General terms and conditions
The company Oberland Mangold GmbH Catalytic Converter Technology (hereinafter abbreviated as OM) with respect to other companies
A. Terms of sale, payment and delivery
I. Contract conclusions
Exclusively the following conditions are decisive for all legal transactions with OM, unless otherwise expressly determined and recognised in writing.
Other terms of sale, payment and delivery on the part of the customer are not recognised by OM, even if an order is placed with knowledge of deviating conditions.
All offers from OM are subject to change without notice, unless they are identified as binding offers. The customer is bound to this offer for six weeks.
OM may make design and shape changes to the goods. Illustrations in catalogues and brochures as well as weight, dimension and other configuration information are not binding.
II. Prices, terms of payment
The prices shown in the order confirmation shall apply ex works, excluding freight, customs, import accessory duties and packaging, plus VAT at the respective statutory rate. The prices are in euros. Invoicing also takes place in euros in the export business.
The customer shall be responsible for price increases if the delivery takes place later than four months after the contract conclusion as agreed or for reasons for which OM is not responsible. In all other cases, OM and the customer shall agree on an adjustment of the prices if the cost factors, especially wage, material and capital costs, change significantly after the order conformation and until the delivery. In the event of a significant change, OM is entitled to a unilateral price increase.
Checks and rediscount eligible bills are only accepted as a conditional payment. All associated costs shall be borne by the customer and are due immediately.
Waiving §§ 366, 367 of the German Civil Code and notwithstanding contrary provisions of the customer, OM specifies which requirements are met by the customer's payments.
In the event of the customer defaulting on a payment, OM is entitled to withhold further deliveries. This also applies in the event of a substantial deterioration of the customer's assets after contract conclusion or in the event false information was given about the creditworthiness of the customer during the contract conclusion. In this case, OM is also entitled to revoke any conceded payment targets and to demand compensation for all outstanding invoices.
The customer is not entitled to offset counterclaims or to exercise a right of retention on the means of payment, unless his counterclaim is recognised by OM or legally established. The customer may not at all offset with assigned claims.
III. Obligation to supply and obligation to accept
Agreed delivery dates are not binding dates. Compliance with a delivery date requires that the customer meet his contractual obligations. In the event of a delay by OM, the purchaser can set a grace period in writing of eight weeks for OM. After an unsuccessful expiry of this period, the customer is entitled to withdraw from the contract and/or to claim damages by written declaration.
In the event of damages resulting from delay or impossibility, OM is only liable for gross negligence or wilful intent. There is no liability for more distant or consequential damages as well as in the case of force majeure. Excluding additional claims, the compensation for delay is 0.5% of the total for every full week of delay, but at the most 5% of the value of the total delivery.
Partial deliveries or deliveries before the scheduled delivery time cannot be rejected by the customer. Also during the grace period, OM is entitled to make partial deliveries with the result that the customer is to set a new grace period with respect to the delivery of the remainder of the goods.
For call orders without an agreement on delivery time, production size and date of acceptance, OM can demand a binding confirmation of these aspects up to three months after the contract confirmation. If the customer does not meet this demand within three weeks, OM is entitled to set a two-week deadline and, after its expiry, is entitled to withdraw from the contract, to refuse delivery and to claim damages.
Force majeure or operational disturbances that occur at OM or its suppliers' locations, which temporarily prevent OM (without OM being at fault) from delivering the delivery item by the agreed date or within the agreed time period, extend the delivery time by the duration of impairments of performance caused by these circumstances. If these disruptions lead to a delay in performance of more than four months, the customer may withdraw from the contract. Other rights of withdrawal shall remain unaffected. The customer is not entitled to claims for damages.
If the customer does not meet his obligation to purchase, OM is, notwithstanding other rights, not bound to the provisions for a self-help sale, but rather can sell the delivery item by private contract.
If the customer remains in arrears with the acceptance longer than eight days after receipt of the notification of readiness to make delivery, the OM can set a grace period of eight days with the statement that OM will reject acceptance after expiry of the grace period. After the expiry of the time period, OM can withdraw from the contract and claim damages. It is not necessary to set a grace period if the customer seriously and definitively refuses acceptance or is obviously unable to pay the purchase price within the grace period.
OM's claim for damages is 30% of the purchase price. The amount of damage is to be set higher or lower if OM proves greater damages or the customer proves lower damages.
For export transactions, the latest "International Commercial Terms" of the "International Chamber of Commerce" in Paris shall apply as terms of delivery. The "EXW Eschenlohe" (ex works Eschenlohe) clause shall apply.
Payment must be made in advance.
If a payment is agreed by documentary collection, the "uniform rules for collections (ERI)" shall apply. For letters of credit, the latest "uniform rules for letters of credit (ERA)" shall apply.
In favour of OM, the customer shall open an irrevocable, affirmative and assignable letter of credit in favour of OM at the bank named for the customer by OM via a foreign trade bank in his country ten days before the agreed shipping date so that the payment takes place upon viewing of the documents.
V. Retention of title
Deliveries remain the property of OM until the fulfilment of all OM entitled claims against the customer, even if the purchase price is paid for specially designated claims. For a current invoice, the reserved property for the deliveries (reserved goods) are considered a security for the balance owed to OM. The consolidated companies known and belonging to the customer are also considered as the customer.
In the event of customer processing of other goods that do not belong to OM, the provisions of § 947 German Civil Code apply with the consequence that the OM's co-ownership of the new item is now reserved goods within the meaning of these conditions.
The resale of the reserved goods is permitted to the customer only in the ordinary course of business, under the condition that he also agrees on a retention of title with his customers pursuant to section 1.) and 2.) The customer is not entitled to other disposals of the reserved goods, in particular pledges and transfer by way of security.
In the event of resale, the customer hereby cedes the receivables resulting from the resale and other claims against his customers with all ancillary rights to OM already now until the fulfilment of all OM claims. If the reserved goods are resold according to section 2.), the assignment of the purchase price claim applies in the amount of the invoice value of the reserved goods of OM.
If the value of the securities existing for OM exceeds their total receivables by more than 10%, OM is obligated in this respect at the request of the customer to release securities at the discretion of OM.
Seizures or confiscation of reserved goods are to be reported to OM immediately. Resulting investment costs shall be borne by the customer.
If OM uses its retention of title by revoking reserved goods, OM is entitled to sell the goods by private contract or to auction them off. The revocation of reserved goods shall be sold or auctioned, but not sold for more than the agreed delivery prices. Additional claims for damages remain reserved. There is no withdrawal from the contract in the revocation and seizure of reserved goods by OM.
Within two years after the delivery of the goods, OM warrants that the goods are free of defects that nullify or considerably reduce the suitability of the goods under normal usage and operation conditions. Claims for material defects do not exist if the defect or damage is due to natural wear, or if it was caused by the customer not immediately providing notification of a defect after its discovery, or the purchase object has been improperly handled or overloaded, or if the purchase object has been improperly maintained, repaired or serviced, parts have been installed in the purchase object whose use was not approved by OM, or the purchase object or parts of it have been modified in a manner not approved by OM, or the customer has not followed the instructions regarding handling, maintenance and care of the purchase object (e.g. operating instructions).
A special quality of the goods sold by OM or their suitability for a special use is not considered agreed unless another written agreement has been expressly made by the contract parties.
Notices of defects and complaints of any kind must be made immediately. Warranty claims against OM are ruled out in the event of omitted or delayed objections.
The warranty claims are limited to a supplementary performance, namely to the right of rectification of defects and/or replacement at the discretion of OM. OM is to be granted reasonable time and opportunity for this supplementary performance. If OM is denied this possibility, OM shall in this respect be exempt from the supplementary performance and from other claims for defects. The customer only has a right to withdrawal or reduction if a repeated defect rectification and/or replacement by OM has failed.
Claims for damages or reimbursement of expenses against OM only exist in the event of wilful intent and gross negligence. There is no liability for distant and/or consequential damages.
The provisions of §§ 478 and 479 of the German Civil Code for rights of recourse remain unaffected with the stipulation that claims for damages from OM are only owed if the defect is due to intentional or grossly negligent behaviour by OM and the damage is not death or injury to body or health.
VII. Liability in the event of death or injury to body and health and in the event of wilful intent and gross negligence
The aforementioned limitations of exclusion and liability do not apply in the case of death or injury to body and health that is due to a negligent breach of duty by OM or a wilful or negligent breach of duty of a legal representative or agent of OM.
The same also applies in cases of other damages that are due to a grossly negligent breach of duty by OM or a wilful or grossly negligent breach of duty by a legal representative or agent of OM as well as in the case of a violation of a cardinal obligation from the contract as well as in cases of legally prescribed mandatory liability.
B. General conditions of purchase
I. Scope of application
The following conditions are exclusively decisive for all purchase contracts, orders and deliveries. Order confirmations of the seller with different terms and conditions than the conditions of OM are not recognised. The conditions of purchase of OM also apply for future orders. Deviations are only effective if they are expressly communicated in writing by OM and are recognised.
The seller guarantees that the goods delivered to OM meet the applicable legal and regulatory requirements for their operation and their use and do not violate the rights of third parties.
OM is not obligated to inspect the delivered goods themselves. An obligation reprimand the supplier only exists within 14 days from the receipt of a notice of defect from the purchaser of the delivered goods.
In the event of withdrawal, OM can exclude already received partial deliveries from the rescission at their discretion.
IV. Prohibition of assignment and contractual exclusion of set-off
The seller is not entitled cede his claims against OM to third parties.
The offsetting is only permitted with undisputed or legally established claims.
V. Place of performance
Eschenlohe is the place of performance for payments and services of OM.
C. Final provisions
I. Applicable law
The legal relationships between OM and third parties is subject exclusively to German law. International Sales Law does not apply. The language of negotiation and contract is German.
Modifications, supplements, whole or partial nullifications due to agreements must be in written form to be effective. This also applies to this clause itself. Oral supplementary agreements - even those before signing the contract - are not effective.
II. ourt of jurisdiction / place of performance
Eschenlohe is the exclusive court of jurisdiction and place of performance for mutual obligations.
III. Duty to inform
The customer must inform OM immediately in the event of accidents when using goods supplied by OM. He shall keep the goods in question or reclaim them from his customers and provide them to OM upon request. If the customer violates this duty, he alone shall bear the damages he suffered, reimburse OM for resulting disadvantages and release OM from claims for damages by third parties for damages that result from the breach of duty.
IV. Severability clause
If one or more of the above provisions should be or become invalid, it shall not affect the effectiveness of the other provisions. The invalid provision is to be replaced by an effective provision that fulfils the invalid provision with its pursued economical and legal purpose insofar as is possible.
As of: 26.04.2014
Oberland Mangold GmbH