General Terms and Conditions of Sale and Delivery for INGLAS GmbH & Co. KG
– “INGLAS” –
I. General provisions
- All supplies of goods and services, as well as all offers, from INGLAS – hereinafter referred to as the “Supplier” – shall be exclusively based on these General Terms and Conditions. They likewise apply to all future business relationships, even if they are not expressly agreed again. Any conflicting or differing general terms and conditions of the customer are not recognised.
- Documents related to offers and cost estimates, such as illustrations, drawings, weights and dimensions, are only approximate unless they are expressly designated as binding. The Supplier reserves the proprietary rights and copyrights to cost estimates, drawings and other documents; they may not be disclosed to third parties without the prior consent of the Supplier. Unless a contract is concluded, such documents are to be returned at our request without undue delay.
II. Scope of supply
- The Supplier’s written order confirmation shall be relevant for the scope of supply; in the case of an offer by the Supplier with a time commitment and acceptance of the offer within the specified period, the offer shall be relevant if no timely order confirmation has been received. Ancillary agreements and amendments require written confirmation from the Supplier.
- Partial deliveries are permissible, provided they are reasonable for the customer and not contrary to the purpose of the contract. Notice of unreasonable partial deliveries, as well as incorrect deliveries, shall be given without undue delay.
III. Prices and terms of payment
- Prices are stated ex works excluding packaging plus the applicable value added tax.
- If the Supplier has assumed responsibility for assembly or installation and unless otherwise agreed, the customer shall bear all necessary ancillary costs, such as travel expenses, costs for the transport of tools and personal luggage as well as allowances in addition to the agreed remuneration.
- In the absence of a special agreement, payments are due 30 days after invoicing, in cash to Supplier’s payment agent without deduction.
- The customer may only assert a set-off or rights of retention in relation to claims that are undisputed or have been determined by a final judgement.
- Unless otherwise agreed, payments by cheque, bill of exchange or a so-called cheque and bill transaction are accepted solely on account of performance. In such cases, fulfilment shall only occur upon redemption by cash payment or credit note, however at the earliest when which liability under a right of recourse lapses.
- The Supplier reserves the right to transfer or resell claims against the customer, in particular for the purpose of factoring and collection.
- The Supplier expressly reserves the right to invoice the costs of preparing offers and cost estimates on a time and materials basis.
- All claims of the Supplier shall become immediately due for payment if the customer stops payments, is overindebted or if a petition is made to commence insolvency proceedings or if the customer is in default of payment of bills of exchange or cheques that have fallen due. This applies likewise in the event of any other significant deterioration in the financial circumstances of the customer. In such cases, the Supplier is entitled to demand sufficient security or withdraw from the contract.
IV. Delivery time
- The observance of deadlines for deliveries presupposes the timely receipt of all documents to be supplied by the customer, necessary approvals, releases, signatures, in particular of plans as well as the observance of the agreed terms of payment and other obligations by the customer. The delivery period shall be deemed to have been met if the delivery item has left the plant or readiness for shipment has been communicated prior to its expiry.
- The delivery period shall be extended appropriately in the event of actions related to industrial disputes, in particular strikes and lockouts, as well as in the event of unforeseen obstacles which are beyond the control of the Supplier, insofar as such obstacles demonstrably have a considerable influence on the completion or supply of the delivery item. This shall also apply if the circumstances affect sub-contractors. The Supplier is likewise not responsible for the circumstances described above if they occur during an ongoing delay. In urgent cases, the Supplier shall inform the customer of the beginning and end of any such hindrances as soon as possible.
- If the customer suffers damage due to a delay for which the Supplier is at fault, it shall be entitled to claim compensation for the delay to the exclusion of further claims. Such damages equal one-half percent for each week or part thereof, limited however to no more than five percent of the value of that part of the total supply that cannot be used on a timely basis or in accordance with the contract as a result of the delay.
- If shipment is delayed at the request of the customer, commencing one month after notification of readiness for shipment, the customer will be charged for the costs incurred by storage at the Supplier’s works at a minimum of one-half percent of the invoiced amount for each month. However, the Supplier is entitled to otherwise dispose of the delivery item upon the expiry of a reasonable grace period it has set and to supply the customer within a reasonable, extended period.
- Compliance with the delivery period presupposes fulfilment of all respective contractual obligations by the customer.
V. Passage of risk and acceptance
- The risk of destruction, deterioration or loss of the delivery item shall pass no later than upon shipment of the delivery items to the customer or to the end user designated by the customer, even if partial deliveries are made or the Supplier has assumed other costs such as the costs of shipment or transport and installation. In the event that acceptance of the delivery item has been agreed in the contract, this shall be decisive for the passage of risk.
- If shipment is delayed due to circumstances for which the customer is responsible, risk shall pass to the customer on the day of readiness for shipment.
- If acceptance of the delivery is owed or agreed, the customer must examine the delivery without undue delay following receipt and assert any objections. If objections based on patent defects are not raised without undue delay, and no later than within 10 working days after receipt, the delivery is deemed to have been accepted. The same applies in the event that the customer does not perform an inspection or refuses to do so.
- The customer is not entitled to refuse acceptance/receipt of the delivery due on grounds of a minor defect.
VI. Installation and assembly
The following provisions apply to installation and assembly unless otherwise agreed in writing:
- The customer is required to bear its costs and provide the following on a timely basis:
- all ancillary work outside the respective industry segment including the related qualified personnel and labour, building material and tools;
- required equipment and consumables necessary for assembly and commissioning/start-up, such as scaffolding, lifting gear and other devices;
- energy and water at the point of use;
- sufficiently large suitable dry and lockable rooms at the place of assembly for the storage of machine parts, apparatus, materials, tools, etc. and appropriate working and recreation rooms including sanitary facilities appropriate to the circumstances for assembly personnel, otherwise the customer shall take the same measures for the protection of the possessions of the Supplier and assembly personnel at the construction site as it would take for the protection of its own property;
- protective clothing and protective equipment necessary based on special circumstances at the assembly sites.
- Assembly, operating and maintenance instructions must be checked by the customer immediately for understandability and accuracy. The Supplier must be informed without undue delay as needed. Affected work must be suspended until clarification of any problems of understanding that have arisen and any errors in the operating, assembly and maintenance instructions that have been identified.
- Prior to commencement of the assembly work, the customer shall provide the necessary information on the location of concealed power, gas and water lines or similar facilities as well as necessary structural data on its own initiative.
- Prior to installation or assembly, the materials and equipment necessary for commencement of work must be available on the installation or assembly site and any preparatory work must have advanced to such a degree that installation or assembly can be started as agreed and carried out without interruption. Access roads and the installation and assembly site must be levelled and cleared.
- If installation, assembly or commissioning is delayed due to circumstances for which the Supplier is not responsible, the customer shall bear the reasonable costs incurred for downtimes and any additional travel required of the Supplier or assembly personnel.
- The customer shall provide the Supplier weekly documentation of the number of working hours for installation personnel and the completion of the installation, assembly or commissioning without undue delay.
VII. Retention of title
- Goods are delivered subject to retained title (goods subject to retained title). The delivery item shall remain the property of the Supplier until all its claims against the customer arising from the business relationship have been fulfilled. If the value of all security rights to which the Supplier is entitled exceeds the amount of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security rights at the request of the customer.
- For the period during which title is retained, the customer may not pledge the goods subject to retained title or use them as security; resale shall be permitted only to resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customers or imposes the condition that title shall not pass to the customer until the customer has met its payment obligations in full.
- If the customer sells goods subject to retained title, it hereby assigns to the Supplier by way of security its future claims in relation to its customers arising from such resales together with all ancillary rights, including any account balance claims, without the need for any special declarations at a later date. If the goods subject to retained title are resold together with other items without an individual price having been agreed for the goods subject to retained title, the customer shall assign to the Supplier, with priority over the remaining claim, that part of the claim to the total price corresponding to the price of the goods subject to retained title invoiced by the Supplier.
- If a legitimate interest is substantiated, the customer shall provide the Supplier information necessary to assert its rights against the customers and supply all necessary documents.
- Until revoked, the customer is authorised to collect claims subject to assignment related to resales. The Supplier shall be entitled to revoke the customer’s right to collect provided there is good cause, in particular default of payment, cessation of payments, opening of insolvency proceedings, protest of a bill of exchange or if there are comparable indicators suggesting that the customer is insolvent. In addition, the Supplier may disclose the assignment for security purposes, recover assigned claims and demand that the customer disclose the assignment for security purposes to its customer, after prior warning to the customer that it will disclose the assignment for security purposes or recover the assigned claims upon expiry of a reasonable period.
- The customer is permitted to process, transform or combine goods subject to retained title with other items. Any such processing, transformation or combination is carried out for the Supplier. The customer shall store the new item for the Supplier with the care of a prudent businessman. The processed, transformed or combined item shall be deemed to be goods subject to retained title.
- In case of processing, transformation or combination with other items not belonging to the Supplier, the Supplier is entitled to a right of co-ownership in the new item to the proportion resulting from the ratio of the value of the processed, transformed or combined goods subject to retained title to the value of the other processed goods at the time of processing, transformation or combination. If the customer acquires sole ownership of the new item, the Supplier and the customer agree that the customer shall grant the Supplier co-ownership in the new item created by processing, transformation or combination in the ratio of the value of the processed, transformed or combined goods subject to retained title to the other processed, transformed or combined goods at the time of processing, transformation or combination.
- In the event of the sale of the new goods, the customer hereby assigns to the Supplier by way of security its claim against its customer from the resale with all ancillary rights, without the need for further special declarations. However, the assignment shall only apply to the amount corresponding to the value of the processed, transformed or combined goods subject to retained title invoiced by the Supplier. The portion of the claim assigned to the Supplier shall be satisfied as a matter of priority. Section 3 c) applies accordingly with regard to collection authority and the requirements for revocation.
- If the customer combines the retained goods with real estate or movable objects, the customer shall, without the need for further declarations, likewise assign its claim to which it is entitled as remuneration for the combined item to the Supplier by way of security, together with all ancillary rights, in the amount of the relationship of the value of the combined retained goods to the other combined goods at the time of combination. The portion of the claim assigned to the Supplier shall be satisfied as a matter of priority. Section 3 c) applies accordingly with regard to collection authority and the requirements for revocation.
- The customer shall notify the Supplier of any seizure, confiscation or other dispositions or interventions by third parties without undue delay.
- In case of a culpable violation of material contractual obligations by the customer, especially in case of default of payment, the Supplier is entitled to retake possession of the goods following a warning to such effect. The customer is obligated to surrender the goods. Retaking possession or the assertion of the reservation of title or attachment of the goods subject to delivery by the Supplier does not represent withdrawal from the contract unless the Supplier has expressly declared its withdrawal. After prior warning, the Supplier is entitled to dispose of repossessed goods subject to retained title and to satisfy its claims from the proceeds subject to offset for outstanding claims.
VIII. Investigation of defects and warranty
- The customer shall inspect the products subject to delivery without undue delay upon receipt, provided that this is feasible in the ordinary course of business, and, if a defect is found, shall notify the Supplier without undue delay.
- If the customer fails to notify us, the goods will be deemed to have been accepted unless the defect was not identifiable during inspection.
- The Supplier is liable for defects related to the delivery to the exclusion of further claims as follows:
- All parts or services that, within 12 months from the date of the passage of risk, do not have the contractually agreed or assumed quality as a result of a circumstance existing prior to the passage of risk, without limitation including faulty design, poor materials or defective workmanship, or are not suitable for normal use or do not have a quality which is usual and expected for items of the same type, or are otherwise defective from a legal standpoint, shall be repaired or replaced (supplementary performance) free of charge at the discretion of the Supplier. The warranty period for used parts is six months. The Supplier must be informed of the discovery of defects in writing. For essential third-party products, the Supplier’s liability is limited to the assignment of the liability claims to which it is entitled against the provider of the respective third-party product.
- After consultation with the Supplier, the customer must give the Supplier the necessary time and opportunity to carry out all repairs and replacements (supplementary performance) which the Supplier deems necessary in the reasonable exercise of its discretion. The Supplier is released from liability for defects in all other cases. The Supplier is entitled to refuse supplementary performance to the extent that this is would require disproportionate costs or disproportionate effort. In specific cases, the Supplier may demand that rejected parts and other supplies be sent to the Supplier for repair. Only in urgent cases of risks to operational safety and to prevent disproportionately high damages – whereby the Supplier must be notified immediately in such cases – or if the Supplier is in default of curing the defect concerned, shall the customer have the right to cure the defect itself or have it cured by third parties and to demand reimbursement of necessary costs from the Supplier. Replaced parts shall become the property of the Supplier. The warranty period for replacement parts and repairs is six months, provided that such period shall run at least until the expiry of the original warranty period for the relevant supply of goods or services. The limitation period for liability for defects in the relevant supply of goods or services shall be extended by periods related to attempts a cure.
- Of the direct costs arising from a repair or replacement delivery, the Supplier shall, provided that the complaint proves to be legitimate, bear the costs of the replacement part, including shipment, as well as the reasonable costs of dismantling and installation, and furthermore, if this may be reasonably demanded in the respective case, the costs of any necessary provision of installers or other labourers within the scope of a lawful cost ceiling to be agreed separately. The customer shall bear the costs in all other cases. The customer shall also bear any additional costs arising from the fact that the repair or replacement delivery carried out by the Supplier is performed at a place other than the contractual place of delivery, for example at the customer’s end customer. Costs incurred by the Supplier as a result of illegitimate complaints concerning supplies of parts and services are to be borne by the customer to a reasonable extent.
- No guarantee is given for natural wear and tear and component-specific wear and tear, unless such wear and tear does not correspond to the technical standard for expendable parts or relates to damage occurring after the passage of risk for the following reasons:
- external influences, such as liquid, humidity, vibrations and similar factors, unsuitable, improper use, transport or storage, faulty assembly or commissioning by the customer or third parties, faulty or negligent handling, in particular due to inappropriate operating materials or replacement materials, defective work, inappropriate foundations, chemical, electrochemical, electrical influences, as well as non-reproducible software errors.
- If improper modifications or repair work have been performed by the customer or by third parties, no warranty shall be provided for such modifications or work and the resulting consequences, provided that the customer does not refute an appropriately substantiated allegation that one of the circumstances referred to above is caused the defect. No warranty is assumed for parts provided by the customer. The Supplier shall only be liable for faulty work carried out by personnel provided by the customer if the Supplier has given faulty instructions or violated its duty of supervision.
- In the absence of any express contractual agreement to the contrary, specifications regarding the quality, performance and durability of supplies of goods are services described in the offer, order confirmation and other contractual documents (e.g., technical data sheets, operating, maintenance and installation instructions, other written and graphic descriptions of the respective item) shall not be deemed to be a guarantee of quality and/or durability. The Supplier is not liable for advertising statements and other public statements in connection with supplies of goods and services, even if made by third parties.
- The Supplier shall be liable for supplementary performance to the same extent as for the original supply.
- The customer has the right to choose between a reduction in price or withdrawal from the contract if the supplementary performance concerned is not performed in accordance with the preceding provisions or an attempt at supplementary performance fails. Additional claims on the part of the customer related to defects are excluded, including without limitation compensation for consequential damages, such as loss of production and use as well as lost profits. The foregoing does not apply to the extent that liability is mandatory for personal injury or damages to privately used items under the Product Liability Act and in cases of wilful conduct, gross negligence or breach of material contractual obligations.
This is without prejudice to the provisions of Section X (Liability).
IX. Defects of title, industrial property rights and copyrights
If a third party asserts a legitimate claim against the customer due to an infringement of industrial property rights or copyright (hereinafter referred to as “proprietary rights”) on the part of products delivered by the Supplier and used in accordance with the contract, the Supplier shall be liable to the customer as follows
The Supplier shall, at its own expense and at its own discretion, either obtain a right of use for the product, modify the product so that the proprietary right is not infringed or may replace the product. The customer is entitled to withdraw from the contract if this is not possible for the Supplier to achieve under economically reasonable conditions. The Supplier shall likewise be entitled to withdraw from the contract under the circumstances described above. In addition, the Supplier shall indemnify the customer against undisputed or legally established claims of the respective owners of the proprietary rights.
The obligations of the Supplier described above shall only apply if the customer notifies the Supplier of any such claim asserted by a third party in writing and without undue delay, does not concede any instance of infringement and leaves any defensive measures and settlement negotiations to the discretion of the Supplier. If the customer stops using the product for reasons of damage mitigation or other good cause, it is obligated to inform the third party that the cessation of use does not imply the acknowledgement of any infringement of proprietary rights.
Claims of the customer are excluded if it is responsible for the infringement of the proprietary right concerned. Claims of the customer are further excluded to the extent that the infringement of a proprietary right is related to the specific specifications of the customer and an application that was not foreseeable by the Supplier or was the result of the circumstance that the customer modified the product or used it with products not supplied by the Supplier.
Additional claims against the Supplier are excluded.
The customer may withdraw from the contract in cases where full performance on the part of the Supplier becomes definitively impossible prior to the passage of risk or in cases where adherence to the contract may no longer be reasonably expected of the customer on other grounds.
Provided that mandatory provisions of law would do not conflict, all additional claims on the part of the customer, in particular conversion, termination or reduction, are excluded. Claims for damages on the part of the customer, irrespective of the legal grounds, due to breach of duties arising from the contract and impermissible acts are excluded. The foregoing does not apply in cases of mandatory liability, e.g. under the Product Liability Act, and in cases of wilful conduct, gross negligence or breach of material contractual obligations.
In the cases of damages not suffered by the delivery item itself, irrespective of legal grounds, the Supplier is only liable in cases of
- wilful conduct;
- gross negligence;
- culpable injury of life, limb or health;
- or in the case of defects which have been fraudulently concealed;
- or if the Supplier has provided a guarantee of quality and/or durability.
- With the exception of bodily injury (injury to life, limb, health), liability in the case of simple negligence is limited to foreseeable damages typical to the contract, limited however in any case to the coverage sum of the business liability insurance taken out by the Supplier (€ 2 million). The foregoing provisions do not imply a change in the burden of proof to the detriment of the customer.
XI. Product liability
If the customer, or their customers, resell the Supplier’s products to countries outside the European Economic Area, in particular to the USA, they must indemnify the Supplier against all third-party product liability to the extent they go beyond European product liability regulations.
XII. Design changes
The Supplier reserves the right to make design changes at any time. However, it is not obligated to make such changes to products that have been previously delivered.
XIII. Final provisions
Any and all amendments and additions to this agreement must be made in writing in order to be effective.
The place of performance for all obligations of both parties arising from their contractual relationship is Friedrichshafen.
The exclusive place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship is Friedrichshafen.
The relationship between the Supplier and the customer shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Should any provision of this contract be or become invalid in whole or in part, or should there be a gap in this contract, this shall not affect the validity of the remaining provisions. An appropriate provision shall be deemed to have been agreed in lieu of the ineffective provision or to fill the respective gap that, to the extent legally permitted, comes closest to what the parties intended.