General delivery and payment conditions for Silbitz Group (as at February 1st 2015)
(1) Our deliveries and services are made exclusively on the basis of the following general conditions of delivery and payment (hereinafter: conditions of delivery). These are parts of all contracts, which our companies, Silbitz Group GmbH, Silbitz Guss GmbH, ZGG – Zeitzer Guss GmbH, Silbitz Group Staßfurt AWS GmbH and Eurocast Košice s.r.o., conclude respectively with our contractual partners (hereinafter: purchasers) on the deliveries or services that we offer to them. Other conditions of the purchaser do not apply even if we are aware of them and carry out the delivery without reservation.
(2) Our conditions of delivery also apply for all future deliveries, services or offers to the purchaser, even if they are not agreed again separately.
1. Conclusion of the contract, scope of delivery
a) The offers submitted by us are not binding, unless otherwise stipulated in the order confirmation or unless we have declared otherwise in writing. A contract is only concluded if we have confirmed an order in writing or if we execute the order. Verbal commitments from our side before the conclusion of this contract are legally non-binding and verbal agreements of the contractual parties are replaced by the written contract, unless it is expressly stated therein that they will continue to be effective and binding. To comply with the written form specified in these conditions of delivery, the transmission using telecommunications per telefax or per e-Mail is sufficient.
b) Amendments and changes of the concluded agreements, including these conditions of delivery require the written form in order to be valid.
c) The specifications on the subject matter of the delivery or service (e.g. weights, measures, practical values, capacity, tolerances and technical data) contained in brochures and catalogues as well as our representations of the same (e.g. drawings und illustrations) are only approximately applicable, unless they are explicitly indicated as binding. They are no guaranteed characteristics, but descriptions or designations of the delivery or service.
d) We reserve the title and copyright to all offers and estimates of costs submitted by us, as well as to all drawings, illustrations, brochures, calculations, catalogues, models, tools and other documents and auxiliary means made available to the purchaser. Without our written consent, the purchaser may not make available these objects (per se or their contents) to third parties, or make them known, use them itself or by third parties or copy them, unless otherwise agreed. At our requests, the purchaser must return these objects completely to the latter and must destroy any copies which he may have made, if they are no longer needed by him in the proper case of business, or if negotiations do not result in the conclusion of a contract.
2. Pricing and conditions of payment
a) Our prices apply for the scope of services and deliveries listed in the order confirmation. Additional or special services will be calculated separately. The prices are given in EURO ex works plus the costs for packaging, the legal value added tax, freight, postal charges, insurance, customs duty in the case of exports and fees and other public costs.
b) If order-related costs change significantly after conclusion of the contract order-related, the contractual partners will agree on an adjustment.
c) Our invoices are, provided that nothing else was agreed, payable immediately without deduction.
d) The purchaser is only entitled to retain or to offset payments because of any counterclaims, if there are uncontested or finally determined counterclaims.
e) If we have delivered partially defective goods, the purchaser is nevertheless obligated to pay for the undisputedly non-defective goods, unless the partial delivery is of no interest to him.
f) If we are obligated to deliver in advance and, after the contract is signed, we become aware of circumstances, after which our payment claim is jeopardised by the purchaser’s lack of ability to perform, we may, besides the legal claims based on the reservation of title in agreed under point 9, prohibit the resale and processing of the delivered goods and demand their return or the transfer of the indirect possession in the delivered goods at the costs of the purchaser, and revoke the under the conditions of point 9 letter h). The purchaser authorises us now to enter his premises in such cases and to collect the delivered goods. The return of the goods will entail a withdrawal from the contract only if we expressly declare this.
g) In case of default of payment, we may upon written notification suspend the fulfilment of our obligations until the payment has been received, and we may make payable all remaining claims against the purchaser. Following a reasonable grace period, we are also entitled to withdraw from the contract in this case.
h) The purchaser has to bear all fees, costs and expenses incurred in connection with any successful prosecution against him outside Germany. We have the right to assign our claims against the purchaser to a third party.
3. Delivery time
a) Periods of delivery start with our order confirmation, but not until all details of the execution have been clarified and all until other the purchaser has fulfilled all other prerequisites; this also applies to delivery dates. Deliveries before the delivery time and partial deliveries are permissible, provided that this is not unreasonable for the purchaser. The delivery day is considered the day of the report of the readiness for dispatch, otherwise the day of dispatch. Unless agreed otherwise or arising from the contractual relationship, the, the delivery time we state is always non-binding.
b) Agreed periods of delivery und delivery dates will be postponed or extended, without prejudice to our rights resulting from the delay of the purchaser by the period that the purchaser is in arrears with his obligations.
If the purchaser is in default of acceptance or if he culpably violates other cooperation duties, then we are entitled, to demand compensation for the damage caused to us, including additional expenditures. In this case, also the risk of accidental loss or accidental deterioration of the goods will pass to the purchaser at the moment at which the purchaser gets into default of acceptance.
c) The occurrence of default in delivery is determined according to the legal provisions. A reminder by the purchaser is necessary in all cases.
4. Serial deliveries, long-term and call-off contracts
a) Permanent contracts may be terminated with a period of 6 months to the end of the month.
b) In the event of a substantial change of the wage, material or energy costs in long-term contracts (contracts with duration of more than 12 months and permanent contracts) after the first four weeks of the contract period, each contractual partner is entitled to demand a reasonable adjustment of the price in consideration of these factors.
c) Our prices are calculated on the basis of the agreed order quantity. If no binding order quantities have been agreed, our calculation is based on the agreed upon target quantities. If the order quantity or target quantity is undercut, then we are entitled to increase the price per unit by an appropriate amount.
d) In the case of call-off delivery contracts, when no other arrangements have been made, we are to be informed by call-off about binding quantities at least 3 months before the delivery date. Additional costs which are caused by the purchaser due to late call-off or subsequent alteration of the call-off with regard to the time or quantity are to be borne by the purchaser; in this respect our calculation is decisive.
e) In case of moulding facility production and/or serial production, an excess or short delivery of up to 10 % compared with the order quantity because of the specific features of the casting process is permissible.
f) Depending on the scope of the order, the total price will change.
5. Force majeure and other hindrances
a) Events of force majeure or other events unforeseeable at the time of the conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in procuring material or energy, transport delays, strikes, lawful lockouts, lack of manpower, energy or raw materials, difficulties in procuring the necessary permits from the authorities, regulatory measures or the missing, wrong or late delivery by suppliers) entitle us to postpone the delivery by the duration of the hindrance plus a reasonable start-up time or, if such events significantly impair the delivery or service or make them impossible and the hindrance is not only of temporary duration, to completely or partially withdraw from the contract
because of the part which is not yet fulfilled. We are not liable for the impossibility of the delivery or for delays in delivery that have been caused by such events and which are not caused by us.
b) Unforeseeable circumstances, e.g. operational disruptions, rejects and rework, which make it impossible for us to deliver on time despite all reasonable efforts, are equivalent to force majeure.
6. Test procedures, acceptance
a) If acceptance is agreed, the extent and conditions must be defined until the conclusion of the contract.
b) If this is not the case, the goods are considered as accepted, if
(i) the delivery is completed,
(ii) we have informed the purchaser about this with reference to the notional acceptance under this point 6 and have asked for acceptance,
(iii)  working days have elapsed since the delivery, or if the purchaser has started to use the goods (e.g. has commissioned the delivered article) and  working days have elapsed in this case since the delivery, and
(iv) the purchaser has failed to declare the acceptance within this time period for reasons other than a defect notified to us which renders the use of the goods impossible or significantly impairs the use.
c) If the goods are made available for collection, they are deemed to have been accepted by the purchaser, provided that we have notified the purchaser about the readiness for collection referring to the notional acceptance and  working days have elapsed since the notification.
d) The same applies for initial sample testings.
7. Measures, weights, quantities
a) Deviations in measures, weights and quantities within the scope of standard tolerances, applicable DIN standards and casting technical requirements are permissible.
b) For the calculation, the delivery weights determined by us are decisive.
8. Dispatch and transfer of risks
a) Unless agreed otherwise in writing, the delivery clause “ex works” (lncoterms 2020). This also applies, if we have obligated ourselves to take over the transport costs.
b) We will only provide transportation insurance cover for the delivery at the express wish of the purchaser; and any costs in this respect are borne by the purchaser.
c) Goods for which dispatch readiness has been notified shall be taken over immediately. Otherwise we are entitled to dispatch them at our discretion or to store them at conventional dispatch costs and at the risk of the purchaser. We are also entitled to the latter, if the von dispatch taken over by us cannot be carried out without our fault. One week after beginning of the storage, the goods are deemed to have been delivered.
d) In the absence of special instruction, the choice of the means of transport and of the transport route is made at our discretion.
e) With the transfer to the railway, the transport company or freight carrier, or one week after beginning of the storage, at the latest however with the departure from the plant or warehouse, the risk will pass to the purchaser, even if we have taken over the delivery.
9. Reservation of title
a) All delivered goods remain our property (goods subject to retention of title) until the settlement of all claims; in particular also those balance claims to which we are entitled from the business direction. This also applies if payments are made to specially designated claims. If the purchaser gets into default of payment, we are entitled to demand the return of the delivered goods. The costs hereof are borne by the purchaser. This does not apply in the event of insolvency proceedings having been filed or opened against the purchaser, in which instance we are not entitled to the immediate return of the delivered goods.
b) The return of the goods or exercise of the reservation of title will entail the withdraw from the contract only if we expressly declare this.
c) The purchaser always takes over the treatment or processing of the delivered goods for us. If the goods subject to retention of title are processed or inseparably connected with other objects that do not belong to us, we acquire co-ownership to the new object in relation of the invoice value of the other processed goods or intermixed objects at the time of the processing.
d) If our ownership expires due to combination or mixing, the purchaser transfers already now the ownership rights to the new stock or object to us in the scope of the invoice value of the goods subject to retention of title and holds them in custody on our behalf at no charge. The subsequently arising co-ownership rights are deemed to be goods subject to retention of title pursuant to letter a).
e) The purchaser may sell the goods subject to retention of title only in the normal course of business
at his standard business conditions and, as long as he is not in default, provided that the claims arising from the resale pursuant to the letters f) and g) pass over to us. The purchaser is not entitled to other to dispose of the goods subject to retention of title in any other way.
f) The claims of the purchaser resulting from the resale of the goods subject to retention of title are assigned to us already now. They serve to secure our claims to the same extent as the goods subject to retention of title. We hereby accept this assignment.
g) If the goods subject to retention of title are sold by the together with the other goods not delivered by us, the assignment of the claim resulting from such resale shall only apply in the amount of our invoice value of the respective sold goods subject to retention of title. In the event of the sale of goods in which we hold co-ownership shares pursuant to letter b), the assignment of the claim shall apply to the amount of these co-ownership shares. We hereby accept this assignment.
h) The purchaser is entitled to collect claims arising from the sale pursuant to letter e) and f) until this is revoked by us. We have the right to revocation in the cases stated in point 9, if the purchaser gets into default of payment, if an application for the opening of insolvency proceeding has been made or if payments have been suspended. In these cases, the purchaser is obligated to immediately inform us about the assigned claims and their debtors, to give all information necessary for the collection, to hand over the relevant documents and to inform the debtors about the assignment. Under no circumstances is the purchaser entitled to assign the claims.
i) If the value of the existing collaterals exceeds the secured claims by a total of more than 20 %, we are obligated to release collateral to this extent at our discretion. The purchaser has to notify us of a seizure or other impairments by third parties.
10. Liability for material defects
a) We assume liability for the flawless manufacture of the parts delivered by us pursuant to the agreed technical delivery specifications. In particular with regard to the intended use, the purchaser is responsible for an appropriate design, taking into account possible safety regulations, the choice of the material and the required test procedures, the accuracy and completeness of the technical delivery specifications and the technical documents and drawings handed over to us, as well as for the execution of the provided production facilities, even if changes are suggested by us which find his approval. The moment of the transfer of risks is decisive for the contractual condition of the goods.
b) We do not assume any liability for minor deviations from the agreed quality, or in the event of minor impairment of the usefulness, as well as for defects arising from unsuitable or improper use, incorrect assembly or commissioning and normal wear. If modifications or repair work have been carried out improperly by the purchaser or by third parties, there is no claim for warranty neither for these nor for the effects of the same.
c) The purchaser shall notify us in writing of material defects immediately upon receipt of the goods at the place of destination, and of any hidden defects immediately upon discovery.
d) In case of agreed acceptance or initial sample testing pursuant to point 6, any complaints with respect to defects, which could have been hereby discovered, is excluded.
e) We shall be given opportunity to verify the reported defect. In urgent cases where the operational reliability is at risk, or to avoid disproportionate damages to the purchaser, we have to determine the reported defect immediately. Defective goods have to be returned to us immediately upon request. If the purchaser does not meet these obligations or if he carries out modifications to the goods already notified as defective without our written consent, he will lose any claims for material defects.
f) In the event of justified complaint for defect made in due time, we will, at our discretion, either repair the goods in question or deliver flawless replacement (supplementary performance).
g) If we fail to meet our warranty obligations entirely or within a reasonable time, or if the rectification remains unsuccessful at first, the purchaser has to set in writing a final deadline, within which we must meet our obligations. Setting a deadline is not required if it would be unreasonable for the purchaser. After this deadline has expired unsuccessfully, the purchaser can demand at his own choice a reduction of the price, withdraw from the contract, or carry out the necessary rectification himself or by a third party, at our own cost and risk. If the rectification had been carried out successfully by the purchaser or by a third party, all claims of the purchaser for the costs incurred by him have been reimbursed.
h) Claims on the part of the purchaser for necessary expenses for the supplementary performance arising from the fact that the goods are moved to another after the delivery, are excluded, as far as they increase the expenses, unless the movement corresponds with the intended use.
i) Legal rights of recourse of the purchaser against us pursuant to § 478 BGB exist only insofar as the purchaser has not made any agreements with his customer – for the case that his customer is a consumer – beyond the statutory claims for defects.
j) Further claims of the purchaser are excluded pursuant to point 13.
k) It is the purchaser’s responsibility to prove a defect.
l) In case of defects at components of other manufacturers that we cannot rectify due to licence-related or actual reasons, we will at our discretion assert our warranty claims against the manufacturers and suppliers for the account of the purchaser or assign them to the purchaser. In case of defects of this kind under the other conditions and pursuant to these conditions of delivery, warranty claims against us exist only if the legal enforcement of the above-mentioned claims against the manufacturer and supplier was unsuccessful or if there is no reasonable change, e.g. due to an insolvency. For the duration of the legal dispute, the limitation of the concerned warranty claims of the purchaser against us is suspended.
m) The warranty is not applicable; if the purchaser modifies the goods without our written consent or has them modified by third parties, thus making the elimination of defects impossible or unreasonably difficult. In every case, the purchaser must bear the additional costs incurred due to the elimination of defects.
11. Order-related production facilities, cast-in parts
a) Order-related production facilities, such as models, templates, core boxes, ingot moulds, casting tools, devices and inspection gauges that are provided by the purchaser must be sent to us free of charge. The correspondence of the production facilities provided by the purchaser with the contractual specifications or drawings or samples handed over to us is verified by us only based on express agreements made. We may modify production facilities provided by the purchaser if this appears necessary to us for casting technical reasons and if the workpiece is not affected thereby.
b) The purchaser bears the costs for modification, maintenance and replacement of its production facilities.
c) We handle and keep the production facilities with the same level of care as that we would give to our own property. We are not liable for accidental loss or deterioration of the production facility. Production facilities of the purchaser that we do not need any more, can be sent back by us at his own expense and risk or – if the purchaser does not respond to our request for collection within a reasonable period – store them at conventional costs and to destroy them following a reasonable deadline and threat.
d) Order-related production facilities, which have been manufactured or purchased by us on behalf of the purchaser, remain our property even after invoicing the corresponding costs. We will store them free of charge for the period of 3 years after the final casting. Provided that is agreed deviating from paragraph 1 that the purchaser will become the owner of the facilities, the ownership will be transferred to him with payment of the agreed price or cost share. The transfer of the facilities is replaced by our obligation to store them.The purchaser can terminate the storage arrangement not earlier than two years following the transfer of ownership, provided that no important reason is given.
e) The purchaser may assert claims from a copyright or other property rights only insofar as he draws our attention to the existence of such rights and reserves them explicitly.
f) If rejects are produces when using a provided production facility which can only be used once, the purchaser must either provide a new production facility or bear the costs of the replacement facility.
g) Parts to be cast in by us must be delivered by the purchaser in the correct dimensions and in perfect condition. For parts that become unusable due to rejects, the purchaser must deliver a replacement free of charge.
h) The costs incurring for a re-sampling of the production facilities (requalification costs) after an interruption of the acceptance of inspected casting parts (delivery interruption) will be borne by the purchaser.
a) Each contractual partner shall use all documents (including samples, models and data) know-how obtained in connection with the business relationship only for the commonly pursued purposes and keep them confidential from third parties with the same care as corresponding own documents and know-how, if the other contractual partner has designated them as confidential has an obvious interest in keeping them secret.
b) This obligation commences with the initial receipt of the documents or know-how and ends 36 months after termination of the business relationship.
13. General limitation of liability
a) Unless provided otherwise below, any other and more extensive of the purchaser against us, for any legal reason whatsoever, are excluded, in particular for the breach of the obligations resulting from the contractual obligation and from unlawful act.
b) This limitation of liability does not apply in the case of mandatory liability, e.g. pursuant to the Product Liability Act, deliberate act, gross negligence of the legal representatives or executive employees, as well as in case of culpable breach of essential contractual obligations. In case of culpable breach of essential contractual obligations, we assume liability – unless in case of deliberate act or gross negligence of our legal representatives or executive employees – only for the reasonably foreseeable damage that is typical of the contract. Neither does it apply for damage resulting from injury to life, limb or health and when a warranted property is missing, if and to the extent that the guarantee aims to protect the purchaser against damage that has not occurred at the delivered goods themselves.
c) Insofar as our liability is excluded or limited, this also applies for the personal liability of our employees, workers, staff, legal representatives and vicarious agents.
d) Claims for compensation and material defects to which the purchaser is entitled against us, become time-barred on year after delivery of the goods at the buyer or, as far as an acceptance is required, upon acceptance. This does not apply for claims for damages that are based on the deliberate injury to life, limb or health, or claims for damages according to the Product Liability Act. The legal regulations concerning suspension, interruption and restart of the periods remain unaffected.
14. Place of performance and place of jurisdiction
a) If the purchaser is a merchant, the place of jurisdiction is the local court of Gera. However, we are also entitled to sue the den purchaser at his place of jurisdiction.
b) Unless otherwise provided by the order confirmation, the place of performance for our services is the place of our respective delivering plant. For payment obligations, the place of performance is the place of the respective delivering plant.
15. Governing law
The legal relationships between the parties are governed exclusively by German law, under exclusion of the UN Convention on Contracts and the International Sale of Goods (UNCITRAL/CISG).
In the event that individual provisions of these general conditions of delivery and payment should be wholly or partly invalid or void, the contracting parties undertake to agree to a provision which largely attains the purpose and objective of the invalid or void provision.
17. Partnership clause
At all compensation payments, in particular the amount of compensation for damages, should be based on good faith and should reasonably take into account the economic situation of the contracting parties, the type, scope and duration of the business relationship as well as the value of the goods.
Legal note with respect to data protection:
The purchaser acknowledges that we store data from the contractual relationship pursuant § 28 of the German Data Protection Act for the purposes of data processing and that we reserve the right to transfer the data, in so much as it is necessary, to third parties (e.g. insurances).
General Terms and Conditions of Purchase – valid from February 2015
1. Scope of application
(1) For all deliveries and services (hereinafter: deliveries) to our companies Silbitz Guss GmbH and ZGG – Zeitzer Guss GmbH., the following conditions of purchase apply exclusively. For our company Eurocast Kosice s.r.o. apply separately conditions of purchase. We do not accept any conditions that are contradictory to or deviating from our conditions of purchase, unless otherwise agreed in writing. Our conditions of purchase also apply when we accept the delivery of the supplier without reservation, with knowledge of conditions of the supplier or of a third party that are contradictory to or deviating from our conditions of purchase.
(2) All supplementary agreements that are made between us and the supplier in order to execute this contract must be put in writing in this contract.
(3) Our conditions of purchase also apply for all future deliveries and services to us, even if they are not agreed again separately.
2. Offer – offer documents
(1) Unless our offers contain expressively a commitment period, the supplier is obligated to accept our order within a period of two (2) weeks from the date of the offer. Decisive for the timely acceptance is the receipt of the statement of acceptance at our company.
(2) If we have not received a proper confirmation from the supplier after two (2) weeks from the order, we are entitled to revoke the order without giving reasons. The supplier cannot derive any claims against us from this.
(3) We are entitled to terminate the contract at any time by written notice with stating the reason, if we cannot use the ordered products anymore in our business operations due to circumstances arising after entering the contract. In this case, the supplier will be remunerated for the partial service provided by him.
3. Prices – terms of payment
(1) The price shown in the order is binding. In the absence of any deviating written agreement, the price includes any expenses in connection with the delivery to be provided by the supplier „ free point of delivery” including packing.
(2) Insofar as the price agreed upon price does not include packaging, and the price for packaging – which is not only provided on a loan basis – is not clearly agreed upon, the packing must be invoiced at the proven cost price. On our request the supplier must take back the packing at his own expense.
(3) The applicable rate of value added tax is not included in the price.
(4) Invoices can only be processed if the relevant purchase order number – as specified by us – is indicated. The supplier is responsible for all consequences resulting from the non-observance of this obligation unless he verifies that such consequences are not attributable to him.
(5) Invoices must always be sent separate from the goods to the respective company.
(6) Unless otherwise agreed in writing we will pay the purchase price within 20 days from the date of delivery and receipt of invoice with a 3% discount, or within 30 days with a 2% discount or net within 60 days after receipt of invoice. For late receipt of invoice the date of receipt shall apply for run of the discount period.
(7) We have the right to set off and retain to the extent permitted by law.
(8) In the event of default of payment we shall be liable for default interest in the amount of 5% above the base interest rate as defined in accordance with 247 BGB (German Civil Code).
4. Delivery time and delivery
(1) The decisive delivery time (delivery date or period) as indicated by us in the purchase order or otherwise according to these general conditions of purchase is binding.
(2) The supplier is obligated to notify us forthwith in writing if circumstances occur or become known to him that make it impossible to deliver according to schedule.
(3) In case of default in delivery we shall be entitled to legal claims. In particular we shall be entitled after fruitless expiration of a reasonable grace period, to claim damages instead of performance, or to withdraw from contract. If we claim damages, the supplier has the right to prove that the breach of obligations is not attributable to him.
(4) The supplier is not entitled to make partial deliveries without our previous written consent.
(5) The transport insurance will be von assumed by us, if we have committed ourselves to this in writing.
(6) The supplier is obligated to comply with the relevant export control regulations and to notify us in written form without being requested about the export control code of the products the latest with the delivery.
5. Acceptance and transfer of risk – Documents
(1) Unless otherwise agreed in writing, the delivery must be made free our point of use. The risk is only transferred to us – even if delivery has been agreed – when the goods have been delivered to us at the agreed destination. The receipt of goods is not considered as acceptance in accordance with legal regulations.
(2) In case of agreed assembly of the goods, the risk shall pass to us on successful completion of the acceptance. The commissioning or use, even within the framework of an agreed test run, does not substitute the declaration of acceptance.
(3) Surplus or short deliveries are accepted by us for customary products only up to 5 % of the ordered quantity.
(4) The supplier is obligated to indicate on all shipping documents and delivery notes the order number given in our order. If he fails to do so, we are not responsible for the resulting delay in processing.
6. Inspection of defects – responsibility for defects
(1) We are obligated, to inspect the goods with regard to possible deviations in quality and quantity within reasonable delay. The complaint is deemed timely, if it is received within a period of 10 working days, calculated from the receipt of goods, or in case of hidden defects from the time of their discovery at the supplier.
(2) We are entitled to the statutory liability claims in full. In every case we are entitled to claim from the supplier, at our discretion, rectification of the defect or delivery of a new item. The right to claim damages, in particular the right for damages instead of performance, remains explicitly reserved.
(3) In cases of imminent danger or in cases of special urgency, we are entitled to remove any defects ourselves at expense to the supplier.
(4) The statutory period of limitation is 36 months, counted from the transfer of risk.
7. Product liability – Indemnity – Liability insurance cover
(1) The supplier is liable for all claims that are made by third parties due to damage to persons or to property that arise from a defective product delivered by him, and is obligated to indemnify us from the liability resulting from this.
If we are obligated to initiate a product recall affecting third parties due to defects in one of the products delivered by the supplier, the supplier shall bear all costs caused by the recall.
(2) The supplier undertakes to maintain at his own expenses product liability insurance with a coverage amount of at least EUR 1.5 million per damage to persons/damage to property (lump sum). The supplier will send us on request at any time a copy of the product liability policy.
(3) The further liability of the supplier is not restricted by this agreement.
8. Other claims for damages
(1) Any claims for damages and reimbursement of expenses of the supplier are excluded. This does not apply insofar there is a compulsory legal liability, particularly in cases of intent, of gross negligence because of injury of the life, the body or of the health, or because of the infringement of essential contract duties. However, in cases of claims of compensation due to the infringement of essential contract duties, we are only liable for damage typical of the contract and which was reasonably foreseeable, provided there is no intend or gross negligence, or provided that there is no liability for injury of the life, the body or of the health. No change of burden of proof to the disadvantage of the supplier is connected with the preceding provisions.
(2) The statutory periods of limitation shall apply for claims for damages of the supplier from paragraph 1.
9. Legal requirements
(1) The supplier shall ensure that all legal and regulatory requirements are observed in his company, including the Hazardous Substances Ordinance and the safety recommendations of the responsible German professional bodies and associations.
(2) Furthermore, the supplier is obligated to inform himself about the current status of the applicable laws and regulations for the components of the delivery, and to observe them. Dangerous and hazardous substances according to the applicable laws and directives must reported separately by the supplier. Relevant safety data sheets have to be provided already together with the offer and during the respective first delivery with the delivery note.
Furthermore, any transgressions of substance restrictions and the delivery of prohibited substances must be reported immediately to ZGG.
(3) The observance of the accident prevention regulations during delivery is solely the responsibility of the supplier. Eventually required protective devices as well as instructions of the manufacturer must be added to the deliveries to ZGG free of charge.
10. Industrial property rights
(1) In conformity with paragraph 2, the supplier guarantees that in connection with his delivery, no rights of third parties are violated in connection with his delivery in countries of the European Union or in other countries in which he manufactures himself or by third parties the products.
(2) If we are held liable by a third party because of the violation of the commercial property rights named in paragraph 1, then the supplier is obligated to indemnify us upon the first written request against these claims. This does not apply, insofar as the supplier proves that neither he is not responsible for the violation of the property right, nor that it should have been known to him when exercising the due care of a diligent businessman at the time of the delivery.
(3) The obligation of the supplier to indemnify applies to all expenses that necessarily incur to us from or in connection with the claims asserted by a third party.
(4) For our claims resulting from the violation of property rights against the supplier, the statutory periods of limitation shall apply.
11. Reservation of title – provision of materials – tools – secrecy
(1) We reserve the title and copyright to all orders, instructions as well as any illustrations, drawings, calculations and other documents made available to the supplier. They may not be made available to third parties, nor may they be used or reproduced by third parties without our express written approval. They shall be used exclusively for the production based on our order. After the completion of the order, they have to be returned to us without prior request, if they are no longer needed for proper business procedures, or if negotiations are not leading to the completion of a contract. Any copies the supplier may have made of the documents must be destroyed in this case. This excludes any data stored pursuant to the statutory storage duties, as well as the storage of data as a back-up as part of usual data storage practice. Apart from that, they must be kept secret towards third parties.
(2) If we provide parts to the supplier, we reserve the title of these parts. Processing or alteration will be performed by the supplier for us. If the goods subject our retention of title are processed with other objects not belonging to us, then we shall acquire co-ownership of the new item in the ratio of the value of our item (purchase price plus VAT) to the other items that have been processed at the time at which they were processed.
(3) If the item supplied by us is intermixed inseparably with others not belonging to us, then we shall acquire co-ownership of the new objects in the ratio of the value of the reserved goods (purchase price plus VAT) to the other mixed objects at the time of mixing. If mixing is carried out in such a way that the item of the supplier to be regarded as the main item, then it is deemed agreed that the supplier assigns to us proportionate co-ownership; the supplier holds in trust either our sole or co-ownership.
(4) Tools, devices and models that we put at the disposal of the supplier or that are manufactured for contractual use and are invoiced separately to us by the supplier, remain our property or are passed on to our property. They have to be marked by the supplier as our property, to be store with care, to be protected against damages of any kind and to use them only for purposes of the contract. At the same time, the supplier already now assigns all claims for compensation from this insurance to us; we hereby accept such assignment. The supplier is obligated to perform any necessary service and inspection work on our tools, as well as all repair and maintenance work on the same, in good time and at his own expenses. He has to report possible failures immediately to us; if he fails to do so, damage claims shall remain unaffected.
On demand, the supplier is obligated to pass the objects on to us in proper condition, if he no longer needs them to fulfil the contracts concluded with us.
(5) The supplier is obligated to keep all provided illustrations, drawings, calculations and other documents and information in strict secrecy. They may only be disclosed to third parties with our explicit consent. The secrecy obligation shall also apply after the execution of this contract. It will expire if and as far as the manufacturing knowledge contained in the provided illustrations, drawings, calculations and other documents as become common knowledge.
(6) If the security rights available to us in conformity with sec. (2) and/or sec. (3) exceed the purchase price of all our still unpaid goods subject to retention of title by more than 10%, we are obligated on demand of the suppliers to release security rights of our choice.
12. Place of jurisdiction - place of performance
(1) The exclusive place of jurisdiction for all disputes arising from the contractual relationship is Gera. However, we are also entitled to take action at the domicile of the supplier.
(2) The place of performance for both parties is the place of receipt as designated in the respective order confirmation.
(3) Should individual provisions of these terms and conditions be invalid, the validity of the rest of the contract shall not be affected. Any invalid provision shall be replaced by the legal regulation.
(4) The contracts concluded between us and the supplier are subject to the law of the Federal Republic of Germany, under exclusion of the Convention on Contracts for the International Sale of Goods (UN Sales convention).
Legal note with respect to data protection:
The supplier acknowledges that we save data from the contractual relationship according to § 28 of the German Data Protection Act (Bundesdatenschutzgesetz) for the purpose of data processing, and that we reserve the right to transfer such data to third parties (e.g. insurance companies), in as much as it is necessary for the fulfilment of the contract.