Unless otherwise agreed upon in writing, the following terms and conditions of sale and delivery shall apply exclusively to all our deliveries and sales transactions. These shall also apply to all future business transactions with the client. Any general terms and conditions of business of the client shall be objected to and shall not apply insofar as they conflict with the following terms and conditions or if we do not expressly agree to them in writing. These terms and conditions of sale and delivery only apply to companies as defined in § 310 BGB (German Civil Code).
In general, initial offers are made free of charge. Further offers and design work will only be carried out free of charge if a delivery contract is established with legal effect. Our offers are always subject to change until the order is confirmed or executed, both with regard to the prices and the delivery options, insofar as a temporary commitment has not been agreed upon. The documents pertaining to our offer, such as illustrations, drawings, weight and measurement specifications, contain only approximate values, unless they are expressly designated as binding. We reserve all rights, in particular ownership and copyright, to cost estimates, drawings and other such documents; they shall not be made accessible to third parties. We are entitled to accept orders from a client within two weeks of receipt of the respective order by sending an order confirmation. Orders shall only become binding upon our written confirmation.
Prices are quoted in Euro plus value added tax at the statutory rate. In the absence of a specific agreement, prices are ex works excluding packaging, insurance, customs, etc.
In the absence of a specific agreement, prices shall be deemed to be subject to change with the provision that they are valid on the day of delivery. Standard prices for tools are open-ended standard values which are calculated on the basis of the expected expenditure; invoicing shall be based on the expenditure incurred unless otherwise agreed upon in writing.
The wording of our order confirmation shall be binding for our production or delivery. If there are any changes or contradictions to the purchaser's order, the purchaser is obligated to inform us immediately in writing. In the event of any changes that have to be made through no fault of our own, the client shall be liable for the costs incurred. The client's change requests can only be taken into account with binding effect if we confirm them in writing. The client shall provide us with the relevant 1:1 construction plans. We do not guarantee the performance and function of tool designs which we have not produced ourselves. If the client does not provide us with relevant 1:1 designs at the time of placing the order or if he does not inform us otherwise with regard to production, we shall produce them ourselves. The 1:1 designs produced by us shall be deemed to have been approved 3 weeks after they have been sent to the client, provided that no explicit written objection has been raised. If tracings or copies have to be made for the 1:1 designs, these will be invoiced separately. Production-related and industry standard quantity differences of 10 percent compared to the agreed quantity are permissible and shall be accepted by the purchaser insofar as the difference is not unreasonable for the purchaser in the specific case.
If a fixed delivery date is not expressly agreed upon, delivery times shall be deemed to be only approximate. In general, the specified delivery times shall not commence until all information and designs required for production are available to us. Changes in execution during the order period require a suitable extension of the agreed upon deadlines. Delivery times are ex works Krailling, Germany, and are only guaranteed barring unforeseen circumstances, such as force majeure, in particular mobilisation, war, riots, operational disruptions, strikes, etc. In the event of a delay on our part, the client shall be entitled to specify a reasonable period of grace for the fulfilment of the contract and to withdraw from the contract after the expiration of this period of grace without effect. He may not reject partial fulfilment; claims for damages due to non-fulfilment or delayed fulfilment are excluded, unless the delay is due to intent or gross negligence on our part.
Upon handover of the goods to the shipper, carrier or forwarder, or at the latest when the deliverables leave the delivering plant or our warehouse, or any other warehouse, the risk of accidental loss and accidental damage of the goods shall pass to the client, even in the case of freight-free delivery. Goods which have been reported ready for dispatch must be claimed immediately. Should this not occur, we shall be entitled to store them at our discretion at the expense and risk of the purchaser and to invoice them as delivered ex works. Freight-free delivery is always understood to be only freight-free to the specified delivery address of the purchaser. If, in comparison to the intended mode of dispatch, a mode of dispatch is requested which is more expensive, in particular express delivery, truck delivery or similar types of delivery, the client shall bear the additional costs in comparison to the mode of dispatch provided for in the order confirmation, if such a mode of delivery is requested.
Claims for defects shall expire after 12 months, starting from the point of transfer of risk, unless otherwise agreed upon in a specific contract or unless a longer period is mandatory by law. Excluded from this warranty are all surface finishes such as paint coats, chrome plating, nickel plating, coatings, etc., both of entire systems and of individual components. Insofar as we incorporate third-party products, we shall only assume warranty for these components insofar and to the same extent as our suppliers assume such warranty vis-à-vis us. The client is obligated to inspect the delivered goods for any defects immediately upon receipt and to notify us of such defects in writing and without delay. If there is a defect in the delivered goods for which we are responsible, we shall, at our discretion, either remedy the defect or supply a replacement free of charge in return for freight-free return of the defective delivered goods. In the event that remedy of the defect is ultimately unsuccessful, the customer may, at his discretion, request a reduction of the purchase price or withdraw from the contract. The client shall give us reasonable time and opportunity to carry out all remedial measures which we deem necessary at our reasonable discretion. If he refuses to do so without justification, we shall be exempt from liability for defects. Only in urgent cases of danger to operational safety or to avert disproportionately large damage, in which case we must be notified immediately, or if we are in delay with remedying the defect, shall the client have the right to remedy the defect himself or have it remedied by third parties at his own risk and to demand reimbursement of the necessary costs from us. We shall be exempt from liability for defects in the case of any improper modifications or repair work carried out by the client or third parties as well as any consequences arising therefrom.
This exemption from claims for damages does not apply in the case of intent, gross negligence, culpable injury to life, limb or health, in the case of defects which have been fraudulently concealed or the absence of which we have guaranteed, or for claims in accordance with §§ 1, 4 Produkthaftungsgesetz. In the event of culpable breach of essential contractual obligations (cardinal obligations), we shall also be liable in the event of simple negligence, but limited to the reasonably foreseeable damage typical for the contract.
Insofar as we are exempt from liability or our liability is limited, this shall also apply to the personal liability of our employees, representatives and assistants.
The terms of payment specified on our order confirmation or invoice shall apply to the order in each case. Any discount period shall commence from the date of the invoice. Discounts will only be granted at the specified percentage rate. In the case of cash discount deductions, payment must be made in such a way that the amount paid is credited by our bank by the end of the cash discount period at the latest. The offsetting of invoice sums is only permissible against recognised or legally established counterclaims. Bills of exchange and cheques are only accepted on account of payment and not in lieu of performance. Credit notes for incoming bills of exchange and cheques are therefore only valid with reservation of receipt of the sum. In the event of default in payment, interest shall be charged at a rate of 9 percent above the respective base interest rate per year. If, after confirmation of the order, we become aware of circumstances which make the creditworthiness of the client appear doubtful, we shall be entitled to make our delivery dependent on prior payment. If the client does not pay in advance within a reasonable period of time, we are entitled to withdraw from the contract. We reserve the right to assert claims for damages due to culpable conduct on the part of the client upon conclusion of the contract.
The delivered goods remain our property until final fulfilment of all payment obligations of the client resulting from his entire business relationship with us.
Resale Clause:
The client is entitled to resell our goods subject to retention of title according to standard business practice. The purchaser hereby cedes to us in advance all claims against third parties arising from this in the respective invoice value (incl. VAT). Notwithstanding this cession, the purchaser shall remain entitled to collect the claim. The right of sale and the right of collection may be revoked individually or jointly if the client defaults on a payment obligation arising from his business relationship with us, if the client ceases to make payments, or if an insolvency request is filed by him or by a third party against his assets, or if the financial circumstances of the client deteriorate to such an extent that the fulfilment of our claims arising from his business relationship with us is at risk. At our request, the client is obligated to inform us immediately of any resale, in particular the name and address of the new purchaser. At our request, he is obligated to notify debtors of the cession. We are entitled to make such notification at any time.
Processing Clause:
Processing and alteration of our goods by the client shall take place exclusively for us. In the event of processing with other goods not owned by us, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of our reserved goods to the purchase price of the other processed goods (at the time of processing).
The laws of the Federal Republic of Germany shall apply to the exclusion of the CISG (UN Convention on Contracts for the International Sale of Goods).
Should any provision of these Terms and Conditions of Sale and Delivery or of the contract be or become invalid, this shall not affect the validity of all other provisions and agreements. Instead, the parties are obligated to replace the invalid or unenforceable clause with a clause that comes as close as possible to the economic content of the invalid or unenforceable clause.
Helmut Schweyer Feinmechanik GmbH
Konrad-Zuse-Bogen 11
82152 Krailling
Germany
Version: February 2018