Status: October 13, 2020
The following conditions only apply to companies, legal entities under public law or a special fund under public law. In case of ambiguity, the German version applies.
- Orders only become binding once the supplier has confirmed the order. Changes and additions should be made in writing. All offers are non-binding unless they are designated as firm offers.
- In the case of ongoing business relationships, these terms and conditions also apply to future transactions in which no express reference is made to them, provided that they have been received by the purchaser in the case of an order previously confirmed by the supplier.
- Terms and conditions of the customer do not apply unless they are expressly recognized by the supplier.
- Should individual provisions be or become ineffective, this shall not affect the remaining conditions.
- In case of doubt, the prices apply ex works excluding freight, customs, additional import duties and packaging plus VAT at the statutory rate.
- If the relevant cost factors change significantly after the offer has been submitted or after the order has been confirmed until delivery, the supplier and customer will agree on an adjustment of the prices and the cost shares for molds.
- If the price depends on the weight of the parts, the final price is derived from the weight of the approved sample.
- For new orders (= follow-up orders), the supplier is not bound to previous prices.
III. Delivery and purchase obligation
- Delivery periods begin after receipt of all documents required for the execution of the order, the down payment and the timely provision of materials, insofar as these have been agreed. With notification of readiness for dispatch, the delivery deadline shall apply if dispatch is delayed or impossible through no fault of the supplier.
- If an agreed delivery deadline is not adhered to due to the supplier's own fault, the customer is entitled, after a reasonable grace period, to claim compensation for delay or to withdraw from the contract, unless he has acted with gross negligence or willful intent. The compensation for delay is limited to a maximum of 5% of that part of the delivery that was not made in accordance with the contract. Withdrawal is excluded if the customer is in default of acceptance. The customer reserves the right to provide evidence of higher damage.
- Appropriate partial deliveries as well as reasonable deviations from the order quantities of up to plus / minus 10% are permitted.
- In the case of call-off orders without an agreement of duration, batch sizes and acceptance dates, the supplier can request a binding stipulation about this no later than 3 months after the order confirmation. If the customer does not comply with this request within 3 weeks, the supplier is entitled to set a two-week grace period and, after this period has expired, to withdraw from the contract and / or to claim damages.
- If the customer does not fulfill his purchase obligation, the supplier is not bound by the regulations on self-help sales, irrespective of other rights, but can rather sell the delivery item on the open market after notifying the customer in advance.
- Events of force majeure entitle the supplier to postpone the delivery for the duration of the hindrance and an appropriate start-up time, or to withdraw in whole or in part from the part of the contract that has not yet been fulfilled. Force majeure includes strikes, lockouts or unforeseeable, unavoidable incidents, e.g. Malfunctions, regardless of which make timely delivery impossible for the supplier despite reasonable efforts; The supplier must provide evidence of this. This also applies if the aforementioned hindrances occur during a delay or at a sub-supplier. The customer can ask the supplier to declare within two weeks whether he wants to withdraw or deliver within a reasonable grace period. If he does not make a declaration, the customer can withdraw from the unfulfilled part of the contract. The supplier will notify the customer immediately if a case of force majeure as set out in paragraph 1 occurs. He has to keep impairments of the customer as low as possible, if necessary by handing over the forms for the duration of the hindrance.
IV. Packaging, shipping, transfer of risk and default in acceptance
- Unless otherwise agreed, the supplier chooses the packaging, type of dispatch and dispatch route.
- Even in the case of freight-free delivery, the risk is transferred to the purchaser when it leaves the delivery plant. In the case of delays in dispatch for which the customer is responsible, the risk is transferred when the customer is notified that the goods are ready for dispatch.
- At the written request of the customer, the goods will be insured against risks to be identified by the customer at his own expense.
V. Retention of title
- The deliveries remain the property of the supplier until all claims to which the supplier is entitled against the customer have been met, even if the purchase price for specially designated claims has been paid. In the case of a current invoice, the reserved ownership of the deliveries (goods subject to retention of title) shall serve as security for the supplier's balance invoice. If the supplier is liable for a bill of exchange in connection with the payment of the purchase price, the retention of title does not expire before the bill has been redeemed by the buyer as the drawee
- Any treatment or processing by the customer takes place under exclusion of the acquisition of ownership in accordance with § 950 BGB on behalf of the supplier; in accordance with the ratio of the net invoice value of its goods to the net invoice value of the goods to be treated or processed, the latter becomes the co-owner of the item thus created, which serves as reserved goods to secure the claims of the supplier in accordance with paragraph 1.
- In the case of processing (combining / mixing) with other goods that do not belong to the supplier, the provisions of §§ 947, 948 BGB apply with the result that the supplier's co-ownership share in the new item is now deemed to be reserved goods within the meaning of these conditions.
- The customer is only permitted to resell the goods subject to retention of title in the ordinary course of business and on condition that he also agrees on retention of title with his customers in accordance with paragraphs 1 to 3. The customer is not entitled to dispose of the reserved goods in any other way, in particular pledging and security transfer.
- In the event of a resale, the purchaser hereby assigns to the supplier the claims arising from the resale and other justified claims against his customers with all ancillary rights until all claims of the supplier have been met. At the request of the supplier, the purchaser is obliged to immediately provide the supplier with all information and documents that are necessary to assert the rights of the supplier against the purchaser's customers.
- If the reserved goods are processed by the customer in accordance with paragraph 2 and / or 3 together with other goods that do not belong to the supplier are resold, the assignment of the purchase price claim in accordance with paragraph 5 only applies to the amount of the invoice value of the supplier's goods subject to retention of title.
- If the value of the securities existing for the supplier exceeds his total claims by more than 10%, the supplier is obliged to release securities of the supplier's choice at the request of the customer.
- Attachments or confiscation of the reserved goods by third parties must be reported to the supplier immediately. Intervention costs arising from this are in any case to be borne by the customer, unless they are borne by third parties.
- If the supplier makes use of his retention of title by taking back the goods subject to retention of title in accordance with the above provisions, he is entitled to sell the goods privately or to have them auctioned. The assertion of the retention of title and in particular the request for surrender represent a withdrawal from the contract. The goods subject to retention of title are taken back at the proceeds achieved, but at most at the agreed delivery prices. We reserve the right to make further claims for damages, in particular for lost profit.
We are liable towards consumers in accordance with the statutory provisions, towards companies according to the following regulations:
- Decisive for the quality and design of the products are the samples that the supplier can submit to the customer for inspection upon request. The reference to technical standards serves to describe the service and is not to be interpreted as a guarantee of quality.
- If the supplier has advised the customer outside of his contractual performance, he is only liable for the functionality and suitability of the delivery item if it has been given an express prior assurance.
- Complaints must be made immediately in writing. In the case of hidden defects, the complaint must be made immediately after discovery. In both cases, unless otherwise agreed, all warranty claims expire twelve months after the transfer of risk. As far as the law according to § 438 Paragraph 1 BGB, 479 Paragraph 1 BGB and § 634a Paragraph 1 No. 2 BGB prescribe longer periods, these apply.
- In the event of a justified complaint - whereby the default samples released in writing by the customer determine the expected quality and design - the supplier is obliged to provide supplementary performance. If he does not meet this obligation within a reasonable period of time or if a repair fails despite repeated attempts, the customer is entitled to reduce the purchase price or withdraw from the contract. Further claims, in particular claims for reimbursement of expenses or damages due to defects or consequential damages, exist only within the framework of the provisions under VII. Replaced parts are to be returned freight collect on request to the supplier.
- Unauthorized rework and improper handling result in the loss of all claims for defects. Only to prevent disproportionately large damage or in the event of delay in rectifying the defect by the supplier, the customer is entitled, after prior agreement of the supplier, to make improvements and to demand reimbursement of reasonable costs.
- Wear and tear due to use in accordance with the contract does not result in any warranty claims
- Recourse claims according to §§ 478, 479 BGB only exist if the use by the consumer was justified and only to the legal extent, but not for goodwill regulations not agreed with the supplier and presuppose that the person entitled to recourse complies with its own obligations, in particular compliance with the notification obligations..
We are liable towards consumers in accordance with the statutory provisions, towards companies according to the following regulations:
- We are liable for a culpable breach of our essential contractual obligations in accordance with the statutory provisions. Essential contractual obligations are obligations that characterize the typical purpose of the contract, the fulfillment of which makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner can regularly rely. We are only liable for typically occurring, foreseeable damage insofar as we are not responsible for gross negligence or willful behavior.
- In all other cases we are only liable if damage has been caused intentionally or through gross negligence by one of our legal representatives or vicarious agents. If we accept a guarantee or for damage resulting from injury to life, limb or health, we are liable in accordance with the statutory provisions. Otherwise claims for damages from breaches of duty against us are excluded.
- Liability in accordance with the Product Liability Act remains unaffected.
- A claim for damages due to violation of the obligation to supplementary performance according to §§ 437 No. 1, 439 BGB only exists if during the 12-month limitation period according to point VI. 3 both the customer has requested supplementary performance and we have violated our obligation to supplementary performance.
- Any claims for damages become statute-barred within the statutory periods.
VIII. Terms of payment
- All payments are to be made in € (EURO) exclusively to the supplier.
- Unless otherwise agreed, the purchase price for the deliveries or other services is payable with a 2% discount within 14 days and without deduction within 30 days of the invoice date. A discount must be paid for all earlier invoices. No discount is granted for any payments by bill of exchange.
- If the agreed payment date is exceeded, interest at the statutory rate of 8 percentage points above the respective base rate of the ECB will be charged, unless the supplier can prove higher damage. The customer reserves the right to provide evidence of lower damage.
- We reserve the right to reject checks and bills of exchange. Checks and rediscountable bills of exchange are only accepted on account of performance, all associated costs are borne by the customer
- The customer can only offset or exercise a right of retention if his claims are undisputed or have been legally established.
- The sustained non-compliance with terms of payment or circumstances which give rise to serious doubts about the creditworthiness of the customer result in the immediate maturity of all claims of the supplier. In this case, the supplier is also entitled to demand advance payments for deliveries that are still outstanding and to withdraw from the contract after a reasonable period has elapsed without success.
- The price for molds also includes the costs for one-off sampling, but not the costs for testing and processing devices and for changes made by the customer. Costs for further samples for which the supplier is responsible are borne by the supplier.
- Unless otherwise agreed, the supplier is and remains the owner of the molds manufactured for the customer by the supplier himself or a third party commissioned by him. Molds are only used for orders placed by the customer as long as the customer fulfills his payment and acceptance obligations. The supplier is only obliged to replace these molds free of charge if they are required to meet the output volume guaranteed to the customer. The supplier's obligation to keep them expires two years after delivery of the last parts. Delivery from the form and prior notification of the customer.
- If, as agreed, the customer should become the owner of the molds, ownership will pass to him after the purchase price has been paid in full. The transfer of the molds to the customer is replaced by storage in favor of the customer. Irrespective of the purchaser's legal right to return and the service life of the molds, the supplier is entitled to their exclusive possession until the end of the contract. The supplier must mark the forms as third-party property and insure them at the request of the purchaser at his expense.
- In the case of the customer's own molds in accordance with paragraph 3 and / or molds made available on loan by the customer, the supplier's liability with regard to storage and maintenance is limited to the same care as in his own affairs. The customer bears the costs for maintenance and insurance. The supplier's obligations expire if the customer does not collect the molds within a reasonable period of time after the order has been completed and the corresponding request has been made. As long as the customer has not fully complied with his contractual obligations, the supplier has a right of retention to the molds in any case.
X. Provision of materials
- 1. If materials are supplied by the customer, they are to be delivered on time and in perfect condition at his own risk and expense with an appropriate quantity surcharge of at least 5%.
- 2. If these requirements are not met, the delivery time will be extended accordingly. Except in cases of force majeure, the customer bears the additional costs incurred for production interruptions.
XI. Industrial property rights and legal defects
- If the supplier has to deliver samples based on drawings, models or using parts provided by the customer, the customer is responsible for ensuring that the property rights of third parties in the country of destination of the goods are not violated. The supplier will inform the customer of the rights known to him. The customer has to indemnify the supplier from claims by third parties and compensate for the damage incurred. If the manufacture or delivery is prohibited by a third party on the basis of a proprietary right belonging to him, the supplier is entitled - without checking the legal situation - to stop the work until the legal situation has been clarified by the customer and the third party. If, due to the delay, the continuation of the order is no longer reasonable for the supplier, he is entitled to withdraw.
- Drawings and samples left to the supplier that did not lead to the order will be returned to Winsch; otherwise he is entitled to destroy them three months after submitting the offer. This obligation applies accordingly to the customer. The person entitled to the destruction must inform the contractual partner in advance of his intention to destroy.
- The supplier is entitled to the copyrights and, if applicable, industrial property rights, in particular all rights of use and exploitation of the models, forms and devices, drafts and drawings created by him or by third parties on his behalf.
- If there are other legal defects, No. VI applies to them corresponding.
XII. Fulfillment and jurisdiction
- The place of performance is the place of the supplier
- The place of jurisdiction is, at the option of the supplier, the company's registered office or the registered office of the customer, also for documents, bills of exchange and checks.
- 3. German law applies exclusively. The application of the United Nations Convention of April 11, 1980 on Contracts for the National Sale of Goods (BGBI 1989 p. 586) for the Federal Republic of Germany (BGBI 1990 p. 1477) is excluded.