Terms and conditions of sale and delivery for BILSING AUTOMATION GmbH in Attendorn for legal transactions with businesses
Please note that the terms and conditions are for BILSING AUTOMATION GmbH transactions in Germany. Please contact your local group for their regional terms and conditions.
We, Bilsing Automation GmbH in Attendorn only handle orders placed with us in accordance with the following terms and conditions. These terms and conditions shall also apply for all future transactions with you, our customer. Our stated conditions apply in all cases, even when you have your own conditions. Your General Business Conditions will not apply to the contract conditions, without our specific agreement in writing.
1. Materialisation of the contract
Our offers are subject to change without notice and shall be subject to us being delivered with the correct goods on time by our supplier, unless the offer expressly states that they are binding. The drawings, samples, catalogues or other documents handed over or passed over to you by any means in connection with the offers and / or other statements in the course of preparations for entering into a contract shall remain our property and shall be at our disposal alone on the strength of our copyright and or patent right. Third parties may only be allowed access to them with our express consent.
The contract shall materialise, once all technical and commercial terms and conditions have been clarified, by us accepting your order with our written order confirmation. This shall also apply in those cases in which your order is passed over by our representatives.
Our order confirmation alone with its description of the services to be rendered by us shall stipulate the scope of our performance obligation as well as the details of the nature of our performance.
This shall also apply in those cases in which the performance owed by us is to be rendered to your specifications, in particular in compliance with a drawing produced by you. Provided that no particular production specifications have been made in the drawing, we may carry our production in accordance with DIN or ISO or the tentative standards in force at the point in time at which production commences.
When agreeing to submit sampling together with test reports, the normal industry-wide procedures applied by the German Automobile Association (VDA) are agreed. Only once production has been given express written clearance by you will the figures existing for the sampling be agreed as being the performance owed by us to comply with the contract.
We shall reserve the right to make technical modifications at all times, provided that they are compatible with technical progress and have been accepted by you, once we have notified you of the intended modification in writing, stating the justification for it.
The statements about the nature of the contractual products contained in the order confirmation, in catalogues and/or other written correspondence exchanged between us shall not constitute any guarantee within the meaning of § 276 Section 1 of the (German) Civil Code [BGB], unless we had expressly notified you of this in our written order confirmation and had also stated the success we guarantee.
If the goods are manufactured and delivered in a specific version specified by you in particular (by drawing, sample, or other specific information), you shall consequently accept the guarantee that no third party rights, in particular patents, utility patents and other protective and copyrights have been breached by the version you have specifically requested. You are obliged to exempt us from all claims asserted by third parties which could arise as a result of such a breach.
2. Tools
If we manufacture tools and / or devices required for production in accordance with drawing specifications and/or other design specifications passed over to us by you, we shall consequently claim a share of the manufacturing costs (proportion of tool-making costs) and we shall notify you of them in the course of contractual negotiations and invoice you after acceptance of the tool by you. The proportion of the cost of toolmaking will become payable once the output sample manufactured with the tool has been cleared by you, and no later than the first contractual delivery of products made with this tool.
Irrespective of the proportion of the costs paid by you, we shall remain the owners of the tool, which we shall use only for products delivered to you, unless, you allow us to also use the tool for products supplied to other customers in response to a written request by us for such permission.
We shall undertake to keep the tools in safekeeping after the last delivery. Should you notify us before this period has expired that further orders will be placed by you within a further year, we shall consequently be obliged to keep the tools in safekeeping for the period of time stipulated by you. Otherwise we shall be at liberty to dispose of the tools. The tools kept in safekeeping by us for you shall be covered by our company insurance policy and handled with the same care that we apply for our own property. If it turns out after having reached a certain number of items that the service life of the tool has expired, meaning that it can no longer manufacture to production tolerances, the issue of making a new tool or the repair of the existing tool at your expense is to be negotiated.
3. Prices
The prices in our offers are in Euro ex works excluding the statutory rate of value added tax in force at that time and excluding packing.
All the prices stated in our offers shall apply for a term of four months. All prices quoted in our order confirmation shall apply for the duration of the agreed period or six months at the longest.
Subsequent reductions in order volumes and/or the reduction of agreed call-offs shall entitle us to increase agreed unit prices as appropriate and also the proportion of tool costs to be borne by you as well. Our prices shall be based on the current normal costing factors.
If there is a sustained change in costing factors for call-off orders, we shall consequently be entitled to adjust the agreed unit prices at our equitable discretion, to take these changes in costs into account.
4. Payment
Our invoices are to be paid within 10 days from receipt of invoice to qualify for a prompt payment discount of 2% or in full within 30 days from the date of invoice. If payment is not made within 30 days we shall charge you default interest amounting to 8 percentage points above the base rate at that time.
We shall expressly reserve the right to accept drafts or cheques. They shall only be accepted for the purposes of payment as a matter of principle and shall only be regarded as having been paid with debt-discharging effect once they have been credited to our account. Discounting fees and other costs incurred by the means of payment shall be for your account.
You may only exercise the right of retention or offset counter-claims against our accounts if such counter-claims are not disputed or if they have been declared final and absolute in a court of law.
5. Delivery date and delivery
We shall state a delivery time to the best of our knowledge without a guarantee. Agreed delivery periods shall begin on the date of our order confirmation, but not, however, before all details on carrying out the order have been clarified. The delivery periods shall be regarded as having been observed if the parts owed by us leave our works by the agreed point in time or else are made available in the suppliers work, if you are in default with taking delivery of them.
We shall not be in default if we are unable to deliver through no fault of our own. We agree that we shall not be to blame for force majeure, strikes, lock-outs, accidents and other causes which result in work being partially or completely stopped, such as for example a shortage of materials, defects in operating materials, transport difficulties, shortages in power supply, operational disruptions of all types or at our suppliers. In all cases we shall be entitled to postpone the delivery to you by the duration of the hindrance. In all cases we shall however notify you straightaway of the beginning and probable end of such hindrances.
In the event of a default in delivery, you shall have to set us a reasonable subsequent period of at least 15 working days to deliver if you threaten to withdraw from the contract. Once this subsequent period has expired and we have failed to deliver, you may only assert your right to withdrawal from the contract to that part of the contract which has not been fulfilled by us. You may not however, assert that you no longer have an interest in the fulfilment of the contract.
If there is a significant deterioration in your financial status after the contract has been signed, or if we only become aware of such a deterioration in your financial status after the contract has been signed, we shall consequently be entitled to withhold our performance and to demand that you eliminate the risk to the purpose of the contract by furnishing us with an adequate security. If you fail to furnish us with a security as demanded by us within the set and reasonable period of time, we shall be entitled to withdraw from the contract and/or to demand compensation for damages.
Goods shall always be delivered in a version normal within the trade. Tolerances of up to +10% or -10% of the ordered volumes are allowed. Part deliveries shall be regarded as separate transactions. They shall be invoiced separately and are to be paid for separately.
For contracts with continual deliveries we are to be notified of types and allocations. If orders are not called off and allocated on time, we shall, once a set subsequent period has expired unsuccessfully, be entitled to make the allocations ourselves and to deliver, or to withdraw from, the part of the contract not yet fulfilled and to demand compensation for our shortfall as a result.
We shall conduct a check in our firm of the goods to be delivered covering dimensions, material characteristics to works drawings, as well as for surface defects and cracks, in so far as these can be detected with a visual inspection. The costs for these normal checks are included in the agreed prices.
Any additional inspection and the testing procedures to be applied (such as for example a 100% hardness test by applying the Brinell or Rockwell method, magnetic crack tests and checking for defects by using ultrasound and other methods) shall be subject to separate agreement and are to be stated precisely in the parts drawings, the orders and in the order confirmation. The additional costs of such tests will be calculated.
6. Packing, Dispatch and Passing of risk
Unless you notify us of specific requests, we shall reserve the right to select the method of dispatch at our equitable discretion, without being responsible for selecting the cheapest method of transport. All costs and risks for the goods associated with dispatch shall pass over to you when the goods leave our works, even if we deliver the goods on our own vehicles.
If the goods have been dispatched – regardless of who is paying for carriage – the risk shall pass over to you when they are passed over to the party entrusted with dispatch, and no later however than when they leave our works. You must notify us immediately of transit damage as soon as you receive the goods. We shall only insure the goods against damage in transit in those cases in which you have expressly appointed us to do so. In this case we shall invoice you for the insurance premiums we have paid for in advance but we shall not, however, accept any responsibility for insurance cover being provided.
If the goods are ready for dispatch, and if dispatch or acceptance is delayed for reasons for which we are not to blame, risk shall consequently pass over to you with receipt by you of the notification that the goods are ready for dispatch.
7. Duty to notify defects, Warranty and Liability
With reference to the fact that none of our statements constitutes a guarantee within the meaning of § 276 Section 1 of the (German) Civil Code [BGB], we shall furnish a warranty and accept liability for our goods and services in accordance with the following agreements as a supplement to the statutory regulations.
You are obliged to inspect the products supplied by us carefully – even if samples or test pieces have already been forwarded to you – straightaway on a random basis once you have received them to confirm that they are complete and in proper condition, and this includes the products being in compliance with the condition specified in the contract. A consignment shall be regarded as being approved if you do not notify us of a defect in writing within two weeks from receipt, assuming that the delivered parts are still in the condition in which they were in when delivered.
If the defect cannot be identified in the course of a proper inspection, it is however to be notified to us within 7 days of discovery at the latest in writing or by fax. You are however obliged to review the material parameters necessary for the processing you intend to carry out before you use the material in production. The materials are to be separated from comparable products from other manufacturers, so that it can be definitively clarified that the goods about which you have made a complaint originate from our consignments.
It shall be regarded as agreed that a complaint will not be justified by shortages of up to 0.5% of the order volume, of at least up to 2 pieces and shall have to be tolerated by you.
You are however, obliged to notify the haulier or freight forwarder of transit damage immediately when the goods are delivered to you and not to pass over a receipt for the goods without stating the damage on it. Given this, the duties of notification shall apply in accordance with the General Terms and Conditions of German Hauliers (ADSp).
If a notified defect is justified, we shall consequently be obliged to render subsequent fulfilment by repair or replacement as we see fit. We are however also entitled to credit you for the segregated parts. You may only demand a repair or replacement if the minimum quantity threshold stipulated in DIN 6903 is not reached as a result of the defective pieces.
We shall bear the costs of rectifying the defect provided that these have not been increased as a result of the goods delivered by us having been moved by you to a location other than the place of delivery stated by you.
If the end buyer of the goods in the delivery chain is a consumer, you shall consequently be entitled – subject to the additional preconditions in § 377 of the (German) Commercial Code [HGB] being satisfied – to recourse in accordance with the statutory provisions of § 478 and § 479 of the (German) Civil Code [BGB]. However, you will be only entitled to compensation claims for damages and expenditure in accordance with the following liability regulations.
We shall be liable for all damage – including any compensation claims for expenditure there may be – based on whatever legal reason only,
In the event of the culpable breach of important contractual duties we shall also be liable in the event of gross negligence by non-senior staff and in the event of ordinary negligence. In the latter case our liability shall however be limited to damage typical for the contract and reasonably foreseeable, which is limited to the covering sum of our product third party insurance.
All warranty claims, compensation for damages claims, and/or claims for the reimbursement of expenditure shall become time-barred one year from hand-over of the subject-matter of the contract.
8. Reservation of title
We reserve the title to all goods delivered by us until all – and also subsequent – accounts created as a result of the business relationship between you and us have been fulfilled. You are entitled to sell on the goods subject to the reservation of title in normal business transactions. However, you are not allowed to pledge the goods or assign them by bill of sale as a security. You are obliged to secure our rights to payment when reselling the goods subject to the reservation of title. In addition to this, you shall assign your rights from the resale of the goods subject to the reservation of title to us here and now. We accept this assignment. At our request you will have to provide us with the information necessary for the collection of the assigned accounts, and submit the documents at your disposal and notify the debtors of the assignment as well. You shall carry out any treatment or processing of the goods subject to the reservation of title for us without this creating any liabilities for us.
If the securities to which we are entitled in accordance with the above provisions exceed the accounts to be secured by 25%, we consequently, at your request, shall release consignments paid for in full on a case-by-case basis.
If the goods subject to our reservation at your premises are taken in execution by a third party, you shall consequently notify us of the levy of execution immediately and point out to the third party enforcing the levy of execution that the goods are subject to our reservation of title. All the costs incurred by us as a result of the levy of execution shall be for your account. The same shall apply analogously to any other impairment of our rights.
If we take back the goods as a result of the reservation of title, the invoiced value of the goods which could reasonably be achieved by selling the goods elsewhere will consequently be credited to your account in their place. However, our expenses incurred by selling them shall be for your account.
9. Place of fulfilment, Applicable law, Miscellaneous
The place of fulfilment is Attendorn and the sole place of jurisdiction for both parties is Olpe. The law of the Federal Republic of Germany shall apply including the UN law on sales (CISG).
Verbal side agreements shall only apply if they have been confirmed in writing.
In the event that a provision is invalid, the validity of the remaining regulations shall not be affected as a result. The invalid provision is to be replaced by an agreement coming closest to the economically intended objective.
All our former terms and conditions of delivery and payment are hereby repealed.
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