GTC
General Sales and Delivery Conditions of the Franz Filthaut GmbH
Provinzialstraße 21, D-58708 Menden, Germany
Scope
The following conditions are applicable only to business persons, legal entities under public law or of public utilities.
I. Applicability
1. Orders become binding only after the supplier has confirmed the order.
Variations and additions to the tender shall be made in writing. All offers
and tenders are subject to alterations, unless they are explicitly marked as
fixed.
2. These terms are valid in respect to on-going business and also future business,
even if not expressly referred to, as long as the supplier has been advised
of these terms at the occasion of a previously agreed to contract.
3. Any terms of business on the part of the customer are not applicable unless
expressly accepted by the supplier.
4. Should a particular term be or become null and void, the remaining terms
are unaffected.
II. Prices
1. Prices are considered to be ex works, excluding freight, customs, import
duties and packing, plus VAT, applied at the legally proscribed rate.
2. Should relevant prices vary considerably after posting of the tender or confirmation
of the order prior to delivery, customer and supplier shall consult
each other and agree to a price variation and apportioning of the costs for
forms and tooling.
3. The final price shall be calculated by weight of inspected and released
parts if the agreed method of price determination is by weight of parts.
4. The supplier is not bound to previous prices in subsequent orders (followup
orders).
III. Delivery and Receival
1. Delivery schedules commence with the receipt of all necessary documentation,
down payment or the timely provision of materials, if such were
agreed to. The supply deadline is considered fulfilled upon receipt of the
delivery advice note, even when the actual delivery is delayed or has become
impossible as long as the supplier does not cause the delay.
2. If a delivery deadline is not kept due to remiss action by the supplier, but
not due to gross negligence or intent, the customer is entitled to seek compensation
due to the delay or rescind the contract, excluding further demands
of the customer after an appropriate extension. Compensation due
to delays is limited to no more than 5% of the delayed portion of the contracted
scheduled delivery. A cancellation of the contract is excluded if the
delay is due to acceptance delays by the customer. The customer retains
the right to sue for higher damages.
3. Adequate part delivery as well as reasonable variation of order quantities
up to plus/minus 10% shall be deemed acceptable.
4. The supplier may demand a firm commitment to on-call contract periods,
manufacturing quantities and delivery schedules three months after receipt
of an order at the latest. Should the customer not comply to make such
commitments within 3 weeks, the supplier is entitled, after a further extension
of two weeks, to withdraw from the contract after expiration of the latest
deadline and/or demand compensation.
5. The supplier is not bound by any regulation regarding re-sale and may
freely dispose of any items of delivery after prior notification of the customer,
regardless of any other rights or regulations governing disposal
sales, if the customer fails to duly receive the said items.
6. The supplier may delay delivery because of an act of God for the duration
of the difficulties including an appropriate time for a return to normality, or
in the case of non-completion of a delivery rescind the contract wholly or
in part. As acts of God qualify strikes, lockouts or unforeseeable and unavoidable
situations, such as breakdowns, which, notwithstanding all reasonable
efforts, render on-time delivery by the supplier impossible; however,
the supplier must prove such delays. This also is the case when the
aforementioned delays occur after previous delays or when delays occur
with a sub-contractor. The customer may request the supplier to declare
within two weeks whether a cancellation of the contract or a late delivery
is appropriate.
If the supplier does not respond to the request the customer may rescind
the remaining, not yet completed part of the contract.
The supplier shall inform the customer without delay when an Act of God,
as defined in clause 1 has occurred. The supplier is obliged to minimize the
inconvenience to the customer, if necessary he may have to hand over the
forms and tooling for the duration of the obstruction.
IV. Packing, Despatch, Risk Transfer and Acceptance Delays
1. If not specified differently, the supplier chooses packing, mode of transport
and transport route.
2. The transport risk transfers to the customer upon goods leaving the works,
even if delivery is free ex works. If the customer delays a delivery, the risk
already transfers to the customer after the issue of the despatch advice
note.
3. When requested in writing by the customer the goods will be insured at
cost to the customer for the risk coverage requested.
V. Reserved Ownership
1. Deliveries remain the property of the supplier until all claims of the supplier
on the customer have been met; even when the purchase price for specially
marked claims has been met. For account customers the reserved
property rights to the delivered goods (reserved ownership goods) are in
force as security for the supplier until the balance has been paid in full. If
payments are made by means of a bill of exchange, then reserved ownership
is not transferred until the bill of exchange has been cleared.
2. Further processing or treatment of supplied goods by the customer may
only be carried out by excluding the ownership rights of the customer according
to § 950 BGB (Federal common Law of Germany) as contracted by
the supplier. The supplier becomes co-owner of the thus produced goods
to the proportional value of the net manufacturing cost to the net postmanufacturing
processed cost of the thus produced goods, which serve as
reserved ownership goods to secure the property claims of the supplier as
per clause 1.
3. Further processing (in combination or addition) by the customer with other
goods not owned by the supplier, §§ 947, 948 BGB (Federal common
Law of Germany) are applicable, resulting in proportional co-ownership by
the supplier in the resulting goods, which are now considered reserved
ownership goods.
4. The re-sale of reserved ownership goods by the customer is only permissible
as part of normal commercial practise and on condition that the customer
reaches an agreement with the supplier regarding reserved ownership
goods as defined in clauses 1 to 3. The customer is not entitled to take
any other action in respect of reserved ownership goods, in particular
pawning, mortgaging or using the goods as security.
5. The customer relinquishes herewith all claims, which may result from the
re-sale of goods and all other justifiable claims, including associate rights
on his customers to the supplier. The customer is duty-bound to inform the
supplier immediately and supply all necessary documentation to secure
the rights of the supplier against the customers of the customer.
6. When reserved property is re-sold by the customer after further processing
action in combination or addition with other goods, not owned by the
supplier, as outlined in clause 2 and 3 above the customer cedes all purchase
price claims according to clause 5 to the account value of the reserved
ownership goods of the supplier.
7. Should the value of the securities held by the supplier exceed the total
billed value of the goods by more than 10% the supplier must release such
securities to a commensurate value; the supplier may nominate the securities
to be released.
8. The supplier must be notified without delay of any confiscation or seizure
of reserved ownership goods by a third party. All associated costs due to
such intervention are to be born by the customer in as much as costs are
not born by third parties.
9. Should the supplier, taking action according to the above clauses, make
use of his right to take back the reserved ownership goods, the supplier is
entitled to an unencumbered sale or auction of said goods. Laying claim to
restricted ownership property and in particular the a request of surrender
represents a cancellation of the contract. The value of the returned reserved
ownership goods shall be as sold or auctioned and no higher than
the agreed contract price. Further claims for compensation, in particular
compensation for loss of earnings, are reserved.
VI. Warranty for Material Defects
1. Relevant for the quality and finish of all goods are the extrusion samples,
which the customer makes available to the supplier for examination and
reference as requested. Any reference to technical standards is an aid to
define product quality and is not to be interpreted as a definition of product
integrity.
2. When the supplier has advised the customer beyond his contractual obligation,
he only warrants the functionality and suitability of the supplied
goods after prior express assurance.
3. Defects are to be notified without delay, hidden defects are to be noted immediately
after discovery. In either case the warranty only extends to one
year after risk transfer, unless agreed to differently or if the statutory limit
of § 438 para. 1 clause 2, § 479 para. 1 and § 634a para. 1 clause 2 of the
German Common Law (BGB) proscribes longer warranty periods as
mandatory.
4. The supplier must re-supply if the warranty claims are found to be justified
- in which case the production samples released by the customer determine
the expected quality and finish. The customer is entitled to reduce the
purchase price or rescind the contract if the supplier does not fulfil his duty
to re-supply within a reasonable period or replacements fail repeatedly.
Further claims, in particular claims for loss or damages due to defective
supplies or subsequent resulting damages are regulated by section VII.
Replaced parts are to be returned to the supplier at his request and cost.
5. Unauthorized re-working and improper handling of defective parts result in
the loss of any right to claims for compensation due to defective parts.
The customer is entitled, after prior consultation with the supplier, to repair
defective parts to avoid much larger damage or if the supplier fails to make
good the defects and to demand compensation for appropriate costs.
6. Normal wear and tear caused by contractual usage does not imply any
rights to make warranty claims.
7. Rights to referred warranty provisions according to §§ 478, 479 of Federal
Common Law (BGB) only allow the consumer to make claims within the
scope of the legislation and do not regulate the understanding of good will
provisions with the supplier and assume that any party with referred warranty
rights will duly observe their duty, in particular the duty to report defects.
VII. General Limitations of Liability
In all cases, which differ from the conditions outlined above, and to which the supplier is obligated by reason of contractual or legal liability to pay compensation or reimbursement, his liability is limited only to cases in which he, his employees or sub-contractors are guilty of culpable intent, gross negligence or injury to life, limb and health. The statutory product warranty is unaffected independent of any blame as well as any liability in respect of the legal fulfilment in regard of any product integrity warranty; as is the liability for culpable negligence of major contractual duties and obligations, which are, however, limited to typical damages as may be predicted in such contract situations, except for cases outlined in clause 1 above. However, the above rule does not imply a reversal of the onus of proof, putting the customer at a disadvantage.
VIII. Payment
1. Payment is to be made in e (EURO) and is to go solely to the supplier.
2. In the absence of a different arrangement the purchase price for supplies
or other services is to be paid applying a discount of 2% within 10 days,
net within 30 days from the billing date. Any discount applied presupposes
the due settlement of all undisputed outstanding previous accounts.
Any payment made by cheque does not attract a discount.
3. Payments made on accounts in arrear attract an interest charge of 8 percentage
points over and above the applicable base rate of the ECB, unless
the supplier proves higher damages. The customer may prove lower damages.
4. Payment by cheque or notes of exchange may be refused. If cheques or
re-discountable bills of exchange are accepted as due payment all associated
bank charges are to be met by the customer.
5. The customer may offset an account or use his right of retention only if his
claims are indisputable or established in law.
6. Sustained non-compliance with conditions of payment or circumstances,
which raise serious doubts as to the credit worthiness of the customer, will
result in claims for all payments becoming due immediately. In this case
the supplier is also entitled to demand pre-payment for all outstanding deliveries
and even to cancel the contract if an appropriate deadline has not
been kept.
IX. Forms (Tooling)
1. The price for tooling also contains the once-off costs for the making of patterns,
but does not contain the costs for test and processing procedures,
nor costs incurred by customer initiated alterations. Any further patterns
required by the supplier are at his own costs.
2. The supplier has and retains ownership of all tooling made by the supplier
for the customer or by a contracted third party, unless agreed to differently.
The tooling is only to be used for contracts of the customer for as long
as the customer discharges his payment and receival obligations promptly.
The supplier is obliged to replace the tooling free of charge only when
the required production quantity necessitates its replacement. The supplier’s
requirement to store the tooling is extinguished two years after the last
delivery of parts produced with the said tooling and after the customer has
been duly notified.
3. As per contract, forms and tooling become the property of the customer
after full payment of their purchase price. The transfer of forms and tooling
to the customer is replaced by the storage of the said forms and tooling
with the supplier in favour of the customer. Independent of the legal right
of surrender the customer has, and the life of the forms and tooling the
supplier is entitled to exclusive possession and use of same until the end
of the contract period. The supplier must mark forms and tooling as ‘outside
property’ and insure said property at the customer’s request and expense.
4. The liability of the supplier in respect of storage and care and maintenance
of forms and tooling owned by the customer as per clause 3 above or
forms and tooling loaned by the customer to the supplier is restricted to
like treatment of proprietary property. Costs incurred in care and maintenance
and insurance are the responsibility of the customer. The obligations
of the supplier cease when, after completion of the contract and a corresponding
request by the supplier, the customer fails to collect the forms
and tooling within an appropriate period. The supplier has the right to withhold
forms and tooling as long as the customer has not complied with his
contractual duties to the fullest extend.
X. Supply of Materials
1. When the customer supplies production materials, said materials are to be
delivered at the customer’s own cost and risk, on time and in good order
and in quantities in excess of at least 5%.
2. If the above provision is not complied with, the delivery deadline shall slip
accordingly. The customer has to bear any additional costs, including extra
costs incurred due to breaks in production, except in the case of an act
of God.
XI. Commercial Protection and Legal Limitation
1. For all deliveries based on models, patterns or parts supplied by the customer
the customer guaranties that the commercial rights of third parties
in the country for which the goods are being manufactured are not injured.
The supplier will advise the customer of any rights known to him. The customer
has to release the supplier from any claims of a third party and pay
compensation for any resulting damage. The supplier is entitled to stop all
work - without any further examination of the legal position - until the legal
position has been clarified by the customer and the third party involved after
an injunction covering the supply or production of the goods to protect
the commercial rights of the third party has been issued.
If the continuation of the contract should become untenable to the supplier,
the supplier may rescind the contract.
2. Any drawings and patterns that had been made available to the supplier,
but did not eventuate in a contract will be returned if requested; else the
supplier is entitled to destroy the same three month after the issue of the
quote or tender. The same obligation applies to the customer. The party
entitled to dispose by destruction must inform the other party of the intention
prior to doing so and in good time.
3. The supplier retains all copyrights and applicable rights to commercial protection,
in particular the rights of utilization and exploitation (usufruct) of
models, forms, tooling, designs and drawings made by him or for him under
contract by a third party.
4. For all other legal product limitations section VI applies.
XII. Production and Legal Venues
1. The production venue is the works of the supplier.
2. The legal venue, including matters such as deeds, notes of exchange or
cheques, is the local court of the supplier or customer by choice of the
supplier.
3. Only German law applies. The application of the United Nations convention
of 11 April 1980 on contracts for the international sale of goods (BGBl
1989 S. 586) as it applies to the Federal Republic of Germany (BGBl 1990
S. 1477) is not valid.