General Terms and Conditions of Max Baermann GmbH
- Applicable Conditions / Preamble
The legal relationship between the Supplier and the Purchaser shall be governed by these Conditions and any other agreements. Changes and additions must be made in writing. Other general terms and conditions shall not apply even if they have not been expressly contradicted in individual cases.
1. Delivery contracts (order and acceptance) and delivery call-offs as well as their amendments and supplements must be in writing. Delivery call-offs can also be made by remote data transmission.
2. If the Supplier does not accept the order within three weeks of receipt, the Purchaser shall be entitled to cancel the order. Delivery call-offs shall become binding at the latest if the supplier does not object within two weeks of receipt.
1. Payment shall be made net 30 days after the invoice date.
In the event of acceptance of early deliveries, the due date shall be based on the agreed delivery date.
2. Payment must be made by bank transfer.
3. In the event of a defective delivery, the Purchaser shall be entitled to withhold payment in proportion to the value until proper performance 4. Without the prior written consent of the Purchaser, which may not be unreasonably withheld, the Supplier shall not be entitled to assign his claims against the Purchaser or to have them collected by third parties. In the case of submissions of extended retention of title, consent shall be deemed to have been granted.
If, contrary to sentence 1, the Supplier assigns his claims against the Purchaser to a third party without the latter’s consent, the assignment shall nevertheless be effective. The Purchaser may, however, at his discretion, make payment to the Supplier or to the third party with the effect of a full discharge.
- Notification of Defects
The Purchaser shall notify the Supplier in writing without undue delay of any defects in the delivery as soon as they are discovered in the ordinary course of business. In this respect, the Supplier waives the objection of a delayed notification of defects.
1.) The contracting parties undertake to treat as business secrets all commercial and technical details which are not in the public domain and which become known to them through the business relationship.
2.) Drawings, models, templates, samples and similar objects may not be handed over or otherwise made accessible to unauthorised third parties. The reproduction of such items is only permitted within the scope of operational requirements and copyright regulations.
3.) Subcontractors shall be obliged to do the same accordingly.
4.) The contracting parties may only publicise their business relationship given prior written consent.
- Delivery Dates and Delivery Times
Agreed dates and times are binding. Decisive for compliance with the delivery date or the delivery period is the receipt of the goods by the Purchaser. If delivery “DDP – Delivery Duty Paid” has not been agreed, the Supplier shall make the goods available in good time, taking into account the usual time for loading and dispatch.
- Delay in Delivery
1.) The Supplier is obliged to compensate the Purchaser for the damage caused by the delay. This does not apply to loss of profit and damages from business interruption.
2.) In the event of slight negligence, compensation shall be limited to freight costs, retrofitting costs and, after the fruitless expiry of a grace period or in the event of the loss of interest in the delivery, to the additional expenses for covering purchases
- Force Majeure
Force majeure, industrial disputes, riots, official measures and other unforeseeable, unavoidable and serious events shall release the contracting parties from their performance obligations for the duration of the disruption and to the extent of its effect. This shall also apply if these events occur at a time when the contractual partner concerned is in default. The contracting parties are obliged to provide the necessary information without delay within the bounds of what is reasonable and to adjust their obligations to the changed circumstances in good faith.
- Quality and Documentation
The Supplier shall comply with the recognised rules of technology, the safety regulations and the agreed technical data, as well as legal requirements and the quality assurance agreement of Max Baermann GmbH for his deliveries.
Changes and deviations of the delivery item require the prior written consent of the Purchaser.
- Liability for Defects
1.) In the event of the delivery of defective goods, the Purchaser may demand the following if the respective statutory and the following conditions are met and unless something different is agreed: a.) Before the start of production (processing or installation), the Purchaser must first give the Supplier the opportunity to sort out the defect and to rectify the defect or to make a subsequent delivery or a replacement delivery, unless this cannot reasonably be expected of the Purchaser. If the Supplier cannot undertake this or not do so immediately, then the Purchaser can withdraw from the contract without any further time being specified and return the product at the Supplier’s risk. In urgent instances, he can himself undertake to eradicate the defect following consultation with the Supplier or have it carried out by a third party. The resulting expenses are borne by the Supplier. If the same product is again supplied in a faulty condition, then – following a written reprimand on the defective nature of the delivery – the Purchaser is entitled to withdraw from the scope of delivery and even from the non-fulfilled scope of delivery.
b.) On the fault being established after the start of manufacturing despite attention given to the obligation as per Section 4 Notification of Defects, then the Purchaser – based on §429 Para. 1.3 and 4 BGB – can demand subsequent fulfilment and compensation for the costs required for the subsequent fulfilment (without towing expenses) as well as the dismantling and installation costs (working costs, material expenses to the extent as agreed to) or with written agreement can reduce the purchase price.
c.) In the event of a culpable obligation infringement (e.g. as regards a clarification, counselling or examination commitment) the Purchaser can demand compensation for the resulting sequential defect damage and the sequential defect damage compensated for by the Purchaser for his customers in keeping with the law as based on Section 11 Liability. Sequential defect damage represents the damage which the Purchaser has suffered from the delivery of defective goods on other legally protected goods rather than on the goods themselves. The Purchaser only has further-reaching expenditure and compensation claims to make from the delivery of defective goods as per §437 BGB or from the provisions stipulated therein if these have been contractually specified. Notice is to be made of Section General Conditions Sub-section 1 in the case of fresh agreements to be concluded.
2.) The Purchaser is to readily provide the Supplier with the parts that he is to replace on request and at his expense.
3.) Claims arising from liability for defects shall become statute-barred 36 months after the first registration of the vehicle or the installation of spare parts, but no later than 48 months after delivery to the customer. Unless otherwise agreed, the statutory limitation period shall apply to goods for commercial vehicles.
4.) Claims for defects shall not arise if the defect is attributable to violation of operating, maintenance and installation instructions, unsuitable or improper use, faulty or negligent handling and natural wear and tear as well as accessing the delivery item as carried out by the customer or third parties.
5.) In the event of defective deliveries, claims of the Purchaser under product liability law, tort and management without authority shall remain unaffected by this Section 10.
Guarantees of quality and durability must be expressly designated as such in detail in writing.
Insofar as no other liability provision has been made elsewhere in these terms and conditions, the Supplier shall only be obliged as follows to compensate the Purchaser for damage incurred directly or indirectly as a result of a defective delivery, due to a breach of official safety regulations or for any other legal reasons attributable to the Supplier. A limit of liability in the amount of the net reimbursement of the liability insurer applies.
1.) The obligation to pay damages is basically only given if the Supplier is at fault for the damage caused by him.
2.) If claims are forwarded against the Purchaser as a result of liability towards third parties contingent upon culpability under non-modifiable law, the Supplier shall assume such liability. The principles of § 254 BGB (German Civil Code) shall apply accordingly to the compensation of damages between the Purchaser and the Supplier. This shall also apply in the event of a direct claim of the supplier.
3.) The obligation to pay compensation is excluded insofar as the Purchaser for his part has effectively limited his liability towards his customer. In this context, the Purchaser shall endeavour to agree limitations of liability to the legally permissible extent and also in favour of the Supplier.
4.) Claims of the Purchaser are excluded to the extent that the damage is attributable to violations of operating, maintenance and installation instructions attributable to the Purchaser, unsuitable or improper use, faulty or negligent handling, natural wear and tear or repair.
5.) The Supplier shall be liable for measures taken by the Purchaser to avert damage (e.g. recall action) insofar as the Supplier is legally obliged to do so.
6.) The Purchaser shall inform and consult the Supplier immediately and comprehensively if he wishes to make a claim against the Supplier in accordance with the above provisions. He shall give the Supplier the opportunity to investigate the damage. The contracting parties will agree on the measures to be taken, in particular in the case of settlement negotiations 7.) The principles set out in section Default in Delivery Sub-section 1 shall apply accordingly insofar as no or insufficient affirmation exists on the part of the Supplier.
- Property Rights
1.) The Supplier shall be liable for claims arising from the infringement of industrial property rights and applications for industrial property rights (industrial property rights) in the event of contractual use of the delivery items, of which at least one from the family of industrial property rights is published either in the Supplier’s home country, by the European Patent Office or in one of the states of the Federal Republic of Germany, France, Great Britain, Austria or the USA.
2.) He shall exonerate the Purchaser and his customers against all claims arising from the use of such industrial property rights.
3.) This shall not apply if the Supplier has manufactured the delivery items according to drawings, models or other equivalent descriptions or information provided by the Purchaser and does not know that this will infringe property rights. Claims of the Purchaser are excluded insofar as he is responsible for the infringement of property rights. Claims of the Purchaser shall also be excluded if the infringement of the IPR is caused by specifications made by the Purchaser, by a change not foreseeable by the Supplier or by the supplies being modified by the Purchaser or being used together with products not provided by the Supplier.
4.) To the extent that the Supplier is not liable pursuant to Sub-section 3, the Purchaser shall exonerate the Supplier from all claims of third parties.
5.) The contracting parties undertake to inform each other without delay of any risks of infringement and alleged cases of infringement that become known and to give each other the opportunity to counteract any such claims by mutual agreement.
6.) At the request of the Purchaser, the Supplier shall inform the Purchaser of the use of published and unpublished proprietary rights and applications for proprietary rights to the delivery item.
7.) The principles for limiting liability contained in the section on Delay in delivery Sub-section 1 shall apply accordingly.
- Use of production equipment and confidential particulars of the Purchaser Models, matrices, templates, samples, tools and, in particular, production equipment, as well as confidential information
made available to the Supplier by the Purchaser or paid for in full by the Purchaser, may only be used for deliveries to third parties with the prior written consent of the Purchaser. The production equipment and the know-how of developments, moulds, tools, constructions etc. which Max Baermann GmbH produces on behalf of the Purchaser shall remain the property of Max Baermann GmbH even after payment has been made. All moulds, tools, constructions etc. of suppliers shall become the unrestricted property of Max Baermann GmbH after payment.
- Retention of Title
The Supplier retains title to all goods delivered by him until payment has been made in full, in which case all deliveries shall be deemed to be one continuous delivery transaction. In the case of a running account, the reserved property shall be deemed to be security for his balance claim.
If the goods are combined by the Purchaser with other items to form a single item and if the other item is to be regarded as the main item, the Purchaser shall be obliged to transfer co-ownership to the Supplier on a pro rata basis insofar as the main item belongs to it. . If the purchaser resells the delivered goods as intended, he hereby assigns to the supplier the claims against his customers arising from the sale, together with all ancillary rights, until all the supplier’s claims have been settled in full. At the supplier’s request, the purchaser is obliged to disclose the assignment to third party purchasers if there is good reason to do so and to provide the supplier with the information and documents required to assert his rights.
The supplier shall release the securities held by him to the extent that their value exceeds the claims to be secured by more than 20% in total.
- General Provisions
1.) When determining the amount of claims for compensation to be met by the Supplier in accordance with the sections on delay in delivery, liability for defects, liability and property rights, the economic circumstances of the Supplier, the type, scope and duration of the business relationship, any contributions to causation and/or fault on the part of the Purchaser in accordance with §254 BGB (German Civil Code) and a particularly unfavourable installation situation of the bought-in part shall be taken into account appropriately in favour of the supplier. In particular, the compensation, costs and expenses to be borne by the Supplier must be in reasonable proportion to the value of the bought-in part.
2.) If a contracting party ceases to make payments or if insolvency proceedings are instituted against its assets or out-of-court composition proceedings are applied for, the other party shall be entitled to withdraw from the unfulfilled part of the contract.
3.) Should any provision of these terms and conditions and the further agreements made be or become invalid, this shall not affect the validity of the remainder of the contract. The contracting parties shall be obliged to replace the invalid provision by a provision which comes as close as possible to the invalid provision in terms of business performance.
4.) The law of the Federal Republic of Germany shall apply exclusively, unless otherwise agreed. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11/04/1980 is excluded.
5.) The place of performance is the registered office of the Purchaser. For delivery something else can be agreed upon.
6.) The place of jurisdiction shall be the seat of the plaintiff or another responsible court
Status July 2018
Max Baermann GmbH