General Terms and Conditions of ElringKlinger AG
Max-Eyth-Str.2, 72581 Dettingen/Erms
General Terms and Conditions of Sale and Delivery
I. General information
- These Terms and Conditions shall be part of all contracts entered into between us and the Buyer. They shall also apply if we do not explicitly refer to them in subsequent contracts. The Buyer's General Terms and Conditions shall not apply; we hereby expressly object to said Terms and Conditions.
- Addenda and amendments to contracts and these General Terms and Conditions shall require the written form in order to be valid. This shall also apply to any amendment to the written form requirement.
II. Delivery and packaging
- Unless otherwise agreed, delivery shall be made EXW INCOTERMS (actual version).
- Unless otherwise agreed, we shall be responsible for the packaging of the delivery items. Packaging costs shall be invoiced to the Buyer.
- The delivery period shall begin on conclusion of the Contract, but not prior to the provision of any documents, permits and approvals to be furnished if necessary by the Buyer or prior to the supply of other objects or receipt of any agreed down payment.
- The delivery period shall be extended in the event of force majeure, i.e. unforeseeable events beyond our control, such as industrial disputes, including, but not limited to, strikes and lock-outs, as well as business disruptions and delays in the delivery of essential materials, insofar as such impediments affect shipment of the delivery item. This shall also apply if these circumstances occur in relation to sub-suppliers. The extension of the delivery period shall be commensurate with the duration of such measures and impediments. The aforementioned circumstances shall also be deemed to be beyond our control if they occur during an already existing delay. The Buyer shall be immediately informed of such impediments.
- If we culpably fail to comply with the delivery periods, we shall be deemed to be in default only if the Buyer requests us to deliver again, setting a reasonable time limit. Claims for compensation for damages caused by delay shall be excluded in the event of simple negligence. If the Buyer intends to rescind the Contract and to assert a claim for damages in lieu of performance, the restrictions of Clause VII.1b shall apply.
III. Scope of delivery
- The scope of delivery shall be determined by the respective contract.
- We reserve the right to make changes to the delivery item due to technological improvements or to legal requirements, providing such changes do not alter the delivery item substantially and the Buyer can reasonably be expected to accept them.
IV. Terms of payment and set-off
- Unless otherwise agreed, invoices shall be payable without deductions within 14 days of date of issue.
- The Buyer shall have a right to set-off only if its counterclaims have become res judicata or are undisputed. The Buyer shall be authorized to exercise a right of retention only insofar as its counterclaim is based on the same contractual relationship.
Where there are more than 8 weeks between contract conclusion and agreed delivery date, we shall be entitled to make corresponding price adjustments in the event of increases in material prices, wage costs or energy prices.
VI. Property rights and tools
- Cost estimates, conceptual designs, drawings and other documents shall remain our property. These documents may be made accessible to third parties only with our prior written consent.
- Where items are produced according to the Buyer's drawings, models, samples or other documents, the Buyer shall warrant that third-party property rights are not infringed.
- We shall be liable as follows for defects to delivery items:
a) For a period of 12 months from transfer of risk, the Buyer shall initially be entitled to subsequent performance (repair or replacement at our option). Should the subsequent performance be unsuccessful on at least two occasions or be disproportionate, the Buyer may rescind the Contract or reduce the purchase price.
b) Our liability as well as that of a legal representative or a performing agent shall be limited to cases of wilful intent or gross negligence. In the event of a breach of material contractual obligations, we shall be liable in accordance with the statutory provisions. Any claim for damages shall, however, be limited to damages that are typical for the Contract and foreseeable at the time the Contract is entered into. These provisions shall also extend to claims for damages in addition to performance and damages in lieu of performance, on whatever legal grounds, in particular on account of defects, the infringement of duties arising from an obligation or from a tortious act. They shall also apply in the event of claims for reimbursement of nugatory expenditure.
c) Defects caused by natural wear and tear and incorrect assembly as well as minor divergences from the agreed quality shall, in particular, but not limited, be excluded from the warranty.
- If we make deliveries based on sampling, we shall warrant only the qualitative and dimensional characteristics of the sample approved by the Buyer.
- Claims for damages arising from tort shall be excluded, unless the damages have been caused by wilful intent or gross negligence. This shall also apply to acts by our vicarious and performing agents. In the event of injury to life, limb or health as well as in the event of product liability, we shall be liable in accordance with the statutory provisions.
The Buyer's rights of recourse shall be deemed to apply only insofar as it has not entered into any agreements, with its customer, which go beyond the statutorily prescribed claims for defects.
IX. Retention of title
- We shall retain title to the delivery items until payment therefore has been made.
- In case the Buyer breaches the Contract, particularly in the case of delay in payment, we shall be entitled to demand that it surrender the delivery items and/or to rescind the Contract.
- The Buyer shall be entitled to resell the delivery items in the ordinary course of business; it shall hereby assign to us all receivables in the amount of the purchase price agreed between us and the Buyer(including value added tax) which accrue to the Buyer from the resale, irrespective of whether the delivery items are resold without or after processing. We accept the assignment. The Buyer shall be authorized to collect these receivables after their assignment. This shall not affect our authorization to collect the receivables ourselves. However, if this is the case, we are entitled to demand that the Buyer make known the assigned receivables and their debtors, provide all information necessary for the collection, submit the associated documents and inform the debtors (third parties) of the assignment.
- If the delivery items are processed or inseparably mixed with other objects that do not belong to us, we shall acquire co-ownership of the new object in proportion of the value of the delivery items to the other processed objects at the time of processing or to the other mixed objects. The Buyer shall hold the co-owned object in safe custody for us.
- The Buyer may neither pledge the delivery items nor assign them as collateral. In the event of seizures and impoundments or other dispositions by third parties as well as in the event of the institution of insolvency or composition proceedings against the Buyer´s property, it shall immediately inform us thereof and make all information and documents required for protecting our rights available to us. Enforcement officers or third parties shall be notified of our title.
- We , at the Buyer's request, undertake to release the collateral to which we are entitled to the extent that its value exceeds the receivables to be secured - providing they have not yet been settled - by more than 20%.
X. Venue and applicable law
- The venue for all disputes shall be Stuttgart/Germany. We shall also be entitled to sue the Buyer at the court of its registered office.
- The law of the Federal Republic of Germany shall apply exclusively without giving effect to the law of conflicts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
Any assignments of the Buyer's rights and obligations arising from the Contract entered into with us shall require our prior written consent in order to be valid.