General Terms of Bisuness for Foudry Products
(As at: 1 January 2020)
Our deliveries and services are subject only to the following conditions; differing conditions of the ordering party will not apply even if we are aware of those conditions and execute the delivery without reservation. Our conditions do not apply to consumers for the purposes of § 13 BGB (German Civil Code). They will also apply to all future transactions with the ordering party under an ongoing business relationship. All agreements entered into between us and the ordering party to execute this contract must be set forth in this contract in writing. Amendments to this contract must use the written form (“Schriftform” under § 126 of the German Civil Code).
1. Contract conclusion; Scope of delivery
- Our offer is subject to change unless otherwise specified in the order confirmation or expressly declared by us. A contract will only be concluded if we execute an order or confirm it in writing.
- The details contained in the brochures and catalogues, such as illustrations, drawings, and information on weights and measurements, are approximate values that are customary in the industry unless they are expressly designated as binding.
- We reserve the ownership rights and copyrights to illustrations, brochures, calculations, and other documents; they may not be made available to third parties. This especially applies to written documents that are marked “confidential”; the ordering party may not forward them to third parties without our express written consent.
2. Pricing and payment conditions
- Our prices apply ex works plus packaging, freight, postage, insurance, and any statutory value added tax.
- If order-related costs change significantly after contract conclusion, the contracting parties shall agree on an adjustment.
- Unless otherwise agreed, our invoices are due for immediate payment with no deductions.
- The ordering party may withhold payments or set them off against counterclaims only if its payment claims are uncontested or have been legally established.
- If we deliver partially defective goods, the ordering party shall still pay for the indisputably defect-free goods unless that party has no interest in the partial delivery.
- If expressly agreed in advance, we accept discountable and properly taxed bills of exchange on account of payment. Credit notes against bills of exchange and cheques are issued subject to receipt and minus expenses at the value on the day on which we are able to access the exchange value.
- If we are obligated to make advance deliveries, but after entering into the contract become aware of circumstances according to which our payment claim is jeopardized by the ordering party’s lack of ability to pay, we will be entitled to the statutory claims based on the retention of title agreed in item 9 and may also demand that the delivered goods be resold and processed at the ordering party’s expense and revoke the direct debit authorization under the conditions of item 9(h). The ordering party hereby authorizes us to enter its place of business and collect the delivered goods in the aforementioned cases. A repossession of the goods will not be deemed a withdrawal from the contract unless we declare this explicitly.
- If the payment is late, we may, after giving written notification, suspend the fulfilment of our obligations until the payment is received. In this case, we are also entitled to withdraw from the contract after having set a reasonable grace period.
3. Delivery period
- Delivery periods begin with our order confirmation, but not until all details of execution have been clarified and all other conditions to be fulfilled by the ordering party have been met; the same applies to delivery dates. Partial deliveries and deliveries before the expiry of the delivery period are permitted provided these are acceptable to the ordering party. The delivery date will be deemed the day on which notification of readiness for shipment is given or, failing that, the day of dispatch. Unless otherwise agreed or otherwise specified under the contractual relationship, the delivery period we specify is always non-binding.
- If the ordering party is in arrears with their obligations, agreed delivery periods and deadlines will be extended or postponed by the period of delay caused by them without prejudice to our rights. If the ordering party delays acceptance or culpably breaches other obligations to cooperate, we will be entitled to demand compensation for any damages we suffer, including any additional expenses. Moreover, as soon as the ordering party defaults in acceptance, the risk of accidental loss or deterioration of the purchased item will be transferred to that party.
- If we fail to adhere to a delivery deadline, the ordering party may set a reasonable grace period with the express declaration that they will refuse to accept delivery after that period expires, and may withdraw from the contract if that period does expire.
- On our request, the ordering party shall declare within a reasonable period whether, due to the delay in delivery, they will withdraw from the contract, demand damages in lieu of delivery, or both; or whether they will continue to insist on delivery.
4. Serial delivery; Long-term and call-off contracts
- Contracts without a fixed term may be terminated at the end of any month with a notice period of at least six months.
- If during long-term contracts (contracts that have a period of more than 12 months or that have no fixed term) the wage, material, or energy costs change significantly after the first four weeks of the contract period have expired, either contracting party may demand that the price be reasonably adjusted under consideration of such factors.
- Our prices are calculated on the basis of the agreed order volumes. If no binding order volumes have been agreed, our calculations will be based on the agreed target volume. If the order volume or target volume is not reached, we are entitled to increase the unit price accordingly. If the ordering party exceeds the volume with our consent, the ordering party may demand a reasonable price reduction if that party notifies us of this in writing at least two months before the agreed delivery deadline. The amount of the reduction or increase must be determined based on our costing data.
- For call-off delivery contracts, we must be notified of the call-off order for binding quantities at least three months before the delivery date unless otherwise agreed. If the ordering party causes any delays or subsequent changes regarding the time or quantity of the call-off order, the ordering party shall bear any additional costs this incurs; our costing will be authoritative to that end.
- For series production, excess or short deliveries of up to 10 % of the order volume are permissible due to idiosyncrasies of the casting procedure.
- The total price will be modified according to the scope of the excesses or shortages.
5. Force majeure and other hindrances
- Force majeure events, labor disputes, lockouts, and regulatory actions entitle us to postpone delivery for the duration of the hindrance plus an appropriate start-up period or withdraw from the contract in part or in full due to the non-fulfilled portion. We shall inform our customers of such circumstances without undue delay. Our customer may ask us to clarify within two weeks whether we wish to deliver within a reasonable period or withdraw. If we fail to provide such clarification, the customer may withdraw from the non-fulfilled portion of the contract.
- Unforeseeable circumstances such as operational breakdowns, rejects, and rework that prevent us from making prompt delivery despite our reasonable efforts will be deemed equivalent to force majeure; the burden of providing evidence of such circumstances lies with us.
6. Testing procedures; Acceptance
- If an acceptance procedure is agreed, its scope and conditions must be established at the same time, before the contract is concluded.
- If this is not established, acceptance will take place to the extent and under the conditions that are typical for us.
- The same applies to inspections of initial samples.
7. Dimensions; Weights; Number of units
- Deviations in dimensions, weights, and numbers of units are permissible as long as those deviations remain within the bounds of typical tolerances, relevant DIN provisions, and requirements of casting technology. Specifications of dimensions and weights in our offers and order confirmations are not deemed quality guarantees.
- Billing will be based on the delivery weights and numbers of units determined by us.
8. Shipping; Transfer of risk
- Unless otherwise agreed in writing, the delivery terms will be “ex works” (Incoterms 2010). This will also apply if we have undertaken to assume the transport costs.
- We shall take out transport insurance for the delivery only if this is explicitly requested by the ordering party, who shall bear the costs incurred to that extent.
- Goods concerning which a notice of readiness for shipment has been issued must be collected without undue delay, failing which we are entitled, at our own discretion, to ship them, or store them at costs customary for freight carriers and at the ordering party’s risk; we are also entitled to the latter option if the goods cannot be shipped through no fault of our own. One week after storage begins, the goods will be deemed delivered.
- Unless special instructions have been given, we will choose the means and route of transport at our discretion.
- Risk will be transferred to the ordering party as soon as the goods are handed over to the railway, forwarding agent, or freight carrier, or one week after storage begins, but at the latest when they leave the factory or warehouse, even if we have undertaken the delivery.
9. Retention of title
- All delivered goods remain our property (“Reserved Goods”) until all claims are fulfilled, especially any outstanding amounts to which we are entitled under the business relationship. This also applies if payments are made on specially designated claims. If the ordering party defaults on payment, we are entitled to demand that the delivered goods be returned. The ordering party shall bear the costs for returning them. This does not apply if insolvency proceedings against the ordering party have been requested or initiated, due to which we are not entitled to immediately demand the return of the delivered goods.
- Repossession of the goods or assertion of the retention of title will not be deemed a withdrawal from the contract unless we declare this explicitly.
- If the ordering party alters or processes the delivered goods, they do so on our behalf. If the delivered goods are processed or inseparably combined with other objects not belonging to us, we will acquire co-ownership of the new item in the ratio of the invoice value of our goods to the other processed or combined objects at the time of processing.
- If our property ceases to exist through processing or combination, the ordering party hereby transfers to us the ordering party’s ownership rights to the new inventory or item to the extent of the invoice value of the Reserved Goods, and shall hold them in custody for us at no charge. The co-ownership rights which arise hereby are deemed Reserved Goods as detailed in point a).
- The ordering party may sell the Reserved Goods within the normal course and under the normal terms of their business, as long as the ordering party is not in default and the accounts receivable from the resale are assigned to us in accordance with points f) and g). The ordering party may not dispose of the goods in any other way. The ordering party hereby assigns to us their accounts receivable arising from the resale of the Reserved Goods. They will serve as collateral to the same extent as do the Reserved Goods.
- If the Reserved Goods are sold along with other goods not delivered by us, the assignment of the accounts receivable from the resale will apply only in the amount of our invoice value regarding the Reserved Goods which have been sold. If goods in which we hold a co-ownership share pursuant to point b) are sold, the assignment of the accounts receivable applies in the amount of that co-ownership share.
- The ordering party may collect accounts receivable arising from the sale in accordance with points e) and f) until we revoke that authorization. We may pronounce such revocation in the cases named in item 2, if the ordering party defaults on payment, or a motion is made to initiate insolvency proceedings, or payment has been discontinued. In such cases, the ordering party is obligated to disclose the assigned accounts receivable and their debtors to us without undue delay, provide all information necessary to collect, issue the associated documents, and notify the debtors of the assignment. Under no circumstances may the ordering party assign the accounts receivable.
- If the value of the existing securities exceeds the secured claims by a total of more than 20 %, we shall release securities to that extent, at our discretion. The ordering party shall inform us without undue delay of any seizure or other impairments by third parties.
10. Liability for material defects
- We bear liability for the flawless manufacture of the parts that we deliver, in accordance with the agreed technical delivery specifications. The ordering party shall be responsible for proper construction (especially regarding intended use) under consideration of any safety regulations, choice of material, and required testing procedures; for the correctness and completeness of the technical delivery specifications and the technical documents and drawings handed over to us; and for the construction of the production devices provided; furthermore, even if we recommend changes to which the ordering party agrees, the ordering party shall ensure that no proprietary rights or other third-party rights will be breached by the information the ordering party provides. The contractual condition of the goods is defined at the point when risk is transferred.
- We will not be liable for insignificant deviations from the agreed quality; for insignificant impairments of usability; or for defects caused by unsuitable or improper use, faulty assembly or commissioning, or normal wear and tear. Neither will we be liable for improper alterations or maintenance work performed by the ordering party or third parties, or for the consequences thereof.
- The ordering party shall give written notice of material defects without undue delay after the goods are received at the intended destination, and of hidden defects without undue delay after the defect is discovered (§ 377 HGB (German Commercial Code)).
- If an acceptance procedure or inspection of initial samples has been agreed in accordance with item 6, notice may not be given of any defects that could have been detected during these inspections.
- We must be given the opportunity to verify the defect forming the object of complaint. In urgent cases when operational safety is at risk, or to keep the ordering party from suffering disproportionately severe damage, we shall verify the reported defect without undue delay. Contested goods must be returned to us on request without delay. If the ordering party fails to comply with those obligations or modifies already contested goods without our consent, the ordering party will forfeit any rights based on material defects.
- If a justified notice of defects is given in good time, we shall repair the contested goods or deliver a defect-free replacement (subsequent performance), at our discretion.
- If we fail to comply with our warranty obligations or do not meet these within a reasonable period, or if the subsequent improvement fails at first, the ordering party may set a grace period, in writing, during which we shall comply with our obligations. No grace period need be set if doing so would be unacceptable to the ordering party. If the grace period expires to no avail, the ordering party may at their discretion demand a reduction of the price; withdraw from the contract; or, at our cost and risk, perform the necessary subsequent improvement or have it performed by a third party. If the subsequent improvement is successfully performed by the ordering party or a third party, all of the ordering party’s claims will be compensated by reimbursing that party for the necessary costs they have incurred.
- If the ordering party relocates the goods after they have been delivered no expenses incurred in so doing may be claimed (even if those expenses were necessary to provide subsequent performance) to the extent they increase the costs, unless such relocation complies with intended use.
- The ordering party’s statutory rights of recourse against us exist only insofar as that party has not entered into agreements with its buyer beyond the statutory claims for defects.
- Additional claims of the ordering party are excluded in accordance with item 13.
- The ordering party shall bear the burden of proving any defect.
11. Order-related production devices; Parts to be cast
- Order-related production devices that the ordering party provides, such as models, templates, core boxes, moulds, casting tools, equipment, and control gauges, must be sent to us free of charge. We will inspect the production devices provided by the ordering party to make sure they match the contractual specifications or the drawings or samples handed over to us only on the basis of express agreements. We may modify the production devices provided by the ordering party if this appears necessary to us for reasons inherent to casting technology and the work piece is not changed thereby.
- The ordering party shall bear the costs for modifying, maintaining, and replacing its production devices.
- We shall handle and store the production devices with the same level of care we apply to our own affairs. We are not liable for the accidental loss or deterioration of the production devices. We may send back the ordering party’s production devices that we no longer need, at that party’s expense and risk, or, if the ordering party fails to comply with our request to collect those devices within a reasonable period, store them at the customary costs and destroy them after having set a reasonable period and given due warning.
- Order-related production devices that we produce or procure on the ordering party’s behalf will remain our property after the proportionate costs have been charged. We shall retain them for three years after the last casting. If, contrary to paragraph 1, it is agreed that the ordering party will be the owner of the devices, that ownership will be transferred to the ordering party when the agreed price or cost component has been paid. The handover of the devices is replaced by our retention obligation. The ordering party may cancel the storage arrangement two years or more after ownership is transferred unless there is an important reason not to.
- The ordering party may assert claims arising from copyright or industrial property rights only insofar as that party notifies us of the existence of such rights and expressly reserves the right to assert them.
- If a production device that can only be used once produces a reject, the ordering party shall either provide another production device or bear the costs of replacing it.
- Parts to be used by us for casting shall be supplied by the ordering with accurate dimensions and free from defects. The ordering party shall deliver replacements at no charge for any parts that become unusable due to rejects.
- Each contracting party shall use all the documents (including samples, models, and data) and knowledge it receives from the business relationship only for mutually pursued purposes, and shall keep them secret from third parties with the same care that party applies to its own documents and knowledge, if the other contracting party has designated them as confidential or has an obvious interest in keeping them secret.
- That obligation begins when the documents or knowledge is first received and will survive the business relationship by 36 months.
13. General limitation of liability
- Our liability for damage compensation will be limited under this item 13, regardless of legal grounds, but especially due to impossibility of performance, default, defective or incorrect delivery, breach of contract, breach of obligations during contractual negotiations, and tort, provided we are to blame in the respective case.
- We will not be liable for the ordinary negligence of our company boards and committees, legal representatives, salaried employees, or other vicarious agents, unless such negligence entails a breach of material contractual obligations. Material contractual obligations include the obligation to deliver or provide the respective delivery object promptly and without defects of title or material defects that might impair its functionality or usability more than insignificantly; and obligations to consult, protect, and exercise due care that are to enable the ordering party to use the delivery object contractually or aim to protect the life and limb of the ordering party’s personnel or protect its property from material damage.
- Insofar as we are liable for compensation on the grounds of and according to point b), that liability will be limited to damage that we foresaw – or ought to have foreseen if we had exercised customary diligence – as a possible consequence of a breach of contract when we entered this agreement. Indirect damage and consequential damage that result from defects of the respective delivery object are also compensable only if they can be typically expected when the delivery object is used as intended.
- Whenever we are liable for ordinary negligence, our obligation to pay compensation for material damage and resultant financial losses will be limited to the amount that will be compensated by the liability insurance we maintain, even if such negligence entails a breach of material contractual obligations. We shall provide the supplier with information about our insurance coverage on request.
- The aforementioned exclusions and restrictions of liability apply to the same extent to the benefit of our company boards and committees, legal representatives, salaried employees, and other vicarious agents.
- Any advice or technical information we provide outside our contractually owed scope of services will be given free of charge and under exclusion of any liability.
- The restrictions under this item 13 do not apply to our liability for willful conduct; guaranteed qualities; injury to life, limb, or health; or under the Product Liability Act.
14. Place of fulfilment; Place of jurisdiction
- If the ordering party is a merchant, the place of jurisdiction will be the Bad Lobenstein District Court. However, we are also entitled to bring an action against the ordering party before the court where their registered office is located.
- Unless otherwise specified in the order confirmation, the place of fulfilment for our services will be the location of our supplier plant. For payment obligations, the place of fulfilment will be Bad Lobenstein.
15. Applicable law
The legal relationship between the parties will be governed exclusively by German law under the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. (UNCITRAL/CISG)
16. Partial nullity
If individual provisions of these terms of delivery and payment are held to be ineffective or invalid, in part or in full, the contracting parties shall agree on a regulation through which the rationale and purpose pursued by the ineffective or invalid provision will be attained as far as possible.
17. Partnership clause
Any amount paid in compensation, especially for damages, should be determined in good faith while adequately considering the contracting parties’ economic situations; the type, scope, and duration of the business relationship; and the value of the goods.
Schubert & Salzer Feinguß Lobenstein GmbH
General Terms of Purchase (as at 01/01/2020)
I. Standard terms
The legal relationships between the supplier and Schubert & Salzer Feinguß Lobenstein GmbH (the Buyer) conform exclusively to these terms, and any other individual agreements, amendments or additions are required in writing. Other General Terms and Conditions shall therefore not apply even if they are not expressly contradicted in any specific case.
II. Quotes and orders
- The supplier’s quotes to the Buyer shall be free of charge and shall be made on the basis of a request from the Buyer. Any variations to this practice should be indicated separately.
- Supply contracts (order and acceptance) and call-offs, including changes and additions, must be made in writing. Call-offs may also be made by transmitting data remotely.
- Should the supplier not accept an order within a week of its transmission, the Buyer shall be entitled to withdraw it. Delivery schedules become binding if the supplier does not challenge these within five days of receiving them.
- The Buyer may request changes to the delivery items in design and finish within the bounds of what can reasonably be expected of the supplier. The effects of these changes particularly in terms of additional or reduced costs as well as delivery schedules shall be agreed appropriately by mutual consent.
III. Submitting invoices and payment
- Invoices shall be sent separately and without delay and should not be enclosed with dispatched items.
- According to our discretion, payment shall be made within 14 days with a 3 % discount, 30 days with a 2 % discount or 60 days net. This period will begin upon receipt of the goods and invoice. Payment deadlines shall not apply during our publicised company holiday periods. Payment deadlines for deliveries made early shall be treated as though they arrived on the scheduled delivery date.
- Payment shall be made by bank transfer or direct debit.
- If the delivery is incomplete or inaccurate, the Buyer shall be entitled to retain part payment until it is properly completed.
- The supplier shall not be entitled, without the prior written consent of the Buyer, which may not unreasonably be refused, to assign his accounts receivable against the Buyer or allow these to be recovered by third parties. Approval shall be deemed to have been granted for any extended retention of title.
If the supplier should assign his accounts receivable against the Buyer to a third party without the Buyer’s approval in contravention of sentence 1 of point 5, this assignment shall still be valid. However, the Buyer may then, at his discretion, discharge his obligation by making payment either to the supplier or the third party.
IV. Notice of defects
If the supplied goods are defective in some way, as soon as this has been factually ascertained in the proper course of business, the Buyer shall notify the supplier within a period of a week of discovering the deficiency – or in the case of obvious deficiencies, notify the supplier in writing a soon as delivery is made. In this way the supplier cannot raise any objection at a later date regarding notification of defects.
V. Maintaining Confidentiality
- Contracting parties will undertake to treat all details which are not obviously of commercial or technical nature, and which they become aware of as the result of their business relationships, as business secrets.
- Drawings, models, templates, samples and similar objects should not be made available or otherwise be made accessible to unauthorised third parties. Making copies of such objects is permissible only within the scope of business requirements and under copyright provisions.
- Subcontractors are bound by the same obligation.
- Contracting parties may only advertise their business relationship after receiving prior written approval.
VI. Delivery dates and deadlines
All agreed dates and deadlines shall be binding. The standard criterion for whether a delivery date or deadline is kept is the receipt of goods by the Buyer. If any such agreed delivery date is exceeded, this shall be regarded as late delivery. In the event of further cases, the supplier will be regarded as defaulting having received an appropriate warning from the Buyer.
VII. Late delivery
The supplier shall undertake to compensate the Buyer for any loss caused by delay. This shall also apply to loss of earnings and damage caused by disruption of operations and compensation claims for losses incurred by the Buyer’s customers and also, when a later deadline is set to no avail, or there is no further interest in the ordered goods on account of the delay in supplying the goods, for additional expenses to cover alternative purchases.
VIII. Force majeure
Force majeure, industrial disputes, unrest, regulatory actions and other unforeseeable, inescapable and serious occurrences shall release the contracting partners from their liabilities for the period of such disruption and according to the extent of their effect. This shall also apply if these events occur at a time when the contracting party affected is in default. Contracting parties shall undertake to provide the necessary information without delay within the bounds of what is reasonable and to adapt their obligations in good faith to the altered circumstances. Should such occurrences cause the Buyer to lose interest in the goods supplied, he shall be entitled to withdraw.
IX. Quality and Documentation
- The supplier shall adhere to the recognised codes of practice, safety regulations and technical specifications that have been agreed for the goods supplied. Any variations in the goods supplied require the prior written approval of the Buyer.
- If the goods supplied are subject to specific regulations and provisions, the supplier shall undertake to document their compliance with these exhaustively, and to make this documentation available to the Buyer upon request. Should the authorities require to check specific requirements by inspecting the Buyer’s production process or documentation, the supplier shall also be prepared to grant the Buyer the same rights to inspect within his operations and to afford him all reasonable assistance herein.
X. Liability for defects
- If defective goods are supplied, the Buyer may require the following if the particular legal conditions set out below apply, and provided that there is no alternative agreement:
a) Before manufacture commences (processing or assembly), the Buyer shall first give the supplier the opportunity to reject and eliminate defects or provide subsequent (replacement) deliveries of goods, unless this is unreasonable for the Buyer. If the supplier is not able to do this, or does not comply with this within an appropriate period stipulated by the Buyer, the Buyer may withdraw from the contract without setting a further deadline and return the goods to the supplier at his own risk. In urgent cases using information from the supplier, the Buyer can make good these defects themselves or by employing a third party. The costs arising from this will be borne by the supplier. If the same goods are repeatedly faulty when delivered, the Buyer shall be entitled to withdraw from the contract after written warning for defective goods repeatedly supplied including goods not yet delivered.
b) If, despite adhering to the obligations under Section IV (Notice of defects) the fault is only ascertained after manufacture commences, the Buyer may
– under § 439 sections 1, 3 and 4 of the German Civil Code, demand subsequent performance and refund of the necessary transportation costs for the replacement delivery, together with the costs of dismantling and assembly, including the cost of materials, or
- reduce the purchase price.
c) ) In the event of a culpable breach of obligations, the Buyer may also demand compensation for the consequential loss arising from such defects and for the Buyer to properly compensate his customer for the loss incurred. Consequential loss arising from defects is the loss which the Buyer himself has suffered for the supply of defective goods, other than the goods themselves, which are subject to legal protection.
- The supplier shall make the parts to be replaced available at his own expense without delay when required to do so by the Buyer.
- Claims on liability for defects shall lapse after 60 months from delivery to the Buyer. § 438 para 3 and para 4 respectively are applicable in this case.
- If the supplied goods are faulty, the Buyer’s claims arising from the law on product liability, tort and the conduct of business without due authority shall remain unaffected by this current Section X. In the same way, liability relating to previously agreed guarantees of quality and durability also remain unaffected.
- If the Buyer is the subject of a claim for liability regardless of fault based on law which cannot be varied by agreement in respect of third parties, the supplier’s responsibility in respect of the Buyer shall be to the same extent as if he were also directly liable. The principles of § 254 of the German Civil Code apply when apportioning compensation for loss between the Buyer and the supplier. This shall also apply in the eventuality of a direct claim by the supplier. Furthermore, the supplier shall be liable for compensating the Buyer for any loss he incurs as the result of legitimate claims made by his customers.
- No compensation shall be due if the Buyer has effectively limited his liability in respect of his customer. The Buyer will make every effort to agree on the limitation of liabilities within the permissible scope of the law, also on behalf of the supplier; however, the supplier may have no basis for a claim in this regard.
- The Buyer shall also have no claims if the loss can be attributed to the Buyer or his customers for failures in following handling, servicing or assembly instructions, inappropriate or improper use, incorrect or negligent treatment, natural wear and tear or faulty repairs.
- The supplier shall also be liable, to the extent of his liability, for the measures the Buyer takes to minimise loss (e.g. product recall).
- The Buyer shall without delay fully inform and consult with the supplier in the event that he wishes to make a claim against the former in accordance with the above regulations. He shall give the supplier an opportunity to investigate the circumstances of the loss. The contracting parties shall agree on the measures to be taken, particularly over proceedings for conciliation.
XII. Property Rights
- The supplier shall be liable for claims arising from infringements of property rights and property rights applications (copyrights) during the operation or the contractual use of the articles supplied, of which at least one of the family of property rights has been published either in the supplier’s own country, by the European Patent Office or in one of the states of the Federal Republic of Germany, France, Great Britain, Austria or the USA.
- He will exempt the Buyer and his customers from all claims arising from the use of such property rights.
- This shall not apply in the event that the supplier has produced articles made from the Buyer’s drawings, models or other similar descriptions and details passed to him by the Buyer, and that he is not aware or could not be aware that the products he has developed have thus infringed property rights.
- The Buyer shall be exempt from any claims made by third parties to the extent that the supplier has no liability under item 3.
- The contracting parties shall undertake to inform each other immediately they become aware of any risk of infringement or cases of alleged infringement, and to give themselves the opportunity to counter such claims in an amicable fashion.
- At the request of the Buyer, the supplier shall disclose the use of published and unpublished property rights relating to the article supplied, and those applied for, which are either his own or are held under licence.
XIII. The use of manufacturing equipment and the Buyer’s confidential data
Models, matrices, templates, samples, tools and other manufacturing equipment, as well as confidential data which the Buyer makes available to the supplier or which he pays for, can only be used for supplying goods to third parties with the prior written approval of the Buyer, and must be returned without dispute to the Buyer at any time following a reasonable request for this. After return, the supplier’s obligations to deliver such items shall be suspended, for the further manufacture and/or delivery of which he would require the returned items.
XIV. Retention of title
The Buyer acknowledges customary commercial and industrial standards in respect of the laws on retention of title. Provided that assignments are not disclosed in respect of the Buyer and are acknowledged by the supplier, he shall be entitled to make payment to the supplier in discharge of the debt.
XV. General provisions
- Should one of the contracting parties stop his payments or if insolvency or out of court settlement proceedings are instituted against his assets, the other party shall be entitled to withdraw from the part of the contract which remains unfulfilled.
- Should a single provision of these conditions, or of other agreements which have been made, be or become ineffective, the validity of the rest of the contract shall remain unaffected by this. The contracting parties shall undertake to replace the ineffective provision with an effective provision as close as possible to the original.
- The laws of the Federal Republic of Germany shall alone apply in the absence of any other agreement. The United Nations Agreement of 11/04/1980 relating to contracts on the international purchase of goods shall not apply.
- The place of execution shall be the Buyer’s registered offices. Other arrangements may be agreed for supplying the goods.
- The court of jurisdiction shall be the location of the Buyer’s registered offices.