Terms & Conditions
General, Scope of application
- Our general terms and conditions shall apply exclusively. Any terms of the customer to the contrary or diverging from our general terms and conditions, shall only be valid if expressly accepted by us in writing. This shall also apply in the case that delivery is effected by us without reservation after the contract partner has objected to the validity of our conditions. Our general terms and conditions shall also apply even if we effect deliveries or render services to the customer without reservation and have notice of conflicting conditions or conditions of the customer diverging from our general terms and conditions.
- By placing an order, the contract partner shall accept the validity of our general terms and conditions for the complete duration of the business relations, also in relation to future business transactions.
- Our general terms and conditions shall apply only towards merchants in terms of § 24 of the German Law on General Terms and Conditions (AGBG).
- Any oral acceptance by our employees as well as other agreements - in particular changes to these general terms and conditions - shall only be valid if confirmed by us in writing.
- Technical and optical changes, also on the part of the producer, are subject to change without notice.
Offer, Tender document
- Unless otherwise agreed in writing, our offers are always made without any obligations.
- Unless another period of time is offered, we shall be bound by an offer especially prepared by ERMET-BUCK for a period of 30 calendar days from the date of the offer.
- Any drafts, drawings, organizational charts and the like, which are elaborated or submitted by ERMET-BUCK, shall remain the sole property of ERMET-BUCK. Without our prior consent, they shall neither be copied, nor be made accessible to any third parties nor be otherwise used. All property rights and copyrights shall remain with ERMET-BUCK.
- The acceptance of an order, the scope of delivery and the date of delivery shall be determined exclusively by our written order confirmation.
- We reserve the right to make changes to the subject matter of the contract, if these changes are the result of technical developments or if they have no considerable effects on the function of the subject matter of the contract.
- Any objections to order confirmations shall be made in writing immediately and have to arrive us within a period of eight days from the date of issue of the order confirmation at the latest. If objections are not made within the prescribed period of time, or if no objections are made at all, the written order confirmation shall be considered to be the binding agreement made by both parties.
- Any quotations and performances/services made or rendered by the seller shall be based on the details/data and documents provided to the seller. In the case of contract production according to drawing, the customer shall bear the risk of any possible infringements of property rights and shall be liable for damages to the seller in so far as the seller incurs costs therefrom. The seller shall not be committed to comply with any requests for changes subsequently made. If the seller complies with any requests for changes, it shall be entitled to separately invoice the costs incurred therefrom.
- Prices are subject to confirmation by a quotation and are indicated in Euros.
- Unless otherwise agreed in writing, our prices shall be ex works, excluding packaging, freight, customs duty and transport insurance.
Any additional supplies or performances/services such as testing and processing costs as well as changes made at the request of the contract partner shall be invoiced separately.
- Our prices do not include the statutory value-added tax. On the date the invoice is issued, the amount of the applicable statutory value-added tax shall be separately indicated on the invoice.
- If the wage, material or energy costs change substantially, each of the parties to the contract shall be entitled to demand, with due regard to these factors, a reasonable adjustment of the price.
- Rights of offset shall only be available to the customer, if its counterclaims either have become res judicata or have been recognized by us. In addition, the customer shall be entitled to exercise a right of retention in so far as its counterclaim is based on the same contractual relationship.
Terms of payment
- Unless otherwise agreed, our invoices are to be paid as follows into the account indicated in each case:
Plastic parts: within 14 days after date of invoice less 2% discount, or 30 days strictly net.
- 1/3 upon placing of the order,
- 1/3 upon receipt of initial sample parts fit for use,
- 1/3 after approval of the parts, however 6 weeks after initial sampling at the latest, strictly net, deductions are not allowed.
- Deduction of discount shall only be allowed if all financial obligations from preceding deliveries and services have been met, and if deduction of discount was agreed upon in writing.
- The period allowed for payment detailed in our invoice shall be deemed to be the contractually agreed due date. If payment is not made by the due date, such shall automatically constitute a default, without any requirement for notice thereof. If the customer fails to pay on the due date, we shall be entitled to demand default interest to the amount of 4% p.a. above the base interest rate of the European Central Bank valid at the time. If we are in a position to prove that the damage caused by default is higher than that, we shall be entitled to claim a correspondingly higher compensation.
- Delivery shall be effected against invoice. In special cases, if no information on the customer's credit standing/financial soundness is available or its credit standing/financial soundness is considered to be insufficient, our shipments shall be made against pre-payment or cash on delivery.
- We will only accept bills of exchange on the basis of a specific written agreement. Any possible discounting and bill charges shall be at the expense of the customer and shall be immediately due.
- In case of delayed payment we shall, after giving written notice thereof to the contract partner, be allowed to suspend the performance of our duties until receipt of such payments.
In the event that after concluding the contract we become aware of any circumstances which may reduce the creditworthiness of the contract partner, we shall be entitled to refuse to perform and allow the contract partner a reasonable period within which payments are to be made concurrently with supply or security is to be provided. If the contract partner refuses to do so, or if such deadline expires without success, we shall be allowed to withdraw from the contract and demand damages for non-performance.
Delivery time and deliveries
- The delivery time shall start after all documents (dimensional drawing, data, specifications, etc.) required for executing the order have been received, after all questions necessary for carrying out the order have been clarified, and after an advance/down payment possibly agreed upon has been received.
- We shall, even in cases involving agreed binding dates and deadlines, not be responsible for any delay in the supply of goods or services resulting from acts of God or other events which substantially restrict the supply or make it impossible, including in particular labor disputes, disruptions in operations, difficulties in the supply of energy, unrest, actions of the authorities, failure to deliver by our suppliers, transportation disruptions etc.. In such cases we shall be obliged to notify without delay the contract partner of the difficulty in the supply of goods or services as well as the likely period of delay. In such cases, any deadlines or periods for supply of services or goods shall be extended by the period of the disturbance plus a reasonable run-up period. Such unforeseeable events shall also allow us to terminate the contract in part or in whole. Any claims for damages by the contract partner are excluded unless such are based on an intentional or grossly negligent breach of duty on our part.
- If, after we have been in default, our customer grants us an appropriate extension period under threatening refusal of accepting delivery when deadline is broken, it shall be entitled to withdraw from the contract after the extension has ended fruitless. The customer shall only be entitled to assert claims for damages resulting from late or delayed delivery, if the delay was based on intent or gross negligence. Consequential damages are excluded from our liability.
- Partial deliveries of goods or the supply of services in installments shall, in so far as it is normal in the trade, be allowed and may be separately invoiced by us. Partial deliveries of goods and the supply of services in installments shall, as a special exception, be not allowed if they are unreasonable for the contract partner.
- Our duty to supply goods and services is subject to the timely and proper performance of the contractual duties of the contract partner, in particular to its duty to pay.
- If the customer does not determine a mode of dispatch, ERMET-BUCK shall be allowed to freely choose such to the exclusion of any liability for the choice made. If the customer requests modes of dispatch and/or packaging, which were previously not agreed upon and require additional expenses, the customer has to be bear the costs for them.
- If the customer is in default of acceptance or infringes other duties of cooperation, we shall be entitled to claim compensation for any damage incurred by us, including any additional expenses. In the event that the customer is in default of acceptance, the customer shall also bear the risk related to the accidental destruction or deterioration of the goods to be supplied. This shall also apply, if the customer has been informed by us that the goods are ready for dispatch and the execution of delivery is delayed on request of the contract partner.
Transfer of risk
- Usually (see above) our deliveries are agreed upon "ex works".
- The risk shall pass to the customer, as soon as it takes delivery of the goods at the seller. If delivery of the goods is carried out by persons not employed with the customer, the risk in the goods shall pass to the customer as soon as the consignment has been handed over to the persons carrying out the transport or as soon as the goods, for shipping purposes, have left the business premises of the seller. If dispatch of the goods is delayed on request of the customer, the risk in the goods shall pass to the customer as soon as it has been informed that the goods are ready for dispatch.
- If the goods are delivered by the seller's own personnel, the risk in the goods shall pass to the customer upon arrival of the goods at the customer, especially, if unloading of the goods is delayed due to reasons attributable to the customer.
- If requested by the customer, we will take out a transport insurance policy for the delivery. Any costs incurred in connection with this transport insurance shall be borne by the customer.
- In the case of deliveries to customers outside the territory of the Federal Republic of Germany, the customer shall bear the risk of possible patent infringements of the patent laws applicable in the customer's country.
- Unless otherwise agreed, the customer shall bear the ancillary costs incurred by insurances, customs duties, etc..
Notice of defects
- Notices of defects and other complaints must be filed in writing directly with ERMET-BUCK within a preclusive period of one week after receipt of the goods. Latent defects must be asserted in the same way within a preclusive period of one week as soon as they have been detected. The latter shall not apply to non-merchants and legal entities having equal status in terms of the German law on general terms and conditions (AGBG).
- Even after having filed notices of defects, merchants and legal entities having equal status in terms of the German law on the general terms and conditions shall not be entitled to assert any right of retention.
- The customer shall reimburse ERMET-BUCK for the costs incurred by any unjustified notices of defect.
- The liability of the supplier to the customer under its warranty is subject to the customer properly complying with the duties, as regards examinations and complaints, incumbent on the customer under §§ 377, 378 German Commercial Code (HGB).
- The warranty period shall be 6 months from the date of delivery of the goods.
- The supplier shall not be required to warrant, if the defects on the goods delivered are based on improper handling/use, normal wear, excessive strain or tampering or on changes/modifications made to the goods without having obtained the prior written approval from ERMET-BUCK. The same shall apply, if the defect is based on repair work carried out by personnel not authorized by us, or if the directions of use or operating or maintenance instructions of ERMET-BUCK were not complied with by the customer. Short and incorrect deliveries as well as immediately visible defects can only be complained about in writing by the customer within a period of 8 days after arrival of the delivery at the customer, if the customer is a merchant who has been entered in the commercial register as a merchant. Defects not instantly visible must be asserted within a period of 8 days after detection of the defect and within 6 months after delivery at the latest. At any rate, all customers shall be obliged to notify us in writing of obvious defects immediately after delivery and of latent defects immediately after they have been detected.
- On the request of ERMET-BUCK, the customer shall provide us or a third party appointed by us with a written attestation of the defect describing both the way the defects show themselves and the effects they have.
- If the complaint is justified, ERMET-BUCK or a third party appointed by us shall remedy the defects, at our option, either by repairing them free of charge or by providing a substitute delivery. We shall always be provided with several opportunities for remedying a defect. Should the attempts to remedy the defect or the substitute delivery prove to be ineffective, for which an adequate period of time and opportunity is to be granted to us, the customer, at its option, may demand reduction of the payment or annulment of the contract. Prior to making use of this right, the customer has to inform ERMET-BUCK accordingly in writing.
- Damage to goods in transit shall not fall under this warranty obligation.
- We shall be entitled to assign the fulfillment of warranty obligations partly or wholly to third parties.
- Return shipments of damaged goods are to be previously announced and shall only be allowed after ERMET-BUCK has given its prior and express approval.
- In the case of justified complaints, the customer, within the warranty period, shall have the option of returning defective goods to us either in original packaging or equivalent packaging by post (postage unpaid) or by rail (freight collect).
Return of goods
- Special orders and goods made to customer's specifications shall not be taken back.
- All suggestions, expert advice and information are made or given to the best of our knowledge and belief and without any liability. ERMET-BUCK shall not assume liability for damage or defects caused by improper treatment or handling, excessive strain, use of bought-in/external accessories, abnormal operating conditions and transport damage which shall be at the expense of the customer.
- Unless otherwise specified below, further claims of the customer – irrespective of the legal reasons – shall be excluded. We shall not be liable for any damage not caused to the subject matter of the delivery or service itself. The above release from liability shall not apply, if the cause of the damage was based on intent or gross negligence. Furthermore, it shall not apply if the customer asserts compensation claims for non-performance due to absence of a warranted quality.
- Insofar as we negligently injure an essential contractual obligation, our liability to compensate for personal injury or damage to property shall be limited to the amount covered by our public liability insurance. We shall be willing to give the customer insight into our insurance policy on request.
- ERMET-BUCK shall not be liable to the customer for damage caused by the fact that the customer has not, or not in time, filed a complaint in respect of a defect of goods.
- The warranty periods granted by us are also limitation periods and shall also apply to claims for replacement of consequential harm caused by a defect, unless tort claims are asserted.
- The aforementioned regulations shall not apply to claims according to §§ 1.4 of the German law on product liability. The same shall apply in the case of initial inability or attributable impossibility of performance.
- In so far as any liability of ours is excluded or limited, such shall also apply to our non-manual-staff, employees, staff members, representatives and vicarious agents employed with us.
- Should ERMET-BUCK, upon delivery, have discernibly injured any other contractual (collateral) duties, the customer shall not be allowed to assert claims for damages resulting therefrom, if it accepts the delivery item without reservations.
Retention of title
- All goods delivered by us shall remain our property until all payments resulting from the business relation as a whole have been received. In the event of breach of contract by the customer, especially if it is in arrears with payments, we shall be entitled to take the goods back. Our repossession of the object of purchase shall not constitute a withdrawal from the contract by us, unless expressly notified by us in writing. Seizure/attachment of the object of purchase by us shall not constitute withdrawal from the contract as such. We shall be entitled to exploitation of the object of purchase after its repossession. The returns of such exploitation shall be offset against the purchaser's liabilities minus reasonable costs incurred by such exploitation.
- The customer shall be obliged to treat the object of purchase with care. The customer, at its own expense, shall particularly be obliged to insure the object of purchase adequately at its reinstatement value against theft and damage by fire, water or vandalism. If maintenance and service work is required, the customer shall carry it out punctually at its own cost.
- The customer shall notify us immediately in writing in the case of any charge over the goods being claimed by any third party or any seizure of the goods by a third party, so that we can lodge a legal action according to § 771 of the German Code of Civil Procedure (ZPO). If the third party is unable to compensate us for the judicial and extra-judicial costs and expenses that we may incur by such legal action as per § 771 of the German Code of Civil Procedure (ZPO), the customer shall be liable for the loss incurred by us.
- The customer shall have the right to sell the delivery item on in the normal course of business, as long as it is not in default and subject to the condition that its purchasers cannot set off any counterclaims against the claims arising from the resale. However, even today, the customer shall assign to us all claims (to the final amount of the invoice including value-added tax) it may obtain in relation to its customers or third parties as a result of the resale. Even after assigning the claims shall the customer be authorized to collect the sum due. Our right to directly collect such payment ourselves shall remain unaffected by this. However, we commit ourselves to not collecting the sum due as long as the customer meets its payment obligations using the proceeds of sale, as long as it is not in arrears with the payment and, in particular, as long as no petition for institution of bankruptcy or composition proceedings has been filed or payments are not suspended. Should this be the case, however, we may require the customer to notify us of the claims assigned and of their debtors, to provide all the information necessary for collection, to hand over the documents pertaining to them and to notify the debtors (third parties) of the assignment.
- In the event of default in payment by the contract partner and after the expiry of a further reasonable period set for payment without payment being made, we, even if we do not withdraw from the contract, may demand the return of the reserved goods at the expense of the contract partner.
- The right of the contract partner to do resales and to obtain any claims therefrom shall extinguish automatically without any need for a further deadline to be set, if the conditions exist under which the contract partner could file a petition for institution of insolvency proceedings. The same shall apply if a deadline fixed by us in accordance with paragraph V.5 ends without any results. In the event that the right of resale of the contract partner ends, we may demand the return of the reserved goods at the expense of the contract partner. Additional freight, shipping/transportation and other expenses as well as any possible reduction in the value of the goods shall at any rate be reimbursed to us by the contract partner.
- If requested by the customer, we shall be obliged to release the securities due to us insofar as the value of the securities taken by us exceeds the claims to be secured by more than 20%. The selection of such securities to be released shall be left to our discretion.
Reservation of the right to rescind the contrac
- If, after conclusion of the contract, the seller gains knowledge of facts which, from the point of view of a prudent businessman, give reasons for doubts regarding the buyer's ability to pay, the seller shall be entitled to demand pre-payment prior to delivery.
- The seller shall be entitled to rescind the contract, if it or a third party have undertaken an unsuccessful enforcement attempt against the buyer or if a petition for institution of bankruptcy or composition proceedings against the buyer has been filed with the court.
- The seller shall also be entitled to suspend or withhold any further supplies, insofar as interim payments owed by the buyer are not made punctually.
- The customer's rights resulting from the contracts concluded with us shall not be assignable unless our consent was expressly given in writing.
- Insofar as plastic parts or assemblies are to be supplied and it is necessary to produce molds or tools for them, we shall remain the owner of the molds and tools manufactured by us or any third parties commissioned by us. After the last delivery of goods, for the production of which the tools and molds were used, the tools shall be kept by us in storage for a period of two years. However, we shall not be obliged on principle to keep the tools in storage after the last delivery has been effected. The molds or tools retained by us shall exclusively be used for carrying out further orders of the contract partner. The contract partner shall be notified in writing as to the expiry of the retention period. After the expiry of the retention period, the contract partner shall be invoiced for the storage costs to the amount indicated in the written notification.
- In the event that it is agreed that the contract partner is to become owner of the molds or tools, the title to the molds or tools shall pass to the contract partner after payment of the price indicated in the purchase order for these molds or tools. If, after placing of the purchase order, it will be agreed that the title to the molds or tools is to pass to the contract partner, the contract partner shall acquire ownership in them upon payment of the amount fixed in the agreement subsequently made. The transfer of the molds or tools to the contract partner shall be substituted by our keeping of such for and on behalf of the contract partner as described under point 1. During this retention period we shall just have the right of possession regarding the molds and tools. We shall label the molds and tools as third party property and, upon request of the contract partner, we shall insure them at its cost.
- Any changes/modifications to molds and tools based on the fact that the contract partner, after placing the order, provides new information or makes requests for changes shall be subject to special remuneration by the contract partner. The amount of the remuneration shall be determined by the written agreement to be made about the change to be implemented.
- The tooling costs agreed upon represent only shares in the costs. They do not include intellectual work and design services rendered by us. The design of molds and tools shall be considered as the "intellectual property" of ERMET-BUCK. Hereby already, we make a copyright claim for concepts, drafts, etc. presented or made by us or any third parties commissioned by us regarding molds and tools.
- The contract partner agrees that we shall be allowed to process and use person-related data of the contract partner received in the course of or in connection with our business relations to the extent permissible according to the German Federal Data Protection Act (Bundesdatenschutzgesetz).
- In the event that any provision of these general terms and conditions or any provision within the scope of other agreements is or becomes ineffective, the effectiveness of all remaining provisions/agreements shall not be affected. In such case, the parties to the contract shall be obliged to replace the ineffective provision with a provision or arrangement likely to achieve as far as possible the same economic success as the ineffective provision.
Place of jurisdiction, Choice of law
- The place of jurisdiction shall be the place of the head office of our company. This provision shall also apply if the customer has its residence abroad or has, after conclusion of the contract, moved its domicile or usual place of residence from the area of application of the German Code of Civil Procedure (Zivilprozessordnung), or if its domicile or usual place of residence is unknown at the time an action is brought. However, we shall also be entitled to select the court locally competent for the customer.
- These general terms and conditions shall be subject exclusively to the laws of the Federal Republic of Germany.