General Terms and Conditions of Business of ALFRED DURST Filtertechnik GmbH
1 General, area of application
1. 1 Our General Terms and Conditions of Business (T&C) apply exclusively. Conditions of the customer contrary to or conflicting with our T&C are not acknowledged, unless we have agreed to their applicability in writing.
1.2 Our T&C also apply for all future business transactions with the customer, without requiring renewed reference to our T&C.
2.1 Our quotations remain valid for a period of two weeks from the date of the quotation.
2. 2 If the purchaser places an order with us, he is bound to his order for two weeks. Orders require our written confirmation to be legally valid.
2.3 We reserve ownership, copyright and all other rights to documentation provided as part of our quotation.
Such documentation may only be made available to third parties following our agreement.
2.4 Special requirements subject to checking of standards and drawings are not automatically included in the scope of the quotation. Specifications such as those required by VDA, IMDS entries etc. will be shown separately in the quotation if necessary.
3 Prices and payment terms
3.1 Our prices are quoted in EURO ( t ) ex-works Besigheim. Costs for packaging and transport, and in the case of foreign deliveries also customs duties and other charges, must be borne by the customer.
3.2 If the customer orders from us the production of tools or moulds, 30 % of the payment will be required in the form of security, to the amount of the payment to be made by the customer, concurrently with our services. If the customer is unable to provide such security within 14 days of receipt of a corresponding request, we are entitled to withdraw from the contract. We are further obliged to continue provision of the service only concurrently with payment of the remuneration or the provision of securities to the amount of the payment to be made by the customer.
4.1 Dispatch takes place in all cases on the account and at the risk of the customer. If dispatch is delayed for reasons which are the responsibility of the customer, the risk is transferred to the customer as soon as we give notice that the goods are ready for dispatch.
4.2 We are entitled to provide our services as part-services, and to invoice them as such, provided that this is not unreasonable for the customer.
4.3 We reserve the right to supply goods with the usual minor variations due to materials and production, in terms of quality, dimensions and colour. We reserve the right to make over- or under-deliveries of up to 10 %, unless expressly agreed otherwise.
5 Delivery time
5.1 An agreed delivery time begins following provision of any documentation, approvals or releases to be obtained by the customer, and receipt of an agreed advance payment.
5.2 If the customer requires one of our services within a specific time, an express agreement must be made to this effect. We are not obliged to check material provided to us as to whether the customer has to observe a specific time or other obligations towards third parties.
5.3 Agreed delivery times are extended, including during a delivery delay, in the event of force majeure, labour disputes and other operational problems beyond our control. Agreed delivery times are subject to the reservation that we are supplied at the appropriate time by our suppliers. If this is not the case, delivery times are extended accordingly.
5.4 In the event of changes to the order agreed between the customer and us after conclusion of the contract, and which affect the delivery time, the agreed delivery time is extended to the appropriate degree.
6 Reservation of ownership
6.1 We reserve ownership to the goods supplied by us until full payment of the purchase price and all subsidiary claims.
6.2 If the customer is a commercial entity, we reserve ownership of the goods supplied until settlement of all claims against the customer arising from the business relationship.
6.3 The customer must notify us in writing and immediately in the event of distraints, other intervention by third parties or change of ownership of the goods purchased. Enforcement officers or other third parties must be notified of our ownership.
6.4 If the third party is unable to reimburse us for the legal and out-of-court costs of enforcing the denial of access and the reacquisition of the goods purchased, the customer is liable for the loss sustained by us.
6.5 If the customer is authorised in individual cases to resell the goods obtained from us in the normal course of business, the customer hereby relinquishes in our favour all claims against his customer or third party, up to the total invoice amount, including sales tax, which accrue to him from the resale of the goods. The customer also remains authorised to collect such claims following relinquishment. Our authority to collect such claims ourselves remains unaffected. We undertake however not to collect such claims as long as the customer complies with his payment obligations to us from the income received, and in particular is not in arrears with payments, no application for institution of insolvency proceedings has been made, or payments have not been discontinued. If this is the case however, we may require that the customer notifies us of the relinquished claims and their debtors, provides us with all the information necessary to collect the claim, hands over the corresponding documentation and notifies the debtors (third parties) of the relinquishment.
6.6 The processing or reworking of the goods purchased by the customer always takes place on our behalf. If the goods purchased are processed with other goods not belonging to us, we acquire joint ownership of the new goods in the ratio of the value of the goods purchased to the other processed goods at the time of processing.
6.7 If the goods purchased are inseparably mixed with other goods not belonging to us, we acquire joint ownership of the new goods in the ratio of the value of the goods purchased to the other inseparably mixed goods. The customer safeguards such joint ownership on our behalf.
6.8 We undertake to release the securities due to us, at the request of the customer, to the extent that the realisable value of our securities exceeds the claims to be secured by more than 50 %. The selection of the securities to be released will be made at our discretion.
6.9 Tools and production equipment paid for by the customer are intended for exclusive use for this customer, and remain in the keeping of Alfred Durst Filtertechnik GmbH even after discontinuation of the product.
We are entitled to sub-contract orders, in whole or in part, to third parties. This does not affect our obligations towards the customer.
8.1 Unless specified otherwise, we offer a guarantee in accordance with the applicable legal regulations.
8.2 The customer must check the goods deliveries and services provided by us immediately for conformity with the contract, freedom from faults and completeness, and in the event of deviations or faults, report this to us immediately. If the customer fails to notify us, the goods or services are deemed to be accepted, except in the case of a fault which was undetectable when checking the goods. If such a fault is found at a later time, the customer must report this to us immediately on discovery; otherwise the goods or services are deemed to be accepted even with respect to this fault. If the goods or services are deemed to be accepted, regress claims by the customer in accordance with §§ 437 ff., 478 BGB (German Civil Code) are also excluded.
8.3 We may reject the means of subsequent fulfilment chosen by the customer, without detriment to § 275 Paras.2 and 3 BGB, if this is only possible at unreasonable cost. The subsequent fulfilment claim of the customer is restricted in this case to the other type of subsequent fulfilment; our right to reject this as well, if this is only possible at unreasonable cost, remains unaffected.
8.4 Inconsequential faults do not entitle the customer to withdraw from the contract.
8.5 If we establish that a fault reported by the customer regarding the goods supplied by us is due to faults with goods or materials supplied by one of our suppliers, we will notify the customer to this effect in writing, and relinquish our guarantee and regress claims against the supplier in favour of the customer. In this case, the customer can only make guarantee and regress claims against us if he has been demonstrably unsuccessful in making such guarantee and regress claims against our supplier.
8.6 If we establish that a fault reported by the customer is in fact not present, or the goods supplied have been modified in some way not approved by us, and which was the cause of the damage, or the damage is due to improper handling or wear, the customer is obliged to reimburse us for the costs of the attempted fault rectification, and in particular the costs for working time and material, and travelling costs. In this case, we will charge € 90.00 per man-hour, plus VAT at the prevailing legal rate. We reserve the right to claim higher costs. The customer has the right to prove that we have sustained no damages or lesser damages.
8.7 Unless agreed otherwise in writing, the guarantee period is 12 months.
9 Compensation for damages, withdrawal
9.1 If we fail to comply with our obligations, fail to provide the service due or fail to do so as agreed, the customer may require compensation for the corresponding damages sustained in accordance with legal regulations.
9.2 The customer may not withdraw from the contract on the grounds of only minor infringement of obligations on our part.
9.3 Irrespective of legal regulations, we are entitled to withdraw from the contract if
a) the customer fails to act in accordance with the contract and the infringement is substantial,
b) the customer provides false information regarding his creditworthiness or
c) the service due from us is not available. In this case we undertake to notify the customer immediately of such non-availability, and immediately refund any relevant payments made by the customer.
10 Rights of third parties
10.1 If claims are made against the customer by a third party to the effect that our services infringe his rights, the customer must notify us immediately and comprehensively in writing, and allow us the opportunity to refute the claims made.
10.2 If the customer provides us with drawings, models or samples for the manufacture of products, the customer gives us his assurance that these are free of the proprietary rights of third parties. If third parties make claims against us on the grounds of proprietary rights, the customer must indemnify us against such claims at the initial request. In this case, and without further review of the legal situation, we are further entitled to discontinue production and delivery of the products concerned.
11.1 Liability is determined in accordance with legal product liability.
11.2 We are liable for culpable breach of contractual obligations in the event that we are responsible for such breach, and this endangers the achievement of the purpose of the contract.
11.3 Otherwise, all claims for compensation for damages against us, in particular on the grounds of delay or infringement of obligations, and non-contractual claims, including on the grounds of lost profit, savings or usage benefits, failed applications, indirect damages and consequential damages, are excluded.
11.4 In addition, possible claims for compensation for damages are further limited in extent and amount to damages foreseeable at the time of contract conclusion; claims may not be made on the basis of the realisation of excess risks not foreseeable by us.
The parties to the contract mutually undertake to maintain strict confidentiality with regard to all business secrets which come to their knowledge in the course of the contractual relationship, and not to disclose them to third parties. Business secrets refers to all information relating to the commercial circumstances of the other party to the contract, where such information is not made public by the other party.
These obligations continue in effect beyond the term of the contract.
13 Protection of innovations
The exchange of information of any type between the parties does not in any case constitute detriment to innovations under § 3 PatG, Art. 54 of the European Patent Convention or corresponding stipulations of other national patent laws.
If not agreed in writing, we are entitled to name the customer as a reference customer.
15 Place of jurisdiction, fulfilment and applicable law
15.1 Place of jurisdiction is Besigheim.
15.2 The place of contractual fulfilment is Besigheim.
15.3 All legal relationships between the customer and us are subject exclusively to German law.
The United Nations Convention on the International Sale of Goods (CISG) does not apply.
16 Miscellaneous, concluding clause
16.1 No subsidiary verbal agreements have been made.
16.2 If any stipulation of the contract, any stipulation added in future, or a stipulation of these terms and conditions proves to be invalid or infeasible, in whole or in part, or later becomes invalid or infeasible, or the contract is found to contain an omission, this shall not affect the validity of the remaining stipulations. The parties to the contract agree in this case, in place of the invalid or infeasible stipulation or to rectify the omission, to acknowledge the validity of applicable legal regulations.