GTC General Terms and Conditions of Business
1. Our deliveries, performances and offers are made exclusively on the basis of our General Terms and Conditions of Business in the version valid for the time being. Through the placing of a contract, these Terms and Conditions are accepted. General Terms and Conditions of Business of the Purchaser are only validly agreed in so far as they are brought to our attention in due time and in so far as they contradict neither individual contractual nor the following conditions. Deviating or for us unfavorable, supplementary conditions of the Purchaser shall not become part of the contract even if we do not object to them separately or execute the order without reservation and in knowledge of the general conditions of the Purchaser. Our Terms and Conditions of Business also apply for future transactions, even if no express reference is made to the same, in so far as they have been sent to the Customer in the case of a contract confirmed by us.
2. Offers are always made subject to a right of withdrawal of the same and a non-binding basis. A contract of supply comes into being only through our confirmation of contract, which also determines exclusively the object of the performance to be provided by ourselves. Excesses or short-falls in deliveries resultant from manufacturing processes up to 6% of the quantity stated in the confirmation of contract are permissible without the agreed item price being changed.
3. Offers, samples, drafts, plans, quotations and similar documents remain our property. They are to be treated confidentially and we retain copyright in the same. Through the payment of the costs for tools or similar items, the Purchaser does not acquire any right to transfer of ownership in these objects.
4. Delivery times are only binding if their binding nature has been confirmed by us in writing. If the performance of a contract requires action on the part of the Purchaser, the delivery period shall only begin to run when this action has been taken. The Purchaser may not derive any rights from our failure to keep confirmed time limits if the failure to keep the time limit was beyond our control, in particular, for instance, in the event of Force Majeure, industrial dispute measures, delays in transport, break-downs in the production process or such like for which we are not at fault.
Part deliveries are permissible. In so far as we are responsible for the failure to meet a time limit for which we have given a binding commitment and are in this respect guilty neither of gross negligence nor of deliberate intent, the Purchaser is entitled to cancel the contract after setting a reasonable extension of time; the assertion of a claim for any damage arising on account of the delay shall be restricted in its amount to 20% of the invoice value of the deliveries and performances affected by the delay; no further-reaching claims exist. Until the Purchaser has fulfilled his contractual obligations, he may not assert claims deriving from delayed delivery. Should the Purchaser be in default of a payment obligation existing towards ourselves, we may refuse to make delivery for the period of the default, also in relation to other contracts.
5. If call-off contracts are not called off within 12 months of placement of the contract, we shall be entitled, at our option, in relation to the quantities not called off to deliver such quantities or to cancel the contract, either in whole or in part. The Purchaser shall be obliged to reimburse the damage arising from the failure to fulfil the contract, in particular in relation to the raw materials and semi-manufactured products already purchased or finished by us.
6. Our prices are quoted in EURO ex works exclusive of packaging. The minimum merchandise value amounts to EURO 800 net. When using materials the price of which is determined by market quotations, we shall be entitled to adjust the agreed price. In the case of customised items for which we cannot calculate the costs in advance, we shall be entitled to determine the price in accordance with our reasonable discretion.
7. We always dispatch goods- even in the case of deliveries which are made carriage made - at the risk of the recipient. Our obligation of delivery is deemed to have been fulfilled as soon as the goods are transferred to the carrier or as soon as they have left the works.
8. The goods delivered remain our property until payment in full of all claims arising from our business relationship. The reservation of title also extends to products arising through processing. In the case of processing, combination or co-mingling of the object of delivery with other material, we shall acquire co-ownership in the product thereby arising in the ratio of the invoice value of our goods to the value of the product arising. The Purchaser shall be entitled to re-sell the goods which are the subject of the reservation of title in his normal course of business provided the passing to us of the claim accruing to the Purchaser is not excluded. The Purchaser already now assigns to us - in the case of co-ownership, in the amount of the share of co-ownership in the product sold - by way of security all claims arising out of the sale of the goods delivered or from the sale of those products in which we are entitled to co-ownership. The Purchaser shall be entitled to collect the receivable assigned as long as he complies with his obligations of payment to us and does not run into economic difficulties. We shall, at the demand of the Purchaser, be obliged to release securities of our choice if the value of our securities exceeds our claims by more than 20%. We shall be entitled to demand surrender of possession of the goods which are subject to reservation of title
- if the Purchaser is in default with the fulfilment of his obligation of payment or
- if he has made application for the opening of judicial composition proceedings or if an application for insolvency proceedings has been made himself or a third party or
- if it becomes evident from other circumstances that the Purchaser has run into economical difficulties
to the extent necessary in order to secure our claims, even when the same are not yet due for payment. Should our claims not be settled within one month following the surrender of possession, we shall be entitled to sell the goods subject to the reservation of title on the open market or have the same auctioned. The Purchaser shall be obliged to notify us without delay if levy of execution measures are announced or performed by a third party in relation to the goods subject to the reservation of title or in relation to an object in which we have obtained co-ownership or in respect of a claim assigned to us.
9. The statutory provisions shall apply to the rights of the purchaser in the event of material defects and legal defects, unless otherwise stipulated below:
The Purchaser shall be obliged to inspect each delivery, including part deliveries, immediately following receipt with the care of a prudent businessman and to notify any complaints in writing without delay, but no later than within 8 days, in particular in relation to possible defects or deficiencies in quantity. In the case of latent defects, this shall apply analogously as from the point in time of discovery. In the case of breach of the obligation of inspection and notification of complaints, no warranty claims of any kind shall exist. The same shall apply if our operating, installation or maintenance instructions are not followed, or if changes are made to the products, in particular where parts are exchanged or consumables are used which do not conform to our specifications. Where a complaint of a defect is made, the Purchaser shall be obliged, at our option, to send us the deficient item for examination or to enable us to have the examination carried out on site. In the event that a repair or a replacement delivery is made by reason of a justified complaint, the provisions concerning the delivery time shall apply correspondingly.
10. Seiler may modify the specifications of goods designed by Seiler and substitute goods manufactured to such modified specifications for those specified herein, provided such goods substantially conform to the contract.
11. Buyer may terminate this contract in whole or from time to time, in part upon thirty (30) days advance written notice to Seiler. In such event, Buyer shall be liable for termination charges which shall include a price adjustment based on the quantity of goods actually delivered, and all costs, direct and indirect, incurred and committed for this contract together with a reasonable allowance for prorated expenses and anticipated profits.
Unless otherwise in the face hereof, all quantities must be released no more than twelve (12) months from the date of Seller's receipt of Buyer's purchase order, otherwise this contract may be cancelled by Seiler and Buyer shall be liable for termination charges as provided herein.
If in Seller's judgment, Buyer's financial condition does not justify the terms of payment specified herein, Seiler may cancel this contract unless Buyer shall immediately pay for all goods which have been delivered and pay in advance for all goods to be delivered.
12. In the event of any default by Buyer, Seiler may decline to make further shipments. If Seiler elects to continue to make shipments, Seller's actions shall not constitute a waiver of any default by Buyer or in any way affect Seller's legal remedies for any such default.
13. If the goods to be furnished under this contract are to be used in the performance of a U.S. Government contract or subcontract and a U.S. Government contract number shall appear on Buyer's purchase order, those clauses of the applicable U.S.
Government procurement regulation which are mandatorily required by Federal Statute to be included on U.S. Government subcontracts shall be incorporated herein by reference.
14. This contract shall be binding upon and inure to the benefit of the parties and the successors and assigns of the entire business and good will of either Seiler or Buyer, or of that part of the business of either used in the performance of this contract, but shall not otherwise be assignable.
15. THIS CONTRACT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES RELATING TO THE SALE OF THE GOODS DESCRIBED ON THE FACE HEREOF AND SUPERCEDES ALL PREVIOUS COMMUNICATIONS, REPRESENTATIONS OR AGREEMEMENTS, EITHER ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND NO REPERESENTATIONS OR STATEMENTS OF ANY KIND MADE BY ANY REPRESENTATIVE OF SELLER, WHICH ARE NOT STATED HEREIN, SHALL BE BINDING ON SELLER, NO ADDITION TO OR MODIFICATION OF ANY PROVISION UPON THE FACE OR REVERSE OF THIS CONTRACT SHALL BE BINDING UPON SELLER UNLESS MADE IN WRITING AND SIGNED BY A DUL Y AUTHORIZED REPRESENTATIVE OF SELLER LOCATED AT SELLER'S APPROPRIATE ORDER ENTRY LOCATION. NO COURSE OF DEALING OR USAGE OF TRADE OR COURSE OF
PERFORMANCE SHALL BE RELEVANT TO EXPLAIN OR SUPPLEMENT ANY TERM
EXPRESSED IN THIS CONTRACT.
16. No certificates of compliance, conformance, or chemical analysis shall be provided unless Buyer's detailed requirements are stated on the face of the Buyer's order. Seiler reserves the right to charge an additional fee for any such certificate.
17. Quotations are preferably made on the basis of Buyer's prints. When quotations are made on the basis of samples or otherwise, the dimensions on which the quotation is based will be stated. The dimensions for quoting and manufacturing are the mean specifications and are subject to the normal tolerances for variations. Unless otherwise specified in the Buyer's prints or specifications tolerances shall be +/- 5% from the nominal.
18. Unless otherwise provided herein, where fitting-up charges are specified all tools and dies, including without limitation fixtures, gauges and assembly equipment, manufactured for this contract will be Seller's property, but will be retained by Seiler for Buyer's non-exclusive use; provided, however, that Seiler may dispose of such tools and dies if Buyer does not order from Seiler goods for manufacture there from within any one (1) year period. If any tools and dies manufactured by Seiler are to become Buyer's property, it must be specifically so provided herein. Any such tools and dies or any materials, tools, dies and other equipment by Buyer to Seiler, shall be at Buyer's sole risk and expense, and Seiler shall not be liable for loss, damage, maintenance, repair or renewal regardless of cause. If Buyer desires to withdraw such tools and dies from Seller's plant for any reason, Buyer will first compensate Seiler for any cost incurred with respect to them, including, without limitation design and development costs. Where Buyer requires samples from Seiler to verify completion of fitting -up, Buyer will pay for such fitting-up within thirty (30) days after receipt of the samples unless Buyer within such period gives Seiler a written description of any unallowable variance from specifications in which case Buyer will promptly pay upon correction of such variance.