1 Area of application
These general conditions for deliveries and services apply to all – also future – deliveries, services and offers of Iprotex GmbH & Co. KG, Kirchenlamitzer Str. 115, 95213 Münchberg (subsequent referred to as supplier) unless they have not been modified or excluded explicitly and written. Deviating general conditions are not accepted. The “International Commercial Terms” (Incoterms) published by the International Chamber of Commerce shall apply.
2 Conclusion of contract, documents, technical standards, prices, packaging, transport insurance
The offers of the supplier are not binding
Information in documents belonging to the offer as well as illustrations, drawings, weight and dimension specifications, performance and other property descriptions and other information about contractual products and services do not represent a guarantee of properties. Certainpropertiesof the goods to be delivered shall only be deemed to be guaranteed if this has been expressly agreed in writing.A reference to standards or agreed specifications alone contains only a more detailed description of goods or services and no assurance of properties.
Unlessotherwiseexpressly agreed, the prices are based on the pricelists applicable to the individual customer. All prices are ex works of the supplier plus value added tax and packaging. In the absence of a special agreement, packaging shall be at the supplier’s option and at the supplier’s expense. The supplier is entitled to demand packaging material freight paid to the place of dispatch or plant. This applies in particular to containers and pallets which are only lent and remain the property of the supplier.
3 Delivery, passing of risk, dispatch
(1) Unless otherwise agreed in writing, all deliveries shall be made exclusively ex works of the supplier.
(2) Partial deliveries are permissible.
(3) The dispatch of goods is at the expense and risk of the customer.
4 Delivery time, delay, demission
The delivery dates given are approximate deadlines. The delivery period begins with the dispatch of the order confirmation, but not before providing the documents, drawings, approvals and other formalities to be provided by the customer and before the agreed advance payments have been made.
In the event of a delay in delivery for which the Supplier is responsible, the Purchaser may — provided that it can credibly prove that it has suffered damage as a result, demand a lump-sum compensation of 0. 5% — but no more than 5% — of the value of that part of the delivery which cannot be used as intended as a result of the delay for each completed week of the delay (to the exclusion of further claims). 7 (5) applies accordingly.
Insofar as the maximum amount of damages according to § 4 (2) has been reached, the customer may — taking into account the statutory exceptions and within the framework of the statutory provisions — after setting a reasonable deadline for performance, declare the cancellation of the contract with regard to the delayed part. This is the case if the supplier does not meet this requirement before.
If the Purchaser is in default with a material obligation arising from the contractual relationship, the supplier shall be entitled to extend the delivery period by the period of default. §5 applies accordingly.
Deliveries are to be accepted by the customer irrespective of his warranty rights, even if they do not show any significant defects. The customer shall bear the costs for storage, insurance, protective measures etc. incurred due to delayed acceptance. Without special proof he has to pay at least 0. 5% of the order value per week of delay, however, a maximum of 5%. The supplier may set the purchaser a reasonable period of time in writing for acceptance if the purchaser does not accept the goods at the time of delivery. The right of the supplier to demand the purchase price remains unaffected. After expiry of this period, the supplier may cancel the contract in whole or in part by written declaration and claim damages.
(1)Unless otherwise agreed, all payments are to be made within 14 days from the invoice with 2% discount or within 30 days from the invoice net without deduction. All payments are made in EURO. Expenses of the foreign bank are paid by the buyer. Bills of exchange or cheques are only accepted on account of performance. In the case of collective invoices with more than 10 calendar days between the delivery date and the invoice date, no discount can be granted for the corresponding invoice amount.
(2)In the event of late payment, the supplier shall be entitled to charge interest at 8% points above the base rate of the European Central Bank from the due date. In this respect, the supplier may suspend the execution of the contract. If the purchaser has not made the agreed payment within a reasonable period of grace, but no later than one month after the due date, the supplier may declare the cancellation of the contract and claim damages by written notification.
(3) In the case of newly established business relationships, the supplier reserves the right to make deliveries only against prepayment. If special circumstances give rise to considerable doubts as to the creditworthiness of the customer, all claims arising from the business relationship become due immediately and the supplier is entitled to demand delivery against prepayment and prepayment before release for production. Sentence 1 shall also apply in the event of default in payment and insolvency of the customer. If partial payment has been agreed and the customer is in arrears with more than 10% of the outstanding purchase price, the entire outstanding balance shall become due for payment immediately.
(4) In the case of customer-specific products (custom-made products) or variants thereof, the supplier is generally entitled to a down payment of two thirds of the agreed purchase price, payable at the latest 3 weeks before the start of production. The supplier is free to invoice the customer for pro rata setup and additional costs.
7 Responsibility for contractual conformity of the goods (material and legal defects
(1)The customer must inspect the goods immediately upon receipt. He has to proceed according to the recognized rules of technology. In any case, he loses the right to invoke a lack of conformity if he does not notify the supplier in writing immediately after the time at which he has discovered the defects or should have discovered them and describes them in detail. After consultation with the supplier, the purchaser shall ensure that all evidence is available.
(2)The proof of careful handling and proper storage of the goods is incumbent on the customer.
(3)If the goods are not in accordance with the contract, the supplier may, even in the case of major defects, initially, at his discretion, repair or replace the goods within a reasonable period of time, at least 2 weeks after request by the customer. The rectification of defects may also be carried out by the purchaser after consultation with the supplier. The customer is obliged to cooperate in the rectification of defects against reimbursement of costs and in accordance with the instructions of the supplier to the extent reasonable.
If the rectification of defects fails, the customer is entitled to withdraw from the contract within the framework of the legal requirements — if necessary after setting a deadline beforehand.
In the case of only insignificant defects, the customer is only entitled to a reduction of the purchase price (§ 440, 323 V S. 2 BGB).
(4) If the supplier does not remedy a non-conformity in accordance with § 7 (3) by repair or replacement, the contracting parties agree on an appropriate reduction of the purchase price.
(5) If not regulated in § 4 (2), (2) and § 7 (1) to (4), § 9 and § 10, the supplier is not responsible for non-conformities, damages and breaches of duty of his legal representatives and vicarious agents — on whatever legal grounds. This applies to any damage caused by defects and consequential damage, in particular damage which cannot be repaired or replaced or which has not occurred on the delivery item itself, including loss of production and loss of profit.
In the event of a breach of essential contractual obligations and thus obligations, the fulfilment of which is essential for the proper performance of the contract and on whose compliance the Purchaser may regularly rely, the Supplier shall be liable for every degree of culpability, whereby liability in the event of a breach of essential contractual obligations shall be limited to the reasonably foreseeable damage typical of the contract.
However, the supplier shall be liable in any case for intent and gross negligence, including intent and gross negligence of the legal representatives and vicarious agents. The same applies if liability is assumed for specially assumed guarantees, in the case of malice, injury to life, body or health for any degree of fault or if liability is assumed under the Product Liability Act for physical injury or property damage to privately used objects.
(6) Deviations in quantities (up to 10 %, for custom-made products up to 20 %), dimensions, quality, weights and the like are permitted within the framework of customary trade practice. Equivalent design changes are reserved.
(7) Instructions of the supplier on the conditions or application of the contractual products must be observed by the purchaser, otherwise claims for defects will not be accepted.
8 Plans, sales documents, secrecy
(1) All rights to samples, devices, tools, drawings, drafts and plans, in particular patent, copyright and inventor rights, produced by the supplier, are exclusively entitled to this. All sales documents, such as catalogues, sample books, price lists etc. , which are made available to the purchaser remain the property of the supplier and must be returned on request.
(2) The contracting parties agree to keep secret all economic and technical details of their mutual business relationship as long as they have not become obvious. This also applies to the items mentioned in § 8 (1), which may not be copied or disclosed or otherwise made accessible to third parties without authorisation.
All property rights and copyrights to information originating from the supplier — also in electronic form — remain with the supplier.
(3The contracting parties shall impose the same confidentiality obligations on their subcontractors as described in § 8 (2).)