless agreed otherwise, the supplier shall make the delivery only in the country, in which the delivery site is located, free from industrial property rights and copyrights of third parties (hereinafter: industrial property rights).If a third party raises claims against the purchaser following the violation of industrial property rights resulting from a contract-specific usage of the objects delivered by the supplier and if these claims are justified, the supplier shall assume liability for the purchaser within the term specified in Art. XIII. 3. The details of the liability are given below:
a) The supplier shall, at his will and at his own costs, either obtain a right of use on the delivered objects in question and modify these in such a way that the industrial property right is not violated or replace the delivered objects. If the supplier is unable to execute these measures under reasonable conditions, the purchaser can exercise his right to withdrawal or mitigation.
b) The supplier’s obligation for the compensation of damages is defined in Art. XI.
c) The aforementioned obligations of the supplier shall apply only as far as the purchaser notifies the supplier immediately in writing of the claims raised by the third party, does not acknowledge a violation and if the supplier reserves the right to take counter-measures and undertake settlement negotiations. If the purchaser discontinues the use of the delivered object as a result of mitigation of damages or on any other important grounds, he shall make it clear to the third party that the end of use of the object implies that he shall not acknowledge the claimed violation of the industrial property right.
2. The purchaser’s claims shall not be valid if he himself is responsible for the violation of the industrial property right.
3. Furthermore, the purchaser’s claims shall not be valid if the violation of the industrial property right has resulted from the observation of special guidelines put forth by the purchaser or a use of the delivered object not foreseen by the supplier or is the result of changes made by the purchaser to the object delivered by the supplier or use of the delivered object with other products not delivered by the supplier.
4. Clauses in Art. VIII. 1, sentence 2, 5 and 8 shall apply correspondingly for the claims raised by the purchaser as per no. 1a) following the violation of industrial property rights.
5. The clauses in Art. VIII shall apply correspondingly for all other defects of title.
6. All other claims of the purchaser or claims other than those mentioned in Article IX against the supplier and his auxiliary persons resulting from defects of title are excluded.
X. Impossibility of performance; adaptation of contract
1. If the supplier cannot make the delivery, the purchaser shall have the right to demand compensation for damages unless the supplier is not responsible for the same. However, the damage compensation claim of the purchaser shall be restricted to 10% of the value of that part of the consignment, which could not be commissioned and made serviceable due to the non-delivery. This limitation shall not apply in the event of deliberate act, gross negligence, fatal or physical injuries or damage to health, whereby the supplier assumes compulsory liability; the onus of proof cannot be shifted to the disadvantage of the purchaser. The purchaser’s right to withdraw from the contract shall remain unaffected.
2. If unpredicted events take place as mentioned under Art. IV 3, which considerably affect / change the commercial significance or contents of the consignment or considerably affect the supplier’s operations, the contract shall be amended / adapted accordingly in a reasonable manner in good faith. If this is not economically justifiable, the supplier shall have the right to withdraw from the contract. If the supplier wishes to exercise the right of withdrawal, he shall inform the purchaser immediately after assessing the consequences of the occurred event, even when an extension of the delivery period has been initially agreed upon with the purchaser.
XI. Other damage compensation claims
1. Damage and cost compensation claims of the purchaser (hereinafter damage compensation claims), particularly resulting from the breach of obligations and unapproved actions, irrespective of any legal grounds whatsoever, are excluded.
2. However, this shall not be applicable in the event of compulsory liability, e.g. as prescribed by the Product Liability Law, criminal intent, gross negligence, fatal and physical injuries, damage to health and breach of important contractual obligations. However, the damage compensation claim for the breach of important contractual obligations is limited to the predictable damages defined in the contract, provided that there is no criminal intent or gross negligence and no compulsory liability has been prescribed due to fatal and physical injuries and damage to health. The aforementioned rules and regulations do not imply a shift in the onus of proof to the disadvantage of the purchaser.
3. If the purchaser can raise damage compensation claims as per this article, these shall expire with the expiry of the statutory period of limitation applicable for the quality defect claims as defined in Article VIII. 3. The legal statute of limitations shall apply for damage compensation claims as defined by the Product Liability Law.
XII. Court of competent jurisdiction, applicable law, place of fulfilment
1. If the purchaser is simultaneously a trader, all the disputes directly or indirectly arising from the contractual relationship shall be solely settled in a Court of competent jurisdiction at the head office of the supplier, which is currently at Grassau. However, the supplier has the right to sue the purchaser at his place of general jurisdiction.
2. The legal relationships arising from this contract shall be solely governed by the German Law; the UN CISG (Convention on the International Sale of Goods) is not applicable.
3. Unless specified otherwise in the order confirmation, the business location of the supplier is simultaneously also the place of fulfilment.
XIII. Severability clause
Although individual clauses of this contract become legally ineffective, the remaining contract along with the prevailing General Business Conditions shall remain binding. However, this clause shall not apply if any one party finds it unacceptable to continue with the contractual relationship. The clause that is rendered wholly or partially ineffective shall be primarily replaced with the corresponding regulation in the “General delivery conditions for products and services in the electrical industry” as prescribed by the Zentralverband Elektrotechnik- und Elektroindustrie e.V. (ZVEI) in its applicable version. All other clauses that become wholly or partially ineffective shall be replaced with another regulation that comes closest to fulfilling the commercial purpose of the former clause.
Status: Grassau, August 2007