General terms and conditions of sale and delivery
motan-colortronic gmbh, Otto-Hahn-Str. 14, D-61381 Friedrichsdorf
1.1 The following general terms and conditions of sale and delivery apply for all sales and deliveries if nothing else has been agreed upon in writing. Even if the ordering party is provided with an English translation of the general terms and conditions and sale to ensure a better understanding in addition to the German version, only the German version shall be the authoritative version.
1.2 General terms and conditions of business of the ordering party shall not be valid even if the ordering party refers to them when placing orders or in correspondence. The general terms and conditions of the ordering party are hereby rejected.
2. Offers and prices
2.1 All the offers are subject to change and non-binding if they are not expressly declared as binding or they contain a specific acceptance period.
2.2 The drafts are subject to change. The diagrams shall remain the property of the supply company. The plans may not be copied nor transferred to third parties, nor used for self-production of the objects in question in particular. The passing on of plans, drawings and similar documents requires the written consent of the supplier. The illustrations, information on services, power consumption, weights and measurements are as accurate as possible, but not binding. We reserve the right to make technical changes and dimensional corrections.
2.3 The prices stated in the offers are exclusive of VAT, ex works, exclusive of packaging (as far as the order confirmation does not state otherwise).
3.1 All the orders shall be confirmed in writing by the supply company with the exception of the spare parts orders up to a goods value of € 2,500. Ancillary agreements and changes require the written confirmation of the supplier. The ordering party shall inspect the order confirmation immediately upon receipt. Discrepancies shall be reported immediately and settled by mutual consent.
4. Terms of payment
4.1 The prices agreed upon are net prices plus the statutory rate of VAT and shall apply ex-works, excluding packaging, unless otherwise specially agreed.
4.2 Unless otherwise specially agreed the payment shall be made without any deduction free supplier's payment office, namely:
a) Payment within thirty days of the invoice date or date of the written notification of the readiness for dispatch,
b) in the case of orders with a total value of more than € 25,000 (not including VAT):
1/3 down payment immediately following the receipt of the order
2/3 as soon as the ordering party has been informed that the main parts
are ready for dispatch (payment within thirty days of the invoice date or
date of the written notification of the readiness for dispatch).
4.3 In the event of a default on payment the supplier is entitled to charge interest of 8 percentage points above the basic rate of interest, but at least 8%.
4.4 The retention of payments or set-off due to potential counter-claims of the ordering party that are disputed by the supplier or have not been established finally and conclusively by a court of law is not admissible.
5. Delivery time
5.1 If the order confirmation contains a delivery deadline this commences upon the sending of the order confirmation but not before the submission of all the documents, permit, releases and before the receipt of the 1/3 down payment according to section 4 to be procured by the ordering party.
5.2 The delivery deadline shall have been observed if the delivery item has left the plant at the latest two weeks after its expiry or the ordering party has been informed in writing of its readiness for dispatch.
A delivery deadline that has been agreed upon shall be extended appropriately in the event of industrial disputes, in particular strike and lockout, and in the event of unforeseen hindrances beyond the control of the supplier as far as such hindrances are proven to have seriously affected the manufacture of subsequent delivery of the delivery item. This also applies if the circumstances arise at the premises of a subcontractor.
The aforementioned circumstances shall also not be the supplier’s responsibility if they arose during a period of default that already existed. The ordering party shall be informed of the start and end of such circumstances by the supplier as soon as possible in important cases.
5.3 If the ordering party suffers damages due to a delay which is attributable to the supplier then it is entitled to demand compensation for the delay. Clause no. 5.5. shall remain unaffected by this. The compensation for the delay shall amount to 0.5% for each full week of the delay, but in total a maximum amount of 5.0 % of the net invoiced value of the goods of the part of the delivery which cannot be used on time or in accordance with the contract due to the delay.
5.4 If there is a delay in performance as defined by this section and if the ordering party shall grant the seller who is in default with an appropriate period of grace with the express declaration that it shall refuse to accept the performance following the expiry of this term and if this period of grace is not observed then the ordering party is entitled to rescind the contract.
5.5 If the shipment is delayed upon the ordering party's request then it shall be charged commencing 1 month after notice of readiness for dispatch the cost incurred for the storage, but in the storage of the storage at the supplier's plant at least 0.5 % of the invoice amount for each month.
The supplier is entitled following the fruitless expiry of a notice period set to dispose of the delivery item in another way and to supply the ordering party accordingly later or to cancel the contract. In this case the ordering party is obliged to reimburse the expenses incurred and the verifiable damage caused.
5.6 The observance of the delivery deadlines requires the fulfilment of the ordering party's contractual duties.
6. Transfer of risk and acceptance
6.1 The risk shall be transferred to the ordering party at the latest upon the sending of the delivery parts ex-works or ex-warehouse, and such risk shall also be transferred if partial deliveries are made or the supplier has assumed other performances e.g. the shipment costs or transportation and assembly. At the ordering party’s request the supplier provides assurance that it shall insure the shipment at its expense against breakage, damage to goods in transit and damage caused by water and fire and other risks that can be insured. Clause 7.2 shall remain unaffected by this clause.
6.2 If the shipment is delayed due to circumstances, which the ordering party is responsible for, then the risk is transferred to the ordering party from the day of the readiness for dispatch, but the supplier is obliged at the request and expense of the ordering party to provide the insurance that the ordering party demands.
6.3 Items that are delivered must be accepted by the ordering party irrespective of its rights in accordance with section 9 even if they have defects.
6.4 Partial deliveries are permissible.
6.5 The assumption of assembly work by the supplier shall not change the point in time of the transfer of risk irrespective of whether this service was invoiced separately. The purchaser shall already bear the risk of damage to the goods and the obligation of the insurance of the items delivered during the assembly work.
7. Reservation of title
7.1 The supplier shall reserve the ownership of the delivery item until it receive all the payments from the supply agreement.
7.2 The supplier is entitled to insure the delivery at the ordering party's expense against theft, damage through breakage, fire and water and other damages if the ordering party has not verifiably taken out the insurance itself. Section 6.1 shall remain unaffected by this.
7.3 The ordering party is entitled to resell the goods subject to a reservation of title by way of a proper business transaction; however it is not entitled to pledge or assign the goods as a security.
7.4 The ordering party's receivables from the resale of the goods subject to a reservation of title shall now already be assigned by it to the supplier; the supplier hereby accepts this anticipatory assignment. The ordering party is entitled to collect the accounts receivable for such time as it does not default on its obligations and does not suffer deterioration of assets. On request of the supplier the ordering party shall provide the information necessary for the collection concerning accounts receivables assigned and notify the debtors of the assignment.
7.5 The ordering party shall perform any necessary machining or processing for the supplier as the manufacturer without any obligations resulting for the supplier from this. If the item subject to a reservation of title is processed, linked or mixed with other goods that do not belong to the supplier, the supplier shall be entitled to the joint ownership of the new item that results from this as a proportion of the value of the item that is subject to a reservation of title in relation to the value of the new item at the point in time of the processing, linking or mixing. If the ordering party obtains the sole ownership of the new item the parties to the contract shall agree that the ordering party shall hereby grant the supplier the joint ownership of the new item as a proportion of the value of the item that is subject to a reservation of title that is connected or mixed. The ordering party shall hold the new item in safe custody for the supplier free of charge.
If the ordering party process or transforms it in such way that another chattel results from this then the manufacture shall be performed within the framework and in the economic interests of the supplier as the principal. The supplier shall become the sole owner of the item that has been newly produced. The ordering party shall hold this in safe custody for the supplier free of charge.
7.6 If the goods that are subject to a reservation of title are resold together with other goods and indeed irrespective of whether this is before or after the processing, after being connected or mixed then the advance assignment agreed upon above shall only apply up to the value of the goods that are subject to a reservation of title which are resold together with other goods.
7.7 The supplier undertakes to release the securities to which it is entitled according to the above provisions upon the demand of the ordering party to the extent the value of the securities exceeds the value of the accounts receivables secured of the supplier by more than 20%.
7.8 The ordering party must immediately inform the supplier of any impending, announced compulsory enforcement measures or compulsory enforcement measures levied by third parties against the reserved goods or against the claims assigned in advance, attachments and other third party dispositions. The documents necessary for an intervention must be handed over and all the necessary information must be issued.
7.9 In the event of behaviour on the part of the ordering party that is contrary to the terms of the agreement, in particular in the event of a default on payment, the supplier is entitled to take back the goods after notice is given and the ordering party shall be obliged to surrender the goods. The enforcement of the reservation of title and the attachment of the delivery item by the supplier shall not be deemed annulment of the contract.
8.1 If software forms part of the delivery item the supplier shall grant the ordering party a non-exclusive right of use to the software, restricted to use in its own company and to the appliances respectively delivered by the supplier with the software. The further sale of the software is not permitted if it is not expressly permitted in the order confirmation.
8.2 The ordering party is not entitled to copy, change, process, reverse engineer the software or demand the source code from this from the supplier unless the parties had expressly agreed to this separately in writing.
8.3 The supplier warrants that it is not aware, to the best of its knowledge and belief, of industrial property rights of third parties to the software supplied by it; if it procures software from third parties it is entitled by it to sell it. The supplier retains all the rights to software which was developed by the supplier itself which the ordering party was not expressly granted the rights to in writing.
8.4 The supplier warrants that the software provided meets the specifications that are contained in the documentation for the respective software which the supplier hands over to the ordering party together with the software.
8.5 Defects in the software delivered do not entitle the ordering party to cancel the entire contract or retain the payment for items the use of which is possible despite the faultiness of the software in question. In other respects Section 9 shall apply.
8.6 Should the supplier request this the ordering party is obliged to perform an acceptance test in the simultaneous presence of a representative of the supplier and the ordering party. Otherwise the ordering party shall immediately inspect the functionality of the software following delivery. The guarantee period commences upon the delivery or if necessary upon the signing of the acceptance protocol.
8.7 Potential software maintenance services by the supplier require a separate agreement and shall if necessary be remunerated separately as an extra performance.
8.8 The ordering party shall undertake to treat the software provided and the documentation that goes with it as well as company secrets of the supplier which it possibly becomes aware of in connection with the delivery item, strictly confidentially and in particular not to make it accessible to third parties in any way. Third parties as defined by this provision are also salaried employees of the ordering party who do not necessarily have to work with the software, documentation and any other company secrets that are provided, The ordering party shall oblige its employees to observe the aforementioned confidentiality management.
9. Warranty for defects of the delivery item
The supplier warrants that the delivery item corresponds with the product description that is contained in the order confirmation for the respective delivery item and the specifications of the product documentation that comes with the delivery. In the event of defects of the delivery the supplier shall warrant the following at the exclusion of further warranty claims:
9.1 The warranty term amounts to 12 months from delivery, or if acceptance is necessary, from the point in time of acceptance.
9.2 In the event of a defect, all those parts shall at the choice of the supplier be made good or a replacement shall be provided for them free of charge, which are rendered unusable due to a circumstance that arose prior to the transfer of risk - in particular due to defects in construction, poor raw materials, or defective completion, unless there is only a minor reduction in the value or the suitability of the delivery item. The determination of apparent defects must be communicated to the supplier in writing within 8 days of delivery, otherwise all warranty claims shall cease to apply. The supplier shall be informed of hidden defects that are determined immediately after they are discovered.
By request of the supplier the ordering party must provide it with the option of inspecting the delivery items for which a notice of defect has been issued. Substituted parts shall become the property of the supplier. For any essential third-party products the supplier shall provide a warranty through the assignment of claims which it is entitled to from the supplier of the third-party product.
9.3 If the subsequent improvement or the replacement delivery or the firm claims against the supplier of the third-party products is definitively unsuccessful in the case of clause 9.2. paragraph 6 the order parts shall be entitled to the reduction of the remuneration or the cancellation of the contract.
9.4 Warranty claims shall not apply in the following cases: Inappropriate or improper use, faulty assembly or commissioning by the ordering party and third parties, natural wear and tear, faulty or negligent treatment - in particular excessive work - inappropriate foundation soil, chemical, electrochemical or electrical influences.
If the event of changes or corrective maintenance work on the part of the ordering party or third parties, which are carried out improperly without the prior consent of the supplier the liability of the supplier for the resulting consequences will be annulled.
9.5 In order for the supplier to undertake the repairs or replacements which appear to be necessary at its discretion the ordering party shall after notifying the supplier provide the supplier with the necessary time and opportunity to perform this work otherwise the supplier is exempted from liability for defects. Only in urgent cases when the industrial safety is at risk and to prevent disproportionately large cases of damage whereby the supplier must be informed immediately, or if the supplier is in default of the rectification of the defect, does the ordering party have the right to rectify the defect itself or to have it rectified by third parties and to demand the compensation from the supplier for the necessary expenditure. The same applies if it is impossible for the supplier to repair or replace the delivery item.
9.6 The direct costs of repair or replacement of the spare part including the costs of dispatch and the appropriate costs of removal and installation shall be borne by the supplier - insofar as the complaint turns out to be justified - and furthermore (if this can be reasonably be demanded depending on the case in question) the costs of any necessary provision of its fitters and assistants. Any other costs shall be borne by the ordering party.
If the delivery item is abroad an entitlement to repair or replacement shall only apply if the defective delivery item was transported to the home country at the ordering party's expense. This shall also apply if the delivery item was transported abroad in accordance with the agreement.
10.1 The supplier is liable for damage which is caused by it and its agents through a grossly negligent or intentional violation of duty.
10.2 In the event of slight negligence the supplier shall be liable for the breach of cardinal duties (duties the observation of which is indispensable to achieve the purpose of the contract).
10.3 In other cases of slight negligence the supplier shall not be liable unless the damage is due to default or impossibility, or the absence of a guaranteed property, or if a case arises in which according to the German Product Liability Act liability exists for personal or material damages to objects in private use. In the event of default or impossibility the compensation of the immediate damage shall be excluded, subject to clause no. 5.4. If in a particular case the supplier has guaranteed a certain property of a delivery time then the liability from this promise shall not extend to subsequent damages that are not covered by the guarantee. More far reaching claims of the ordering party shall be excluded.
11. Impossibility of performance
11.1 The ordering party can rescind the contract if the supplier is rendered entirely unable to carry out the entire performance prior to the transfer of risk. It may also cancel the contract if when objects of the same kind are ordered the execution of the part of the delivery becomes impossible with regard to the quantity and it has a justified interest in rejecting the partial delivery. If this is not the case, the ordering party can reduce the counter-performance accordingly.
11.2 If the impossibility of performance arises during the default in acceptance, or was caused, by the ordering party then it shall continue to be obliged to make a counter-performance.
12. The place of performance and place of jurisdiction
12.1 The place of performance for the delivery shall be the respective place of lading; The place of performance payments shall exclusively be Friedrichsdorf.
12.2 For registered traders, ordering parties without a domestic place of jurisdiction, corporate bodies under public law or a special fund under public law the sole place of jurisdiction shall be the supplier's head office. This also applies claims resulting from cheques and drafts.
12.3 The law of the Federal Republic of Germany exclusively applies. The application of the UN Sales Convention dated 11.04.1980 is expressly excluded.
61381 Friedrichsdorf (Status January 2013)
General terms and conditions of sale and delivery