General Terms and Conditions (GTC)
GTC to Business Customers
§ 1 Scope
The following General Terms and Conditions (GTC of Sale to Business Customers) are definitive and govern the contractual relationship between the Vendor mbo Osswald GmbH & Co KG, Steingasse 13, 97900 Kuelsheim-Steinbach (Tel. +49 (0) 9345/670-0, Fax +49 (0) 9345/6255, firstname.lastname@example.org) and the respective purchaser. The term contractual relationship means any concluded contract on the basis of which the Vendor is required to provide deliveries of goods and services to the Purchaser. All agreements affecting the contractual relationship must be concluded in text form in order to be effective. In particular, any ancillary agreements or assurances must be confirmed in text form by the Vendor. By placing its order, the Purchaser expressly confirms that it is aware of and accepts the Vendor's present General Terms and Conditions.
Purchasers may only be enterprises. An enterprise is a natural or legal person or a partnership with legal capacity that, in concluding a legal transaction, is pursuing its commercial or independent professional activities (§ 14 German Civil Code (BGB)).
The Purchaser's own terms and conditions are herewith excluded unless agreed to the contrary in writing between the parties.
§ 2 Object of the contract
The object of the respective contract is the sale of goods by the Vendor to the Purchaser and, possibly also, the manufacture and/or adaptation of goods in accordance with the Purchaser's wishes.
Any special wishes and instructions regarding the manufacture of goods in accordance with customer specifications must be communicated in writing.
§ 3 Contract offer and conclusion of contract
Offers are made without obligation. The specifications made in brochures, advertisements, price lists or the specifications in documents that form part of the offer are non-binding unless they are expressly declared to be binding in the order confirmation.
Contracts concluded via the Vendor's Internet portal https://www.mbo-osswald.de are subject to the separate Shop General Terms and Conditions for corporate customers that can be found on the Vendor's web site at https://www.mbo-osswald.de/en "GTC Online Shop - B2B".
With regard to contracts concluded via the Internet portal, purchasers are informed that their personal data required for the handling of the contract and purchase order will be stored on data media and processed. Transfer to the payment service provider PayPal is also performed exclusively for the above purpose of handling the contract and purchase order. It is expressly stated that data is not transferred to third-parties for any other purpose (e.g. advertising).
Purchasers can find further details, including on their rights as data subjects, in the Vendor's data protection declaration.
§ 4 Prices
All prices are stated net in euros plus any sales tax that may be applicable. This is shown separately in the invoice. The Vendor reserves the right to charge a surplus for small quantities
The prices do not include ancillary services provided by the Vendor (e.g. provision, assembly, installation or execution), ancillary costs (e.g. packaging, packaging materials), transport costs, carriage, custom duties, freight, taxes and insurance costs.
Orders for which no expressly fixed prices have been agreed will be calculated at the list prices applicable on the day of the delivery.
In the event of any major changes in the price factors wages, raw materials and tool costs or other operationally relevant costing factors (e.g. taxes, etc.) then the prices will be increased to compensate for the above-mentioned increases in prices and costs. Both the Vendor and Purchaser may demand the renegotiation of the price. The Purchaser will be informed of price changes in text form at the latest 30 days before they take effect. In the event of price increases amounting to more than 5% of the current price, the Purchaser has the right of extraordinary termination at the time the new price becomes effective.
In the case of overseas business and prices quoted in a foreign currency, the Purchaser will bear the consequences of any changes to the agreed foreign currency or the euro exchange rate that occur after conclusion of the contract. (corresponds to the date of order confirmation).
§ 5 Execution of the contract and delivery
Deliveries are always made at the Purchaser's risk and expense. At the Purchaser's request, the Vendor is entitled, but not obliged, to insure the goods at the Purchaser's expense.
Delivery dates are binding only if the Vendor has expressly confirmed them as binding. The delivery period starts with the conclusion of the contract. The delivery is deemed to have been made within the specified period if the goods leave the factory or warehouse within the period. If dispatch or pick-up are delayed for reasons for which the Vendor is not responsible then the specified period is deemed to have been respected if the notification of readiness for shipping was issued within the agreed period.
If it is not possible to deliver an ordered item because the Vendor has, through no fault of its own and despite the supplier's contractual obligations, not been supplied by its supplier or, in the event of a fixed date transaction, has not been supplied in good time, thus constituting an impediment to performance that is not merely temporary, then it is entitled to withdraw from the contract. In this case, the Vendor will immediately inform the Purchaser without delay that the ordered goods are no longer available and reimburse any amounts that have already been paid.
If the Vendor or its suppliers are unable to respect agreed deadlines due to temporary impediments to performance for which they are not responsible, such as, for example, force majeure, industrial disputes, natural disasters, shortages of energy or raw materials or insurmountable traffic disruption, then the period will be extended by the duration of the temporary impediment to performance and the Vendor will notify the Purchaser without delay in such cases.
Partial deliveries are permitted provided that they are possible and reasonable for the Purchaser in each individual case. In the event of the conclusion of contracts that involve partial deliveries, as well as in the case of continuous deliveries, the Vendor must be informed in text form of call-offs and special batching requirements. If the Purchaser's individual call-offs exceed the contractually agreed amount then the Vendor is entitled to deliver the excess amount after verifying its delivery capability. The Vendor can invoice the excess amount at the prices applicable at the time of the call-off or delivery. The delivery quantities for call orders must be distributed uniformly over the period of the contract and must be accepted by the Purchaser in this way.
When delivering drawing parts, the Vendor reserves the right to a tolerance of +/- 10% in terms of quantity.
Any material procured by the Purchaser for the purposes of executing the contract must be sent to the Vendor. The Vendor makes no guarantee in respect of quantity and quality specifications relating to the material procured by the Purchaser. In the case of larger quantities, the costs and warehousing expenses resulting from the transfer are to be reimbursed. If the Purchaser makes raw and auxiliary materials available then the packaging material and waste remain the property of the Purchaser. It is the Purchaser's responsibility to ensure the elimination and disposal of these materials and bear the associated costs if this is demanded by the Vendor. The Purchaser must arrange for the insurance of the raw and auxiliary materials, samples, originals or other objects supplied to the Vendor. This also applies to paid-for finished goods that are stored by the Vendor on the Purchaser's behalf.
Note for industrial customers in accordance with packaging legislationIn order to increase the amount of material returned, the seller is required to take back packaging that is not subject to licensing from the purchaser free of charge. This includes transport packaging (including pallets) and outer packaging that would not arise as waste for the purchaser as well as other types of packaging listed in § 15 of the German Packaging Act. The seller’s obligation to take back material relates to packaging that has been emptied of all goods and is of the same type, shape and size as that originally received by the purchaser and was used for goods that the seller includes in its range.
The packaging can simply returned in the same form as it was shipped at the place of handover. In the case of recurrent deliveries, the purchaser can simply return the packaging at the time of the next delivery in the same form as that in which it was shipped.
§ 6 Invoicing
Purchasers will be invoiced electronically unless agreed otherwise with the purchaser. Invoices will be sent by e-mail.
§ 7 Liability
The Vendor has unlimited liability for loss or damage caused with malicious intent or due to gross negligence, for the fraudulent concealment of defects, the acceptance of warranted properties, claims resulting from product liability legislation as well as in the event of loss of life, physical injury or impairment to health.
The Vendor is not liable for any other loss or damage caused as a result of minor negligence on the part of the Vendor, a legal representative or vicarious agent. In the event of the violation of important contractual obligations whose correct discharge is essential for the execution of the present contract and on the respect for which the Purchaser should be able to rely (cardinal obligation), the Vendor's liability is limited to compensation in respect of loss or damage that is typical of the contract and foreseeable, provided that this is attributable to minor negligence.
The above provisions apply to all claims for loss or damage, in particular when compensation is claimed in addition to performance or when compensation is claimed instead of performance, irrespective of the legal basis and in particular due to defects, the violation of obligations resulting from the contractual relationship and claims based on tort.
The legal provisions under which the Vendor is liable for certain activities or omissions even in the absence of negligence are unaffected by the above exclusions and limitations of liability.
The parts delivered and/or manufactured by the Vendor are not intended for use in the aviation industry or for incorporation in airborne bodies. The Purchase therefore undertakes not to use the parts delivered and/or manufactured by the Vendor in these sectors. The Vendor will assume no liability if the Purchaser fails to respect this obligation. The Purchaser undertakes to indemnify the Vendor absolutely and without delay against any claims by third-parties.
§ 8 Warranty
The Vendor's liability in respect of defective goods is set out in the statutory provisions of German commercial legislation (§§ 434 ff. of the German Civil Code (BGB)).
Claims arising out of § 437 of the German Civil Code expire after a year as of the delivery of the ordered goods to the Purchaser, provided that the goods are not used goods. The shortened warranty period does not apply to claims made by the Purchaser in respect of which the Vendor has unlimited liability by virtue of § 6 of the General Terms and Conditions. The expiry periods in accordance with §§ 438 para. 1 No. 1 and 2, 479 para. 1 and 634 a para. 1 No. 2 of the German Civil Code are unaffected. In all other cases, the statutory warranty period as of delivery to the customer applies.
Any rights of recourse arising out of § 445a of the German Civil Code also expire a year after delivery of the ordered goods.
In the event that delivered goods are replaced or repaired, the period of limitation is only resumed when the Vendor accepts the defective nature of the replaced or repaired goods.
The Vendor is free to choose whether to eliminate the defect or supply replacement goods free of defects in accordance with § 439 para. 1 of the German Civil Code.
In the event of a mutual commercial transaction under the terms of the German Commercial Code, the Purchaser will examine the ordered goods immediately following delivery. This applies in particular to the completeness of the goods as well as to their correct functioning. Any defects identified during this examination or that are otherwise immediately identifiable must be notified to the Vendor without delay. A detailed description of the defects must be provided together with the notification. If the Purchaser makes no such notification then the goods are deemed to be approved except in the event of defects that were not detectable during the examination.
Defects in the goods that were not detectable during the examination conducted as required in accordance with the provisions above must be notified to the Vendor without delay immediately after their discovery, provided that the transaction is a mutual commercial transaction. Otherwise the goods are considered to be approved even in the presence of this defect.
For agreements on the properties of goods as the basis for liability for defects, see the separate document "General Terms and Conditions of Sale - Technical". This can be consulted online at https://www.mbo-osswald.de/en "GTC of Sale - Technical".
In the case of bulk items or small parts delivered in large quantities, the Vendor accepts no liability for missing quantities of up to 3%. The same applies if no more than 3% of the delivered parts are defective. This also applies to drawing parts or products that are manufactured in accordance with the Purchaser's wishes.
Warranty claims are also excluded if:
a. a defect has its origin in material made available by the Purchaser
b. the origin of the defects in the parts can be attributed to the employed raw materials
c. changes in shape, cracks or impairments of dimensional accuracy or precision of fit occur as a result of processing due to the failure of the Purchaser to provide the necessary specifications
d. in the case of deliveries based on a specimen or sample, the delivered parts correspond to the specimen or sample
e. the Purchaser further processes the delivered parts despite identifiable defects
f. the Purchaser makes repairs to, modifies or in other ways intervenes on the parts itself or arranges for third-parties to do so without the Vendor's agreement
g. the Purchaser demands a processing method that is not consistent with technical standards or knowledge
h. the Purchaser has omitted to maintain or exercise its rights of recourse against third-parties against which the Vendor itself has claims and is prepared to assign these to the Purchaser, providing that the Vendor is not responsible for the defect or the assigned right fails to bring satisfaction, or the assigned right has already expired at the time when the defect occurs or the Vendor does not or cannot provide information about which party is responsible for the defect.
If materials processed by the Vendor are used in a construction operation then their processing by the Vendor does not constitute a construction-related service unless the Purchaser has expressly commissioned the Vendor in text form to provide a construction-related service for a specific construction project that must be designated in greater detail.
If the Vendor allows an appropriate, defined extension period to expire without replacing the goods or eliminating the defect or if the corrective work fails, then the Purchaser has the right to demand a reduction of the remuneration or, at its own discretion, the annulment of the contract.
In the case of replacement deliveries or corrective work, the Vendor is liable to the same extent as for the original object of the delivery.
§ 9 Payment conditions and arrears
The Purchaser is in arrears if it has not made payment within 30 days of the date of invoice. If, at the Purchaser's request, the Vendor provides large quantities of raw and auxiliary materials then it may also demand immediate payment. Partial payments may be demanded depending on the scope of the work performed.
If the Purchaser fails to make payment by the due date then interest will be charged on the purchase price at 9% points above the basic interest rate during the period of arrears. The Vendor reserves the right to prove a higher level of loss or damage resulting from the arrears and assert a corresponding claim against the Purchaser. The Vendor may also, after setting an appropriate extension period for payment, withdraw from the contract and demand compensation for loss and damage in lieu of the payment due.
At the Vendor's discretion, payments may be offset against other outstanding receivable amounts.
If changes to the ownership or legal form of the Purchaser occur or in the event of any other modifications that may have an effect on the business relationship then the Vendor must be informed of this without delay. If such changes occur, the Vendor may, for the continued execution of the order, either demand the provision of securities in respect of all claims arising from existing contracts or may demand immediate payment of these. Up to the receipt of payment or the provision of securities, the Vendor may choose to refuse to continue to execute the contract, withdraw from all contracts or demand compensation due to non-performance.
If the Purchaser suspends payment or is over-indebted then the total amount due is to be paid to the Vendor without delay. The same applies in the event of any other major deterioration in the Purchaser's economic situation. In such cases, the Vendor is entitled to demand the provision of adequate security or to withdraw from the contract.
Bills of exchange are only accepted in lieu of payment without liability for protest and only following agreement and on condition that they are discountable Discount charges shall be invoiced starting from the due date of the invoice amount.
Representatives are not entitled to take receipt of payment unless they possess a written authorization to this effect.
§ 10 Retention of title
The delivered goods shall remain the property of the Vendor until paid for in full.
Title in respect of the purchased goods is transferred from the Vendor to the Purchaser only when the Purchaser has settled all claims arising from the business relationship with the Vendor (extended retention of title). The Purchaser undertakes to treat the goods with due care and attention and, in the case of goods of high value, to insure them against the habitual risks (e.g. water, fire, storms, theft) on behalf of the Vendor.
Up until the point at which title has been transferred in full, the Purchaser undertakes to inform the Vendor without delay in the event that the goods are attached or otherwise subject to any interventions by third-parties.
The Purchaser is entitled to dispose of the goods delivered subject to retention of property during the normal course of business provided that it is not in arrears. The Purchaser assigns to the Vendor all claims against buyers or other third-parties arising from the further disposal of the goods in connection with acceptance into current account relationships as security and any other claims resulting from the business relationship. Following assignment, the Purchaser is authorized to collect the claims assigned to the Vendor. Nevertheless, the Vendor reserves the right to revoke the authorization to collect such claims and to collect them itself in the case that the Purchaser fails to meet its payment obligations, is in arrears and, in particular, a petition has been lodged for the opening of insolvency proceedings.
The Purchaser is required to secure the rights of the Vendor when reselling on credit the goods subject to retention of title. The Purchaser must inform the Vendor in text form and without delay of any existing, pre-existing or executed impairment of the Vendor's rights, in particular general assignment, attachments, etc. In the event of the attachment of goods, the minutes of attachment must be sent without delay. The Purchaser is required to inform the pledgee of the Vendor's retention of title.
If the Vendor's retention of title in respect of goods acquired by means of a commercial transaction ceases as a result of the resale, combination or processing of the purchased goods by the Purchaser then the new object or the claim resulting from one of the above-mentioned activities shall take the place of the purchased goods (extended retention of title).
If the Purchaser is in arrears in the discharge of its payment obligations, is over-indebted or suspends payments or if petition for insolvency proceedings is lodged or an application made for court protection against creditors then the Vendor is authorized to recover all the goods subject to retention with immediate effect or to enforce its other rights arising from them. To this end, the Purchaser will allow the Vendor access to its premises during business hours.
The Vendor retains all rights of ownership and copyright in costings, drawings, illustrations and other documents. Third-parties must not be allowed access to any such documentation. Tools manufactured on behalf of a Purchaser remain, at the Vendor's discretion, the property of the Vendor.
§ 11 Industrial property rights
In the Federal Republic of Germany, the Vendor guarantees the Purchaser that the delivered object is free from third-party industrial property rights. Industrial property rights here refer to patents, designs and industrial models, trademarks, including the respective applications, and copyright.
The Vendor will, at its discretion and at its own expense, either procure for the Purchaser the right to use the delivered object, design the delivered object in such a way that it is free of industrial property rights, replace the delivered object with another object of equivalent capability that infringes no industrial property rights, or recover the delivered object against reimbursement of the purchase price.
The obligations set out above exist only if and to the extent that the Purchaser informs the Vendor without delay and in text form of the claims asserted by any third-party, has not acknowledged any infringement of industrial property rights and the Vendor is free to defend itself and conduct settlement negotiations as it sees fit.
The Purchaser is not entitled to make any claims in respect of the infringement of industrial property rights if it is itself solely responsible for the infringement of the said rights. The Purchaser is also not entitled to make any claims in respect of the infringement of industrial property rights if the infringement results from special instructions issued by the Purchaser, usage that could not be foreseen by the Vendor or from the subsequent modification of the delivered object by the Purchaser.
The Vendor is liable to the same extent as set out in § 6; the Purchaser is not entitled to make any further-reaching or other claims in respect of third-party industrial property rights.
The Purchaser acquires no entitlement to make use of industrial property rights made available to the Vendor that relate to the interaction between the delivered object and other objects.
§ 12 Concluding provisions
German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods, is exclusively applicable to the present General Terms and Conditions and the associated concluded purchase contract.
The place of jurisdiction for all claims arising from or in connection with the present provisions and all aspects of the legal relationship between the contractual parties is the Vendor's place of business. However, this does not prejudice the Vendor's right to assert claims against the Purchaser in other competent jurisdictions.
The text form applies to all contracts/agreements concluded on the basis of these General Terms and Conditions. There are no verbal ancillary agreements. Any modifications and extensions, including modifications to the present clause, must be agreed in text form.
If one or more clauses of these General Terms and Conditions should become fully or partially ineffective then this shall not affect the validity of the remaining provisions.
§ 1 Scope and General Information
The present General Terms and Conditions (GTC of Purchase) are definitive and govern the contractual relationship between the Purchaser mbo Osswald GmbH & Co KG, Steingasse 13, 97900 Kuelsheim-Steinbach (Tel. +49 (0) 9345/670-0, Fax +49 (0) 9345/6255, email@example.com) and the supplier of goods (referred to as the "Supplier" below) that are ordered and procured by the Purchaser.
They do not apply to relations with natural persons that conclude legal transactions only for purposes that can be attributed neither to their commercial nor to their independent activities.
The Supplier's own terms and conditions are herewith excluded unless agreed to the contrary in text form between the parties. The General Terms and Conditions of Purchase shall also apply if the contract is executed unconditionally by the Supplier in the knowledge of the Supplier's terms and conditions that contradict or deviate from the General Terms and Conditions of Purchase. The Purchaser's acceptance of a delivery or service provided by the Supplier does not constitute acceptance of the Supplier's general terms and conditions. The absence of comment regarding an order confirmation issued by the Supplier containing contradictory provisions on the part of the Supplier also does not in any way constitute acceptance.
The General Terms and Conditions of Purchase apply to all future business transactions and contracts with the supplier even if the Purchaser no longer expressly informs the Supplier of this in the future.
Any references to the application of statutory provisions are for the purposes of clarification only. Even in the absence of such clarification, the statutory provisions apply provided that they are not directly amended or expressly excluded by the present General Terms and Conditions.
§ 2 Conclusion of Contract
The conclusion of the contract, as well as any agreements concluded between the Purchaser and the Supplier with regard to the execution of this contract, must be undertaken in text form. The Supplier must perform a technical examination of offers made and expressly inform the Purchaser of any discrepancies from the order documents in the offer. In such cases, correspondence must be addressed to the Purchaser's purchasing department or senior management. Any arrangements entered into with other departments that include agreements that amend the points set out in the present contract must be confirmed in text form by the Purchaser's purchasing department or senior management in the form of a supplement to the agreement.
The Supplier's offers are binding in all cases and must be submitted free of charge.
The Supplier is required to confirm orders placed by the Purchaser in writing within a period of 14 days or to execute such orders unconditionally by dispatching the goods (acceptance). Acceptance after this period constitutes a new offer and this must be accepted by the Purchaser.
If the offer is made by the Purchaser then it is bound by this offer for 14 days as of the offer date.
§ 3 Scope of Service
The content of the delivered service results from each individual purchase order. Documents, reports, ideas, drafts, models, samples and all other outputs involved in the provision of the service are part of the execution of the order.
The Supplier will provide its services with extreme care and attention and will take account of the most recent scientific and technical knowledge and practices, the safety regulations issued by authorities and professional associations, as well as of its own existing knowledge and experience or that acquired during the execution of the order. It guarantees compliance with legal regulations, the agreed technical specifications and other instructions.
In the absence of any prior written agreement to the contrary, partial provision of services is not permitted. In such cases, the Purchaser is therefore entitled to cancel any residual quantities. If, however, the Purchaser accepts partial performance, this does not constitute approval of the partial service and the Purchaser reserves the right to exercise any resulting claims.
Ordered deliveries and services may only be entrusted to third-parties after prior agreement has been given by the Purchaser in text form.
At the Purchaser's request, the Supplier will provide specifications regarding the composition of the delivered object if this is required in order to comply with legal requirements either at home or abroad.
If changes occur in the nature of the composition of the agreed material or engineering design compared with previous similar deliveries or services provided to the Purchaser then the Supplier must immediately notify the Purchaser of this in text form. Any such changes require the Purchaser's agreement in text form.
Insofar as the Supplier has not yet discharged its obligations in full, the Purchaser is, within reasonable limits, entitled to demand changes to the order in respect of engineering design, execution, quantity and delivery times. In such cases, any consequences (e.g. additional costs, cost reductions, delivery deadlines, etc.) must be settled by joint agreement between the parties. The Purchaser may also demand changes to the object of the delivery even after conclusion of the contract provided that this is objectively possible and reasonable for the Supplier. In the case of such contractual modifications, the consequences for both parties, in particular with regard to additional costs, cost reductions or delivery deadlines must be settled by joint agreement between the parties.
The Supplier is required to notify the Purchaser immediately in writing of any doubts or reservations it has regarding the mode of execution of the service or delivery requested by the Purchaser, and to propose the changes that it considers necessary in order to fulfil the agreed specifications or statutory requirements.
The Supplier is required to provide, under reasonable conditions, spare parts for the period of normal technical use and, however, at least for 10 years following the final delivery. If the Supplier intends to cease delivering these spare parts on expiry of the above-mentioned period or to stop supplying the object of the delivery during this period then the Purchaser must be informed of this and must be given the opportunity to place a final order before deliveries are terminated.
§ 4 Price, place of execution, conditions of payment
The prices set out in the purchase order are fixed prices. In particular, the price includes the costs of delivery free to the Purchaser's address, insurance, customs, packaging and material inspection procedures. Claims in respect of additional deliveries and/or services can only be asserted following prior written agreement and the placing of an order for the additional deliveries and/or services between the parties to the contract. Otherwise, no additional demands in excess of the total fixed price may be made.
Unless another place of execution is agreed in writing in the contract, deliveries must made to the Purchaser's place of business (discharge of obligation at purchaser's place of business) and must be insured by the Supplier, at its own expense, against transport damage, incorrect loading or unloading and theft.
Goods must be packaged in a way that prevents damage during transport and loading operations. Packaging materials should only be used to the extent necessary to achieve the corresponding purpose. The Supplier's take-back obligation, including in respect of transport and product packaging, is based on the statutory regulations.
No payment is due in respect of demonstrations, presentations, negotiations and/or the elaboration of offers and projects unless agreed in advance in text form.
The Purchaser cannot process invoices that are due for payment unless these comply with statutory requirements, and in particular the Turnover Tax Act (UstG), and contain the order number issued in the Purchaser's purchase order as well as the specifications and/or documents agreed with the purchase order. The Supplier is responsible for any consequences resulting from failure to comply with these requirements. In the absence of the above-mentioned specifications and/or documents, the Supplier is not authorized to assert any claims for the items in question against the Purchaser.
Unless otherwise agreed in writing, payment of the purchase price will be due 30 calendar days after hand-over and acquisition of title in respect of the delivered goods, reception of an auditable invoice and receipt of all the required documents relating to the payment. If the Purchaser pays within 14 calendar days then the Supplier will allow a discount of 3% on the net amount of the invoice. In the event of late payment resulting from incorrect delivery documents or incomplete invoices, the Purchaser will continue to benefit from this discount. If early deliveries are accepted then the due date for payment is based on the agreed delivery date. If partial deliveries have been agreed then payment only becomes due with the final delivery; this does not apply in the case of multiple-delivery contracts or in cases where a partial delivery is cancelled.
If the Supplier is required to make available material samples, quality documents or other contractually agreed documents then the delivery or service is only deemed to be complete when these documents have also been received.
The Purchaser possesses offsetting and retention rights to the extent set out by law. The Supplier's offsetting and retention rights apply only insofar as these are undisputed or have been legally established. The Purchaser is entitled to reduce invoice amounts by the value of returned goods and of any expenses incurred or claimed for loss or damage.
The Supplier is not entitled to assign its claims against the Purchaser without the latter's authorization or to arrange for them to be collected by third-parties. This does not apply in the case of extended retention of title by the Supplier.
§ 5 Delivery dates
The delivery date specified in the purchase order is binding and must be carefully checked by the Supplier. The date of delivery is considered to be the date on which the Purchaser receives the goods in their entirety at its place of business. If delivery is made prior to the agreed delivery date then the Purchaser reserves the right not to accept the delivery and to return this at the Supplier's risk and expense. The acceptance of the early delivery by the Purchaser does not constitute approval.
The Supplier is required to inform the Purchaser immediately in writing if circumstances making it impossible to respect the agreed delivery date arise or can be foreseen. Should it fail to do so, it cannot subsequently cite such circumstances in its defence.
If the Supplier does not provide its service or does not do so within the agreed delivery time or if it falls behind schedule then the Purchaser's rights are based on the statutory provisions. The provisions set out above are unaffected by this.
§ 6 Release from service obligations, withdrawal from contract
In the event of force majeure, the parties to the contract are released from their obligations under the contract for the period of the disruption and to the extent of its effect. The parties to the contract are obliged to provide the necessary information without undue delay and to adapt their obligations to the altered circumstances in good faith.
The Purchaser is fully or partially released from the obligation to accept the ordered delivery and entitled to withdraw from the contract if the delivery is unusable for the Purchaser due to the delay resulting from the occurrence of force majeure.
The statutory provisions relating to withdrawal from contracts are unaffected by this.
If non-accepted deliveries or defective goods are returned by the Purchaser then return transport is undertaken at the Supplier's risk. The Supplier will also bear the costs of return delivery.
§ 7 Transfer of risks and documents
Transfer of risk takes place on acceptance of the complete delivery by the Purchaser at its place of business.
The Supplier is required to specify the Purchaser's order number on all shipping documents and delivery notes. If the Supplier fails to do so then the Purchaser accepts no responsibility for any delay in processing. Two copies of the delivery note must be enclosed with each delivery.
The Supplier must provide certificates of origin demanded by the Purchaser indicating all the required specifications. These must be signed correctly and made available immediately. The same applies for documents relating to turnover tax legislation in the case of overseas and intra-community deliveries. The Supplier will inform the Purchaser immediately if a delivery is subject either in full or in part to export restrictions or any other legislation.
Documents, reports, ideas, drafts, models, drawings, calculations, samples and similar material made available to the Supplier by the Purchaser remain the property of the Purchaser. Such items may only be used for the fulfilment of the Supplier's obligations with regard to the Purchaser and must not be further processed or reproduced except for the purposes of commercial requirements and with the Purchaser's express agreement in text form. Following provision of the service, the Supplier must immediately return the above-mentioned documents to the Purchaser unrequested.
Similar obligations must be imposed on sub-suppliers.
§ 8 Warranty and guarantee
Any warranty claims on the part of the Purchaser against the Supplier in the event of material defects or deficiency in title will be determined in accordance with the statutory provisions. The warranty period is 24 months as of the transfer of risk.
The Supplier guarantees that the delivery will be executed free from defects in accordance with the specifications in the order and the most recent scientific and technical knowledge and practices. It further guarantees the quality of the material and compliance with all relevant standards and pollutant regulations. The Supplier must manufacture and/or deliver the ordered goods in a way that permits their risk-free processing or use. Hazards of all kinds that may arise in respect of the delivered goods must be indicated by means of clear, commonly understood and generally accepted, habitual hazard symbols, warning notes and other instructions for use and operation and safety instructions. The Supplier must inform the Purchaser unrequested of any special storage, handling, processing or operating instructions together with the delivery. In the case of trade goods, the individual items must be provided with these instructions in a way that is identifiable for the user.
The Purchaser is required to inspect the goods within a reasonable period for any discrepancies in terms of quality or quantity. Complaints are deemed to have been lodged in good time if they are received by the Supplier within a period of five working days as of goods receipt or, in the case of hidden defects, as of their discovery.
§ 9 Liability
The Supplier is liable as provided for by law.
If the Supplier is responsible for a product defect then it is required to indemnify the Purchaser against third-party claims for loss or damage immediately on request insofar as the cause lies within its sphere of control and organization and it is itself liable vis-à-vis third-parties. This indemnification obligation also applies to all expenses that necessarily accrue to the Purchaser due to or in connection with the assertion of a claim by a third-party, including the costs of legal representation. The Supplier must insure itself adequately against such risks in accordance with normal commercial practice.
The Purchaser is liable only in accordance with the statutory provisions in the case of loss of life, physical injury or damage to health, in the case of malicious intent or gross negligence on the part of the Purchaser, a legal representative or vicarious agent or in the case of loss or damage covered by a warranty or assurance issued by the Purchaser. In the case of minor negligence, the Purchaser is liable only for compensation in respect of damage that is typical of the contract and foreseeable, in so far as an obligation whose correct discharge is essential for the execution of the present contract and on the respect for which the partner to the contract should be able to rely (cardinal obligation) has been violated by the Purchaser, a legal representative or a vicarious agent.
§ 10 Title, supplied items and combination
Retention of title by the Supplier is binding only if this has been agreed in text form separately from the Supplier's general terms and conditions.
If the Purchaser supplies and/or makes materials or items available then these remain the property of the Purchaser. The Supplier processes or converts these materials or items on behalf of the Purchaser. If the Purchaser's items or materials are processed with other objects which do not belong to it, then the Purchaser acquires shared title in the new object in proportion to the value of its own items or materials compared to the value of the other processed objects at the time of processing.
If the items or materials provided by the Purchaser are inseparably combined with other objects, which do not belong to it, then the Purchaser acquires shared title in the new object in proportion to the value of the materials or items in which its title is retained compared to the value of the other combined objects at the time of combination. If the items or materials are combined in such a way that the Supplier's items or materials can be considered to be the main constituent then it is agreed that the Supplier transfers ownership proportionally to the Purchaser. The Supplier will maintain the exclusive or shared title for the Purchaser free of charge.
Tools, moulds, equipment etc. ordered by the Purchaser for the purposes of executing the order become the Purchaser's property at the time of procurement or manufacture. The Supplier transfers title, shared title, right to future acquisition and all other rights to the Purchaser. Hand-over is replaced by the fact that the Supplier retains the objects on behalf of the Purchaser, makes it known that they are the Purchaser's property, fully maintains them and repairs them. § 690 of the German Civil Code (BGB) does not apply. Ownership confers on the Purchaser the right to transfer the tools to third-parties for the manufacture of parts. This applies in particular if the Supplier experiences manufacturing problems. If, at its own discretion, the Purchaser decides to request the Supplier to hand over the tools, moulds, equipment etc. then the latter must comply with this request immediately without claiming any right of retention. The Purchaser may also leave the tools, moulds, equipment etc. in the Supplier's possession until the parts have been delivered by the latter as specified in the contract, and in particular on schedule and at competitive prices. The Supplier is required to use the tools only for the manufacture of the goods ordered by the Purchaser. The Supplier is required, at its own expense, to insure the tools belonging to the Purchaser at their new replacement value against damage due to fire or water, against theft, as well as against accidental deterioration or damage. It is required to undertake any necessary maintenance and inspection operations in good time and at its own expense. The Supplier must notify the Purchaser immediately of any malfunctions. Any culpable failure to do so confers a right to compensation on the Purchaser. Any other claims in respect of loss or damage are unaffected by this.
§ 11 Industrial property right, confidentiality, data protection
The Supplier guarantees that no third-party rights, and in particular patents or industrial property rights, are infringed in connection with its delivery. If any claims are made against the Purchaser in this regard, then the Supplier is required to indemnify the Purchaser immediately on request against any resulting claims and defend against these. This indemnification obligation also applies to all expenses that necessarily accrue to the Purchaser due to or in connection with the assertion of a claim by a third-party. This also includes the costs of legal representation. The Supplier must insure itself adequately against such risks in accordance with normal commercial practice.
The Supplier is required to maintain the confidentiality of all the documents and information received from the Purchaser. They may only be made available to third-parties with the Purchaser's express authorization. The requirement for confidentiality also extends to personal data. The requirement for confidentiality also applies following completion or premature termination of the present contract. It expires when, and to the extent that, the information contained in the documents made available becomes common knowledge. Any third-parties that the Supplier calls on for the fulfilment of the obligations resulting from the present contract must be subject to equivalent obligations. In the event of any violation of this obligation, the Purchaser may demand the immediate return of the documents and assert a claim for compensation.
The conclusion of this contract must be treated as confidential. The Supplier's advertising materials may not refer to the conclusion of the business transaction with the Purchaser unless the latter has given its authorization in text form. The Purchaser and Supplier undertake to treat all commercial or technical details that are not in the public domain of which they become aware as a result of the business relationship as business secrets. Any third-parties that the Supplier calls on for the fulfilment of the obligations resulting from the present contract must be subject to equivalent obligations.
The Purchaser is entitled to process and store, within the framework of German data protection legislation and the General Data Protection Regulation, the data it obtains regarding the Supplier in connection with the business relationship insofar as this appears purposeful for the execution of the contract. The Supplier also undertakes to comply with the data protection provisions.
§ 12 Concluding provisions
German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods, is exclusively applicable to the present General Terms and Conditions and the associated concluded contract.
The place of execution is the Purchaser's place of business. The place of jurisdiction for all claims arising from or in connection with these conditions and all aspects of the legal relationship between the contractual parties is also the Purchaser's place of business, provided that the partner to the contract is a merchant, a legal person under public law or a special fund under public law. However, this does not prejudice the Purchaser's right to assert claims against the Supplier in other competent jurisdictions.
The text form applies to all contracts and/or agreements concluded on the basis of these General Terms and Conditions. There are no verbal ancillary agreements. Any modifications and extensions, including modifications to the present clause, must be agreed in writing.
The version of INCOTERMS valid at the time of conclusion of the contract applies to the interpretation of the trade-related clauses.
If one or more clauses of these General Terms and Conditions should become fully or partially ineffective then this shall not affect the validity of the remaining provisions.
GTC - general
The materials provided for machining are commercially available drawn steel rods that have either not been checked for cracks or have been subjected only to limited checks. The surface defects that may therefore occasionally arise in parts are unavoidable and do not represent grounds for claims. The type and nature of any materials certificates that may be delivered with the products must be agreed upon during the processing of the order.
2) Sorted products and level of purity
Products are supplied unsorted as standard. There can therefore be no claim to 100 % consistency and a complete absence of defects. As standard, the parts are not or are only to a limited extent suitable for further processing in automatic feed systems and their suitability must be verified on a case-by-case basis. No specific requirements in terms of product purity are deemed to have been agreed unless such requirements have been explicitly discussed and contractually agreed with the customer in the light of the processes involved and across the entire process chain. On request, it is possible to perform a 100 % technical and commercial inspection for defined characteristics. Such inspection operations must be agreed on separately for any given order and give rise to a surcharge.
3) Surface coating
Surface coating activities are undertaken using standard market procedures in the form of an industrial mass coating process. Consequently, the supplied products fulfil no requirements in terms of defined visual appearance or suitability as decorative items. It is perfectly possible for the items in delivered batches to have different appearances due to process-related factors and there can therefore be no assurance of a uniform visual appearance in and between batches. In the case of barrel-plated products delivered as bulk goods, there is a risk of localised defects, bundling, deformations and, depending on the weight and geometry of the parts, damage to edges or surfaces. Crevice corrosion may occur around joins. It is physically impossible or possible only with restrictions to coat drilled blind holes, with the result that rust may form in such areas. In the case of zinc flake coatings, it is necessary to accept the system-related risks, such as localised defects, accumulations of coating material, tolerance impairments and bundled, adhering parts. Industrially coated products are delivered unsorted and unseparated. Should the customer wish for sorted products then it may be possible to evaluate such wishes from a technical and commercial perspective and price them accordingly.
4) Hardening process
In the case of parts that are treated in a run-through process, process-related deformations and, in certain cases, variations in hardness may occur. Technologically, this possibility cannot be excluded and products treated in this way are not subject to a 100% inspection in this regard.
mbo Osswald only takes responsibility for engineering activities in respect of new developments undertaken by the customer if this has been agreed on beforehand on a project-specific basis. If the manufacturer is unaware of the product requirements, is aware of them only with restrictions or has not been fully informed of them or if it does not possess the equipment required for adequate testing then no liability will be assumed in respect of suitability and desired functionality. In general, mbo's customer, as the user of the development, is initially responsible for configuration, the conduct of test sequences and the establishment of market readiness.
Sampling is performed on the basis of the VDA format or in accordance with PPAP and is charged for in the same way as cover sheet inspection and IMDS entries. The nature and scope must be agreed on during the processing of the offer or order. Salt spray tests to establish corrosion resistance are performed externally and are charged for on a time and cost basis.