General Terms and Conditions
of A.MANNESMANN MASCHINENFABRIK GmbH, 42859 Remscheid, GERMANY
Offer and conclusion of contract
The order shall only be deemed accepted if confirmed in writing by the supplier. Until then, the supplier's offer is subject to change. Delivery possibility reserved. Telephone or verbal supplements, changes or additional agreements also require the written confirmation of the supplier to be effective. The deliveries are made exclusively on the basis of these conditions. Contrary purchasing conditions of the buyer are hereby expressly objected to. They shall not be binding even if the supplier does not object again at the conclusion of the contract. The supplier's order confirmation is decisive for the contractual contents.
The prices are set in euros (€). The acceptance of bills of exchange and checks only occurs as payment and remains reserved. The costs of discounting and collection are borne by the purchaser. If payments are made later than agreed, default interest in the amount of the credit costs charged by the banks will be charged, without the need for a notice of default. The withholding of payments in case of notice of defects or offsetting due to any counterclaims of the customer is excluded.
The delivery period starts as soon as all details of the execution are clarified and both parties agree on all conditions of the business. Their compliance requires the fulfillment of the contractual obligations of the customer, in particular the agreed terms of payment. Unforeseen events outside the supplier's will, such as disasters, strikes, lockouts, rejects - either in-house or at subcontractor locations - etc., extend the delivery period appropriately, even if they occur during a delivery delay. The same applies if purchaser information required for the execution of the delivery is not received in time and if the order is subsequently changed. Partial deliveries are permissible.
The customer must immediately call off goods that are ready for acceptance or ready for dispatch.
If no call off is made or there is no possibility of shipment, the supplier is entitled to store the goods at the expense and risk of the customer at its own discretion and to bill the customer as delivered ex works. For orders with continuous delivery, the supplier must place call-offs and execution tasks. If not called in time or if details of the type of execution are not determined, the supplier is entitled after a fruitless grace period to distribute on its own and deliver the goods or withdraw from the still remaining part of the conclusion and demand compensation. If the suspension of the contract is agreed, the determined price minus the direct costs for the partial work still to be carried out by the supplier for the completion of the ordered parts is immediately due and payable. Claims for compensation in the event that the supplier defaults are excluded.
Transfer of risk
The risk shall pass to the purchaser upon dispatch from the plant, even if freight-free delivery has been agreed upon. If the shipment is delayed on account of the purchaser, then the risk is transferred to the purchaser already from the day of readiness of shipment. Insurance against transport damage only occurs at the order and expense of the purchaser.
Acceptance and testing
Agreed acceptances or tests occur in the delivery plant for the delivered products. The goods shall be deemed as having been delivered according to the contract if the customer has accepted the goods or has not carried out the agreed acceptance upon request and after a reasonable deadline. In the case of a corresponding delay by the customer, the supplier has the right to have the acceptance carried out at the expense of the customer by a sworn expert. If no agreement regarding the acceptance or testing occurs or if no acceptor is determined by the customer, the acceptance is replaced by the fact that the supplier has the contractual manufacturing reviewed by a sworn expert in the delivery plant. Said expert's determination of the supplier's contractual manufacturing replaces the acceptance by the customer.
The supplier is obligated to treat the drawings handed over by the orderer with strict confidentiality. The manufacturing drawings handed over to the supplier will not be reviewed by the supplier in terms of patent law. The review is the client's responsibility. The supplier is not liable for any interference in existing rights of third parties or for copyright infringements. In these cases, the client must indemnify the supplier of all third party claims in this respect.
Liability for defects
The supplier is liable for the parts he supplies for a half a year after commissioning. Commissioning is considered the first trial run in the plant of our purchaser. The warranty ends two years after the date of invoice in every case. The supplier's warranty covers the normal single-shift machine usage under operating conditions to be expected in normal mechanical engineering. It does not apply for use under extreme conditions or for experimental purposes, unless these are included in writing in the supplier's order confirmation. Defective or missing information in the order does not release the person responsible from liability. Defects are to be communicated to the supplier immediately in writing and no later than 10 business days after receipt of the goods. If defects in the delivered machine parts appear within the warranty period following acceptance by the purchaser, this period shall apply from the discovery of the defect.
If the delivered parts have defects for which the supplier is responsible, then the supplier is obligated to either replace the parts or rectify the defect. The purchaser must give the supplier the necessary time and opportunity, free of charge, for this purpose and also send the respective parts back to the supplier upon request. If the purchaser does not provide the parts in question within a reasonable time despite the request of the supplier, then the purchaser’s claims shall be void. In the event of a replacement delivery, the replaced parts become the property of the supplier. If the defect is rectified, the supplier shall bear the costs incurred if said supplier is responsible for the alleged defect. In the process, the supplier is liable for the confirmed technical manufacturing design pursuant to the drawings and the order as well as for the written expressly assured characteristics. General technical guidelines, such as the estimated usage duration calculated from dynamic load ratings, etc,, are not considered as an assured characteristic. The supplier is only responsible for material defects to the extent that said supplier should have recognized the material defect if exercising professional care. If this was not identifiable, the supplier is only liable to transferring the claims to the supplier of the material. The supplier does not guarantee that the material confirmed by the purchaser is suitable for the purpose intended by the purchaser. The supplier is not liable for functional defects due to faulty designs or assumptions of the purchaser, improper or unsuitable use, faulty installation or commissioning by the purchaser or third parties, errors or inadequate handling and maintenance, unsuitable operating equipment (e.g. lubrication) as well as all chemical, electrical or other influences unknown to said supplier, weather or natural influences, improper storage, transport or delivery. If the assembly instructions are not observed, the supplier’s warranty shall expire, unless it is proven that claimed damage would have occurred even if the assembly conditions were observed. The purchaser is responsible for any documents, teachings, supplements, samples or the like provided, i.e. the conformity, their dimensional accuracy and suitability with the specifications of the purchaser’s order. The supplier is not liable for production errors caused by this. The supplier's warranty through rework or replacement service is ruled out if the purchaser carries out repair work on his own without written approval from the supplier. In place of the replacement delivery, the supplier can credit the delivery value or replace the reduced value in the event of defective goods. In the event of a replacement delivery, the warranty applies just as for the initial delivery. For rework, the warranty period is extended by the time of the operation disruption caused by this work until the re-delivery. The supplier may refuse to rectify the defects if the purchaser does not meet his obligations, including payment. Other claims of the purchaser, in particular a claim to compensation for damages that did not occur to the delivery object itself, do not exist, no matter for which legal reason, but the provision of § 276, para. 2 German Civil Code remains unaffected.
Subcontracting offers assume that the parts delivered are of a normal design and have the dimensions and sizes and material quality assumed by the supplier. Inconsistencies in the material composition or difficulties not identified by the client prior to processing and not communicated in writing entitle the supplier to charge resulting additional costs for the processing and now unusable or prematurely worn tools or to cancel the work and withdraw from the contract. The supplier is liable for the technical execution of the confirmed work, but not for defects arising from the nature or behavior of the material provided. If parts that are sent in become unusable during processing, the contractor is entitled to bill the processing costs incurred until that point. If the workpieces become unusable due to circumstances for which the contractor is responsible, the latter will take over the processing of the equivalent replacement part. No cost replacement occurs for the provided material. Processing backlogs become the property of the contractor, unless agreed otherwise in writing.
Purchaser’s right of withdrawal
The purchaser has the right of withdrawal if the supplier has allowed a reasonable grace period for the rectification of the defect to elapse, or if the repair or procurement of a suitable replacement part is impossible, or if the supplier refuses to remedy a defect that has been proven to the supplier. All other claims of the purchaser are excluded, in particular all claims for damages.
Supplier’s right of withdrawal
If after the conclusion of the purchase contract the supplier becomes aware that the purchaser is in an unfavorable financial situation, the supplier may demand security for a return service or may withdraw from the contract after deducting the expenses he has incurred.
Retention of title
The manufactured and delivered parts shall remain the property of the supplier until the fulfillment of all claims against the customer. A pledging or assignment of security of the delivered parts is not permissible before the complete payment. In the case of a seizure by third parties, the supplier must be notified immediately so that he can intervene. The assertion of the claim for release of the supplier based on the agreed retention of title as well as the seizure of the delivery item by the supplier shall not be considered a withdrawal from the contract. The supplier's ownership of the delivered parts shall remain, even if these parts are installed. The supplier may request the parts be disassembled. Insofar as the delivered parts become an integral part of a new item, the supplier shall become the co-owner of the new item in the proportion of the value of the parts he delivered to the value of the other parts of the new item. The purchaser transfers a corresponding co-ownership share in the new item to the accepting supplier. The transfer is replaced by the agreement of a safekeeping relationship. If the purchaser delivers the new item to a third party or if the purchaser transfers ownership of the new item to a third party for other reasons, this may only be done subject to the purchaser’s own ownership as well as the partial ownership or co-ownership of the supplier in the new item, which is to be maintained until the full satisfaction of all supplier claims. In addition, if the new item is resold, the purchaser assigns all claims arising from the item to the acquirer of the new item in order to secure the outstanding claims of the supplier against the latter. In the event that due to the installation or processing of the delivered item the supplier only co-owns the new item, this cession shall only apply in the amount of the value that corresponds to the ratio of the value of the parts delivered by him to the value of the other parts of the new item. Insofar as the claims of the purchaser ceded to his own customer exceed the claims of the supplier against the purchaser by more than 20%, the supplier is obligated to clear the surplus of the ceded claim to the purchaser. In the event of the final non-fulfillment of the purchaser’s payment obligations, the purchaser shall be obliged to dismantle the parts delivered by the supplier at his own expense and to return them to the supplier with freight paid. The supplier is entitled to carry out the removal and the return transport at the expense of the purchaser, also with third parties.
Place of fulfillment and place of jurisdiction
The place of fulfillment of delivery and payment is Remscheid. Foreign clients and suppliers agree on the exclusive validity of German law. The delivery conditions of this contract shall remain legally binding in their remaining content if individual provisions should be ineffective. Any ineffective provisions will be replaced with regulations that come as close as possible to the purpose intended by the ineffective provisions.
As of 2004