Gene­ral Terms and Condi­ti­ons of Sale and Contract for Work

1. Scope of appli­ca­tion, conflic­ting purchase (order) terms and conditions

1.1. These terms and condi­ti­ons apply to all our deli­veries, work deli­veries and contract proces­sing busi­ness. They also apply to custo­mers. We object to any conflic­ting terms and condi­ti­ons of purchase or order of the custo­mer; they shall not be binding on us even if they claim exclu­sive vali­dity or are intro­du­ced in a decla­ra­tion of intent of the custo­mer subse­quent to our letter of offer or order confir­ma­tion and we do not object to them again. These terms and condi­ti­ons shall be deemed accepted by the custo­mer at the latest upon receipt of our deli­very (the order goods).

1.2. A waiver of the vali­dity of these terms and condi­ti­ons or indi­vi­dual clau­ses thereof or the reco­gni­tion of conflic­ting gene­ral terms and condi­ti­ons of the custo­mer or indi­vi­dual clau­ses thereof shall only be legally effec­tive if we have set this down in writing in our order confir­ma­tion. Even if these terms and condi­ti­ons are waived or if the customer’s terms and condi­ti­ons of purchase/order are accepted, the provi­si­ons of these terms and condi­ti­ons on reten­tion of title (Clause 8, Para­graphs 1-5), on the exclu­sion of claims in the event of inter­rup­tion of opera­ti­ons through no fault of our own and fail­ure to deli­ver (Clause 4, Para­graph 1, Sentence 2), on the appli­ca­ble law and on the place of juris­dic­tion (Clause 12, Para­graphs 1-2) shall form part of the contract, unless we have also waived them by expressly naming these clauses.

1.3. If both contrac­ting parties insist on the exclu­sive vali­dity of their Gene­ral Terms and Condi­ti­ons and if the customer’s appr­oval of these terms and condi­ti­ons cannot be infer­red from any other circum­s­tances arising from his conduct at the time of conclu­sion or perfor­mance of the tran­sac­tion or from an ongo­ing busi­ness rela­ti­onship, but if the contrac­ting parties nevert­hel­ess perform the tran­sac­tion by delivery/performance of work and services and accep­tance thereof, the contract shall be deemed to have been concluded to the exclu­sion of the Gene­ral Terms and Condi­ti­ons of both parties with the content speci­fied in our order confir­ma­tion and in the provi­si­ons of the law rela­ting to contracts for sale or contracts for work. Also in such cases, the trans­fer of owner­ship of the deli­vered goods is subject to full payment of the purchase price.

2. Writ­ten form

2.1. Inso­far as these terms and condi­ti­ons require writ­ten decla­ra­ti­ons, faxes and noti­fi­ca­ti­ons prin­ted out by EDP shall also be suffi­ci­ent for this form within the scope of what is custo­mary in the trade.

3. Conclu­sion of the contract

3.1. Our offers are always subject to confir­ma­tion; contrac­tual obli­ga­ti­ons shall only arise – even in the event of prior agree­ment of a tran­sac­tion by tele­phone – upon receipt of our writ­ten order confir­ma­tion by the custo­mer. Our sales repre­sen­ta­ti­ves are only autho­ri­zed to initiate, not to conclude contracts.

4. Deli­very time, deli­very disrup­ti­ons, partial deli­veries, trans­fer of risk

4.1. Deli­very times are stated in the order confir­ma­tion in weekly dates; they are only binding if we assure this in writing. In the event of opera­tio­nal disrup­ti­ons of any kind for which we are not respon­si­ble, as well as a lack of supply of raw mate­ri­als for which we are not respon­si­ble, the deli­very peri­ods shall be suspen­ded; if the period is excee­ded for a longer period, we and – after setting a grace period – the custo­mer shall be entit­led to with­draw from the contract. Claims for dama­ges due to late or non-deli­very or claims other than claims for return are excluded – except in cases of intent and gross negli­gence. This exclu­sion of liabi­lity does not apply to injury to life, limb or health. If design docu­ments, models, samples or the like are requi­red by the custo­mer for the execu­tion of a delivery/work order, the deli­very period shall only commence upon their receipt.

4.2. We are entit­led to make partial deli­veries. Tools remain our property in all cases, even if the custo­mer has assu­med a share of the costs. Devia­ti­ons from the orde­red quan­ti­ties are permis­si­ble up to 10% upwards and down­wards, because such devia­ti­ons cannot always be avoided for tech­ni­cal reasons. If deli­very on call is agreed, we shall be gran­ted reasonable produc­tion peri­ods from the time of the call.

4.3. The risk of acci­den­tal loss or acci­den­tal dete­rio­ra­tion of the goods deli­vered or of goods entrus­ted to us for proces­sing (finis­hing) under a contract for work and services shall pass to the addres­see – even if the trans­port is carried out by us or by forwar­ding agents commis­sio­ned by us – when the goods leave our premi­ses in Ahaus.

5. Prices, price due date, trans­port costs, payment modalities

5.1. The purchase price or compen­sa­tion for work shall be set out in our order confir­ma­tion; in the case of dome­stic tran­sac­tions, the statu­tory VAT shall always be added – even if this was over­loo­ked in the order confir­ma­tion – which we shall show sepa­ra­tely in our invoice in accordance with the requi­re­ments of § 14 UStG (Value Added Tax Act). If, outside a period of 4 months from the conclu­sion of the contract but prior to the execu­tion of the contract, statu­tory levies or fees which burden the move­ment of goods or make work perfor­man­ces more expen­sive (in parti­cu­lar VAT, customs duties, compen­sa­tion amounts, currency, freight char­ges) or tariff wages increase, we shall be entit­led to increase the price by the addi­tio­nal impu­ted costs to be proven by us; the same shall apply to the purchase of neces­sary input mate­ri­als in the case of contracts whose execu­tion or partial execu­tion is not plan­ned until 7 months after the conclu­sion of the contract.

5.2. Our prices are net prices plus the respec­tive appli­ca­ble statu­tory value added tax.

5.3. Invoices shall be due for payment without deduc­tion 30 days after the invoice date; in the event of default, we shall charge inte­rest at a rate of 2% p.a. above the respec­tive appli­ca­ble prime rate (§1DüG), at least. but 8% p.a. If we are able to prove a higher damage caused by delay, we are entit­led to claim it. Subcon­trac­ting and repair work shall be paya­ble imme­dia­tely upon receipt of the invoice (without gran­ting a discount).

5.4. Unless deli­very free buyer has been agreed, our prices do not include trans­port costs and insu­rance of the goods to be trans­por­ted, which shall be borne by the buyer. In the absence of special instruc­tions, we shall be free to choose the means of trans­port. We insure the goods only on the basis of appro­priate insu­rance poli­cies /request of the custo­mer at his expense.

5.5. Checks are accepted on account of perfor­mance, subject to their being hono­red. We are not liable – except in case of gross negli­gence – for the delayed presen­ta­tion of checks.

6. Mate­rial and proces­sing defects, obli­ga­ti­ons to give notice of defects, warranty, limi­ta­tion of liability

6.1. The custo­mer shall inspect the goods deli­vered or the goods proces­sed by us to the extent custo­mary in the trade upon their arri­val and shall imme­dia­tely – at the latest within 8 working days – notify us in writing of any mate­rial or proces­sing defects. Hidden defects must be repor­ted no later than 8 working days after the disco­very of the defect. Devia­ti­ons in quan­tity, dimen­sion and type shall also be deemed to be mate­rial defects (§ 378 HGB). Any possi­bi­lity to give notice of defects shall end at the latest upon the occur­rence of the statu­tory limi­ta­tion period for warranty claims under purchase agree­ments or contracts for work and services.

6.2. At our request, the custo­mer shall permit the inspec­tion of the goods which are the subject of the complaint and shall not make any chan­ges to them by means of further proces­sing, instal­la­tion or other opera­tio­nal use until a decis­ion has been made on the acceptance/rejection of the complaint. In the event of culpa­ble breach of these custo­mer obli­ga­ti­ons, any warranty shall lapse. In cases of doubt, the custo­mer must prove the iden­tity of the item deli­vered (proces­sed) by us with the item complai­ned about.

6.3. In the event of proven material/processing defects, we shall be entit­led, at our discre­tion, to make a repla­ce­ment deli­very, rectify the defect or issue a credit note compen­sa­ting for the redu­ced value/rectification expen­dit­ure. The custo­mer shall only be entit­led to assert other statu­tory warranty claims after a repla­ce­ment delivery/rectification has failed. If compen­sa­tion for dama­ges due to non-fulfill­ment or delayed fulfill­ment or due to posi­tive breach of contract comes into conside­ra­tion, we shall only be liable – except in the case of intent or gross negli­gence – up to the amount of the sales value of the deli­vered goods or up to three times the compen­sa­tion for work; compen­sa­tion for dama­ges that are not inher­ent to the deli­vered item or the item proces­sed by us (conse­quen­tial harm caused by a defect) shall be excluded, unless we are liable under manda­tory statu­tory provi­si­ons of product liabi­lity law. These limi­ta­ti­ons of liabi­lity do not apply to injury to life, limb or health. Indi­rect damage and conse­quen­tial damage as a result of defects in the deli­very item shall only be eligi­ble for compen­sa­tion if such damage is typi­cally to be expec­ted when using the deli­vered item as intended.

6.4. Damage to items delivered/worked on by us which are caused by unsui­ta­ble use, faulty assem­bly, impro­per commis­sio­ning by the custo­mer, natu­ral wear and tear, exces­sive stress, use of unsui­ta­ble opera­ting equipment/tools or other circum­s­tances in the customer’s sphere of opera­tion over which we have no control shall not be subject to the warranty under the purchase contract or the contract for work and services.

6.5. Bearing, dimen­sio­nal checks and resi­dual stresses/water absorption

6.5.1. Prefa­bri­ca­ted parts must not be stored outdoors. Expo­sure to sunlight, atmo­sphe­ric oxygen and humi­dity can have a lasting nega­tive effect on the mate­rial proper­ties (e.g. fading and/or oxida­tion of the surface, water absorp­tion, etc.). In the case of direct sunlight or one-sided heating, there is a risk of perma­nent distor­tion due to ther­mal expan­sion and released resi­dual inter­nal stresses.

6.5.2. Dimen­sio­nal checks are to be carried out imme­dia­tely after receipt of goods only if the products are at room tempe­ra­ture (≈+20°C) when deli­vered. Products with higher or lower tempe­ra­tures can lead to incor­rect measu­red values due to expan­sion or shrin­kage of the plas­tic as a result of tempe­ra­ture influence. Products that are too warm/cold should be tempo­r­a­rily stored in a dry place and brought to room temer­a­ture before dimen­sio­nal control.

6.5.3. Plas­tics and finis­hed parts made from them are products which, due to their manu­fac­tu­ring proces­ses, may be subject to resi­dual stres­ses in the mate­rial despite anne­al­ing. These have a tendency to relax when stored over a longer period of time under the influence of tempe­ra­ture (e.g. due to sunlight). Poly­ami­des also have the tendency to absorb water at eleva­ted humi­dity, which causes an increase in volume. These proces­ses are usually asso­cia­ted with dimen­sio­nal chan­ges and warpage. Despite the most careful manu­fac­tu­ring of the products, we cannot provide a guaran­tee with regard to the perma­nent dimen­sio­nal accu­racy and free­dom from distor­tion of finis­hed parts for the above reasons. For long-term storage of finis­hed parts, we recom­mend storing them in closed cartons under constant condi­ti­ons (≈normal climate +23°C/50% RF). The dimen­sio­nal and shape chan­ges to be expec­ted are then mini­mal and do not usually affect the func­tional performance.

7. Property assu­rance, consul­ting, mate­rial testing

7.1. Special charac­te­ristics of the object of sale shall only be warran­ted by us at the express request of the custo­mer and shall only be warran­ted if we have expressly mentio­ned this in our order confir­ma­tion. If deli­very in accordance with DIN has been agreed, this shall be deemed to be a mere speci­fi­ca­tion of quality (without warranty in accordance with sentence 1).

7.2. The exami­na­tion of the suita­bi­lity of the deli­vered or proces­sed goods for the own opera­tio­nal use or further proces­sing purpo­ses as well as the selec­tion of the quality is the sole respon­si­bi­lity of the custo­mer. Any advice or recom­men­da­ti­ons by us are made to the exclu­sion of any liabi­lity; in this respect, we do not assume any contrac­tual colla­te­ral obligations.

7.3. For claims for dama­ges by the custo­mer in the absence of warran­ted charac­te­ristics or in the event of claims arising from a breach of our obli­ga­ti­ons pursu­ant to Section 6.3, the limi­ta­ti­ons of liabi­lity set forth ther­ein shall apply.

8. Reten­tion of title

8.1. All deli­very items shall remain our property until full payment of our purchase prices (inclu­ding those arising from earlier or subse­quent tran­sac­tions) or claims for wages against the custo­mer and any ancil­lary claims (e.g. inte­rest on arre­ars, remin­der char­ges). The reten­tion of title shall also apply to claims not yet due or defer­red as well as to claims which we hold or acquire against the custo­mer on legal grounds other than a purchase/work delivery/work contract, in parti­cu­lar in the event of repla­ce­ment of the afore­men­tio­ned claims by abstract check claims. The custo­mer shall be entit­led to dispose of the reser­ved goods in the ordi­nary course of busi­ness, in parti­cu­lar to resell or further process them, until revo­ked by us. The resale of the goods subject to reten­tion of title shall not be deemed to have been made in the ordi­nary course of busi­ness if the custo­mer excludes the assi­gna­bi­lity of its claims against the secon­dary custo­mer (§ 399 BGB), makes such assign­ment depen­dent on the consent of the secon­dary custo­mer or expo­ses its claim to a right of set-off by the secon­dary custo­mer. In the afore­men­tio­ned cases, the customer’s right of dispo­sal over the goods subject to reten­tion of title shall not be gran­ted by us from the outset; it shall also be deemed revo­ked if the custo­mer beco­mes insol­vent or insol­vency procee­dings are filed against its assets. The right to revoke the power of dispo­sal for other reasons – which do not require justi­fi­ca­tion – is reser­ved. If the customer’s power of dispo­sal is or is deemed to be revo­ked, we shall be entit­led to assert our claim for return of title without the need for a prior remin­der or setting of a dead­line; the custo­mer waives in advance the objec­tion of having conflic­ting rights of posses­sion from the previous purchase / work deli­very contract.

8.2. Any proces­sing or treat­ment of the goods subject to reten­tion of title at the customer’s premi­ses shall be carried out on our behalf, without the custo­mer being entit­led to any claims for compen­sa­tion for work against us as a result. If a new item or mate­rial entity is crea­ted by combi­ning the goods subject to reten­tion of title with parts that are not our property, we shall acquire a co-owner­ship share in this in the ratio of our invoice value for the goods subject to reten­tion of title to the produc­tion or purchase value of the third-party parts. The provi­sion of the prece­ding para­graph (1) senten­ces 3-6 of these Terms and Condi­ti­ons shall apply muta­tis mutan­dis to the Buyer’s right to resell items (aggre­ga­tes of items) in which we have co-ownership.

8.3. The custo­mer assigns to us in advance – in the case of co-owned goods propor­tio­na­tely in the value ratio of para­graph (2) sentence 2 – the claims against the second purcha­ser arising from the resale of goods subject to reten­tion of title (exten­ded reten­tion of title). If the goods subject to reten­tion of title have increased in value at the custo­mer through proces­sing or other finis­hing measu­res, the advance assign­ment shall be limi­ted to the amount of our invoice value plus 10 % thereof. The custo­mer shall not assert the non-assi­gned parts of the claim to our disad­van­tage. The custo­mer shall remain autho­ri­zed in the ordi­nary course of busi­ness to coll­ect the claims assi­gned to us in advance, subject to revo­ca­tion of this autho­rity to coll­ect at any time and without justi­fi­ca­tion or noti­fi­ca­tion of the assign­ment to the secon­dary custo­mer by us. If the custo­mer has assi­gned the claims arising from the resale of goods subject to reten­tion of title (co-owner­ship) in favor of third parties (in parti­cu­lar lending banks) earlier than to us, this shall not be deemed to be a sale in the ordi­nary course of busi­ness. If the custo­mer wishes to sell the claims arising from the resale of goods subject to reten­tion of title (co-owner­ship) to a third party assum­ing the del credere risk (genuine facto­ring), the effec­ti­ve­ness of this sale shall depend on our prior writ­ten consent, other­wise the dispo­sal – like­wise always in the case of sale of claims assi­gned by us in advance in favor of a third party not assum­ing the del credere risk or assum­ing it only to a limi­ted extent (non-genuine facto­ring) – of the claim to which we are entit­led shall not be deemed to have been made in the ordi­nary course of busi­ness. All to us.

8.4. The custo­mer shall notify us imme­dia­tely of any seizure or other impair­ment by third parties of our goods subject to reten­tion of title or of the claims (parts of claims) assi­gned to us in advance arising from their resale. Upon request, the custo­mer shall permit access to its busi­ness premi­ses for the purpose of ascer­tai­ning, iden­ti­fy­ing, sepa­ra­tely storing or remo­ving the goods subject to reten­tion of title. The custo­mer under­ta­kes to provide us with the infor­ma­tion requi­red for the asser­tion of pre-assi­gned claims against secon­dary custo­mers and to make available to us copies of the evidence requi­red for this purpose from its busi­ness records.

8.5. Inso­far as our rights from simple or exten­ded reser­va­tion of title 6 in conjunc­tion with any other secu­ri­ties in rem gran­ted to us by the custo­mer exceed our claims from the busi­ness rela­ti­onship in terms of value by more than 10 %, we shall release secu­ri­ties of our choice at the request of the customer.

9. Set-off, right of retention

9.1. Offset­ting against our payment claims shall be excluded unless the coun­ter­claims of the custo­mer are acknow­led­ged by us or have become res judi­cata. The custo­mer shall not be entit­led to exer­cise a right of reten­tion on account of coun­ter­claims arising from a contrac­tual rela­ti­onship other than the speci­fic contrac­tual relationship.

10. Elimi­na­tion of the obli­ga­tion to pay in advance

10.1. In the case of agreed deli­veries (partial deli­veries), we shall be entit­led to demand perfor­mance upon coun­ter-perfor­mance against cash payment or the provi­sion of suffi­ci­ent secu­ri­ties if, after conclu­sion of the contract, circum­s­tances become known which give rise to fears that our claim to payment will be jeopar­di­zed. The follo­wing shall be deemed to be a threat to claims: cheque protests and default in payment on the part of the custo­mer after two unsuc­cessful remin­ders from us; in these cases, all our claims against the custo­mer shall become due imme­dia­tely. If the buyer refu­ses the perfor­mance upon coun­ter-perfor­mance or the gran­ting of secu­ri­ties, we shall be entit­led, at our discre­tion, to with­draw from the contract or to claim dama­ges for non-performance.

11. Property rights

11.1. The custo­mer is liable to us for the free­dom of the orde­red deli­veries and services from possi­ble (protec­tive) rights of third parties. In this respect, the custo­mer shall indem­nify us against all claims arising ther­e­f­rom and shall be obli­ged to pay damages.

12. Data protection

12.1. For the purpose of credit checks, Bürgel Wirt­schafts­in­for­ma­tio­nen GmbH & Co. KG, Post­fach 500 166, 22701 Hamburg, Germany, will provide us with the address and credit­wort­hi­ness data stored in its data­base rela­ting to you, inclu­ding data deter­mi­ned on the basis of mathe­ma­ti­cal-statis­ti­cal methods, provi­ded that we have credi­bly demons­tra­ted our legi­ti­mate interest.

12.2. For the purpose of deci­ding on the estab­lish­ment, imple­men­ta­tion or termi­na­tion of contrac­tual rela­ti­onships, we coll­ect or use proba­bi­lity values, the calcu­la­tion of which includes address data.

13 Appli­ca­ble law, place of jurisdiction

13.1. The contrac­tual rela­ti­ons with the custo­mer are subject to the law of the Fede­ral Repu­blic of Germany.

13.2. The place of juris­dic­tion for all dispu­tes arising from bila­te­ral commer­cial tran­sac­tions (inclu­ding actions on checks) shall be Ahaus. We are also entit­led to sue the custo­mer before the court respon­si­ble for his place of business.

Teplast Herbert Terbrack GmbH & Co KG

Septem­ber 2019