of OBTEC GmbH
§ 1 Application area and key conditions
(1.1) The following conditions shall apply to all contractual relationships between us and the Contractor. They shall also apply at the time a offer is checked by the recipient of the offer documents, even if they should not submit a offer or we should not accept their offer.
(1.2) Only our general conditions of purchasing and ordering shall apply even when our order is confirmed by the Contractor in a deviating form from our own conditions and we do not contradict them. Deviations from our conditions, or also additional regulations in the Contractor's conditions, shall only apply if we expressly acknowledge them in writing.
§2 Offer documents
(2.1) All the documents provided for the processing of offers shall remain our property and shall be subject to copyright. They may only be transferred or made acceptable to the company employees involved in the creation of the offer. Forwarding to other members of the company or to third parties and / or reproduction or saving - in whatever manner - shall only be approved with our prior written approval.
(2.2) All the documents transferred for the purpose of creating offers shall be returned to us completely at the latest 3 (three) weeks after handover of an offer.
(2.3) No guarantee shall be given for the creation of offers, should nothing else have been agreed in writing.
§ 3 Contractual completion, change
(3.1) Delivery orders (order and acceptance) shall be made in writing. This shall also apply to additions and changes to delivery offers and these conditions.
(3.2) Our in-house and field service staff shall not be permitted to deviate or make additions to the content of the order and these conditions during or after contract completion. This shall not apply to approvals by our organs and authorised representatives; § 3.1 shall not be affected by this.
(3.3) Our written orders shall be confirmed immediately or, at the latest, within seven days or the dispatch data through the return of the signed order copy. If we do not receive a confirmation within the appropriate time, we shall be able to rescind the order within seven days.
§ 4 Prices, payment
(4.1) The prices named in the order and acceptance confirmation shall be binding fixed prices. If no prices are given in our order, then they shall be made in binding form in the confirmation. However, the contract shall not take effect if we revoke the price named in the confirmation within seven days.
(4.2) We shall be informed of intended price changes immediately, and they shall only be binding if we confirm them in writing. Point 3.2 shall apply.
(4.3) Invoices shall be immediately sent in for each delivery in triplicate, specifying all the additional indications required in the order for the order number, part designation, cost centre and delivery location of each individual item. The second copy of the invoice must be clearly labelled as a duplicate. If these conditions are not complied with, then, until clarification or completion by the Contractor, any invoices shall be considered as unissued.
(4.4) Payment shall be made after the complete arrival of the good or complete service and the arrival of the complete invoice documents, compiled correctly according to Point 4.3, and after the completion of invoice checking, for which we reserve a period of ten days. Payments according to item 1 shall be paid on the 5th, 15th and 25th of any month, minus the agreed discount - but with at least a 3 % discount - or paid net within 30 (thirty) days.
(4.5) Should the invoice be presented before the delivery or service, then the payment and discount period shall be aligned to the arrival of the good or acceptance of the service. If deliveries or services are accepted early, then the payment and discount periods shall be aligned to the agreed delivery or service date.
(4.6) If nothing else is agreed in the contract, then we shall pay in case (by bank transfer) or cheque.
(4.7) A transfer of the claims of the Contractor from the business relationships with us shall only be permitted with our prior written approval. However, it shall be considered as issued if the claim is transferred of the context of an extended property retention if the Contractor has agreed with their subsupplier.
§ 5 Delivery
(5.1) The delivery dates and deadlines shall be binding and must be complied with. Of key importance here shall be the arrival of the good in the reception location specified by us.
(5.2) If the Contractor - for whatever reason - is not able to meet a period or deadline, then they shall inform us of this without delay. We shall then be authorised to give the Contractor a period of grace for the delivery or service. Should the Contractor also not be able to comply with this period of grace, then we shall be authorised to withdraw from the contractor and, in the case of culpability on the part of the Contractor, shall be permitted to demand the reimbursement of the additional costs for timely spare part delivery or service provision through third-party companies.
(5.3) Other or further claims according to the statutory provisions for the case of untimely or non-provision of the service by the Customer, also those for damages, shall not be affected.
(5.4) Delivery and shipping shall be free from any expenses and at the cost and risk of the Contractor and shall be sent to the reception location named by us. The Contractor shall be responsible for transport insurance. In the case of all all deliveries, on shipment of each delivery, a message shall be sent specially to us with an exact designation of the content of the delivery.
(5.5) The provision location for all deliveries and services of the Contractor shall be the reception location specified by us.
(5.6) The shipping documents shall contain all the additional notes required in the order for the order number, part designation, cost centre and delivery location. If this data is not specified in all the shipping and freight documents, then we shall be permitted to refuse to accept the good or to reduce the invoice by a processing fee of 1 % (at least €25) for the obtaining of the missing data.
(5.7) For all railway shipments, the official determination of the weight, and particularly, in the case of carriage deliveries, official empty and full weights, shall be applied for (from Deutsche Bahn AG) at the departure and arrival stations. Also, in the case of ingots, plates, rings etc., the official counting of loaded items shall be applied for. In the case of truck deliveries, our weighbridge shall be used before and after delivery. Supplementary or insufficient deliveries, even with other confirmation by the Contractor, shall not be recognised. If a price ex works or from the sales warehouse of the Contractor has been agreed, the deliveries shall be transported at the lowest costs, unless we expressly specify a specific transportation type. The Contractor shall carry the additional costs for any accelerated transportation to comply with the delivery date. The Contractor shall pay any customs duties.
(5.8) The Contractor shall, at our request, take back empty goods and packaging free of charge, should nothing else have been agreed in advance.
(5.9) Goods shall always be accepted subject to the quantity, appearance and quality. The inspection of the goods shall not be understood as the delivery or acceptance. If, on delivery, damage to the packaging is determined, then we shall reserve the right to refuse the acceptance of the delivery without the inspection of the contents unless the insignificance of the scope of the damage can reasonably lead to the conclusion that the contents of the packaging cannot have been damaged. A return shall take place at the risk and cost of the Contractor.
§ 6 Right of property retention
(6.1) We hereby accept a right of property retention demanded by the Contractor, if it is rendered void with the payment of the remuneration agreed for the delivered object (retained good) (minus any discount) and we also are empowered to further process it (processing, combination, mixing) and to sell it onwards as past of normal business.
(6.2) As protection in the case of further processing and onward selling instead of the right of property retention, in the case that a right of property retention is effectively agreed according to Point 6.1, we shall surrender the receivable available to our recipients from onward selling of the newly-created object subject to goods' retention to the level of the invoiced amount of the appropriate retained good delivered by the Contractor. Should receivables against our recipient be part of an open invoice, then the surrender shall relate to the appropriate part of the balance, including the final balance from the current account.
(6.3) The Contractor shall hereby surrender the receivable surrendered to us according to Point 6.2 under the deferring condition that we pay the remuneration (minus any discount) invoiced for the appropriate retained good.
(6.4) We shall be authorised to collect receivables surrendered to the Contractor. A revocation of the allowance shall only be effective if and while there are payment obligations from the business based on the delivery of the appropriate retained good. Only under this condition shall the Contractor be permitted to demand that we inform them of the surrendered receivables and their debtors, disclose the surrender to the debtors or make this disclosure ourselves.
§ 7 Guarantee, protection rights, producer liability
(7.1) Our goods' acceptance inspection shall be limited to externally visible transport damage and the determination of compliance with the quantity and identity of the ordered products. We shall indicate any complaints hereby determined immediately and in writing. In addition, we shall inform the Contractor immediately and in writing of any delivery faults as soon as they are determined according to the conditions of normal business practice. However, there shall be no obligations to investigate or to give notice of defects before the complete delivery or service.
(7.2) With a faulty delivery or service, we shall, at our own discretion, be permitted to make claims for reworking or redelivery - if necessary using other constructions or material combinations - or the right to withdraw from the contract or reduce the price. Claims for damages due to incorrect deliveries or services according to the statutory conditions shall not be affected. If necessary, the Contractor shall perform improvement or redelivery work in multi-shift operation or through the use of overtime or public holiday work, if this is required for essential operating reasons for us and can reasonably be expected from the Contractor.
(7.3) Should the Contractor take too long to meet their obligations for reworking or if immediate reworking is necessary to meet our interests, then we shall - in the latter case, after informing the Contractor - be permitted to carry out the reworking ourselves or have it performed by third parties or to obtain a redelivery ourselves. In any case, we shall be permitted to eliminate or have eliminated minor defects, i.e. without the occurrence of the preconditions named in clause 1. The Contractor shall receive a report from us after completion of the reworking.
(7.4.) In every case, the Contractor shall carry the costs for reworking and redelivery.
(7.5) Irrespective of longer statutory deadlines, the statute of limitation for defect claims shall be 36 months, starting from the transfer of risk. The statue of limitation shall be extended by the period of the reworking and redelivery measures of the Contractor from the arrival of our defect information until they declare in writing that the measure has been completed or reject further reworking or redelivery in writing. In the case of in-house reworking or redelivery according to Point 7.3, the statute of limitation shall be extended up to completion of the reworking or redelivery.
(7.6) The Contractor shall provide the deliveries or services in a manner free from the rights of third parties. Irrespective of other fulfillment or warranty claims, they shall release the us from claims by third parties which result from the infringement of protection rights or protection right applications, published by the European or German parliament or in the Contractor's home country, during contractual use of the supplied items. This shall not apply if the Contractor produces items according to our drawings or other details or using our material provisions and they are unaware of or need not be aware of, on account of the products they have developed, the fact that they have infringed the protection rights of third parties.
(7.7) The Contractor shall be obliged to release us from claims of producer's liability according to German or foreign law, insofar as they are responsible for the errors triggering liability according to the rules of producer liability. If claims are made against us regardless of our liability or culpability, then the Contractor shall act as they were also directly liable.
(7.8) The regulations of §§ 478, 479 of the German Civil Code regarding intervention in the supplier chain shall not be affected.
§ 8 Material provisions, tools, moulds, etc.
(8.1) Material provisions delivered by us - also if they are invoiced - shall remain our property and shall be stored separately, labelled and managed as such. They may only be used for the orders executed by us. If there is any value reduction and / or loss of material provisions caused by the Contractor, then the Contractor shall provide a replacement; in the case of a delay in provision or delivery of the order execution, they shall also be liable without culpability.
(8.2) The processing or reformation of the provided material shall take place for us as the Customer. We shall become the immediate owner of the new or reformed item. Independently of this, the Contractor shall transfer the property of the completed item to us straight away, along with the intermediate production stages. They shall store the latter and the fully manufactured item for us with the care of a normal businessman until to handover to us.
(8.3) Tools, moulds, printing plates, drawings and other means of production produced by the Contractor at our expense shall be transferred to our property on their manufacture. In the case of a partial cost participation, we shall purchase a share of the property according to our portion of the costs. On our demand, the Contractor shall transfer the sole property rights against payment of their cost share (cost). The Contractor shall store these objects carefully, shall maintain or replace these items free of charge, in order to guarantee their use at any time.
(8.4) We shall receive the sole use of all the copyrights to drawings, samples and other production means manufactured at our behest. We shall reserve the right to publish work results of the Contractor ourselves or through third parties after to order processing. The work results shall be compiled solely for us. Publications by the Contractor shall only be permitted with our prior written approval.
(8.5) In the case of production difficulties or price differences to our detriment, the Customer shall be allowed to demand that resources, whose costs they have carried, are transferred either in whole or part, for free.
(8.6) In the case of liquidation or selling of the operation by the Contractor, any means of production, determined for execution of the orders issued by us, shall be handed over immediately. (8.7) The gauges provided by us for order execution shall simply be control gauges. The Contractor shall produce work gauges themselves.
§ 9 Confidentiality, protection rights
(9.1) All the technical data and other non-obvious commercial and technical information made known to the Contractor through the business relationships with us shall be treated confidentially by them. They shall only be used for the fulfillment of orders for us and only be made available to such employees of the Contractor as require involvement in order execution on account of the corporate circumstances of the Contractor. The same shall apply to means of production transferred to us or produced to our order or at our cost. Point 2.1 shall apply appropriately.
(9.2) Any subcontractors shall be obliged by the Contractor according to § 9.1.
(9.3) Samples, drawings, recipes, standard documents, printing templates, gauges, models, profiles, tools, moulds and other means of production may, just as objects manufactured after this, neither be handed over to third parties without our prior written approval nor be used for orders of third parties nor for the Contractor's own publicity purposes nor for their own purposes. They shall be secured against unauthorised viewing or use and must, if not otherwise agreed in writing, be returned to us in an orderly state at the latest on final delivery.
§ 10 Liability
(10.1) We shall only be liable in the following cases: In cases of intent or gross negligence of our own organs and leading employees; b) In cases of culpable negligence of key contractual obligations through our organs, leading employees and other assistants.
(10.2) The liability exclusions and restrictions contained in Point 10.1 shall not apply in cases of damage from the lethal or physical injury. In all cases of non-intentional damage causation, we shall only be liable to the level of the foreseeable, typical damage, with the exception of the damage named above.
§ 11 Product liability
(11.1) If claims are made against us due to the infringement of official safety regulations or due to national or international product liability regulations or laws because of faults of our product, which can be traced back to a good of the supplier, then we shall be authorised to demand damages from the supplier, insofar as they have been drawn into this through products they have delivered. This damage shall also comprise the costs of a preventive recall campaign.
(11.2) The supplier shall label the delivery objects in such a way that they can be recognised permanently as their products.
(11.3) The supplier shall carry out appropriate quality assurance which is suitable in its type and scope, according to the latest state of the art, and to prove this to us on request. They shall agree an appropriate quality assurance agreement, insofar as we consider it necessary.
(11.4) In addition, the supplier shall be obliged to present an insurance policy to a reasonable level against all the risks of product liability, including the return risk, to us on demand for viewing.
§ 12 Miscellaneous
(12.1) If the Contractor ceases their payments or should insolvency proceedings be instigated against their assets (either preliminary or final), then we shall be authorised to withdraw from the unfulfilled part of the order.
(12.2) The place of fulfillment for all the services in this contract shall be Menden in the Sauerland, Germany, if nothing else is agreed in these conditions.
(12.3) The place of jurisdiction for all disputes resulting from the business relationship between us and the Contractor, if they are the entrepreneur, shall be Menden in the Sauerland, Germany, or the head office of the Contractor at our discretion. However, legal regulations on the sole responsibility shall remain untouched.
(12.4) The relations between us and the Contractor shall be subject to the law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) as well any international agreements to be assumed in the laws of the Federal Republic of Germany shall not apply.
(12.5) The commercial and technical correspondence shall only be sent to the Procurement division, stating the order number, parts' designation and other identification codes.
(12.6) We wish to point out that our accounting system is run via an IT system and that, in this context, we also save the data received in connection with the business relationship with the Contractor.