- The following general terms and conditions apply to contractual relationships with business people in the context of business operations and with corporate bodies according to public law, including special assets under public law.
- Our deliveries, services and offers take place exclusively on the basis of these terms and conditions. They thus apply to all future business relations. At the latest, these conditions are considered to have been accepted with the acceptance of the product or service. The validity of contradictory terms and conditions is thus contradicted. This is also the case when the business partner refers to his terms and conditions or conditions of purchase through counter-affirmations or other methods.
- Deviations from these terms and conditions are only effective when confirmed in writing by us. These terms and conditions replace all previous terms and conditions.
II. Offer and scope of delivery
- The documents relating to the offer, such as illustrations, drawings, weights and measures, are only approximately decisive when they are not expressly designated as binding. The supplier may only make plans designated by the recipient as confidential available to third parties with his written consent.
- The offers of the supplier are without engagement and non-binding. Declarations of acceptance and all orders require the written confirmation of the supplier to be legally valid. The same applies to addenda, amendments or supplementary agreements.
III. Prices and payment
- Prices are without engagement. All orders are only accepted on the basis of the prices valid at the time of ordering and are understood as not including shipping costs. The prices do not include the relevant mandatory value added tax.
- When not otherwise agreed upon, the invoices of the supplier become payable in full 30 days following invoicing. Payment is first considered as having been made when the supplier has the amount at his disposal.
- The orderer is only authorised to offset, retain or reduce, even when notifications of defects or counterclaims are asserted, when the counterclaims are undisputed or have been determined without further legal recourse. However, the orderer is also not authorised to retain due to counterclaims from the same relationship.
- When payments are deferred or the orderer is in default, we are authorised to charge interest to an amount of 8% p.a. above the respective basic interest rate in addition to the purchase price claim.
IV. Delivery period
- The term of delivery is extended appropriately in the case of measures in the context of labour disputes, especially strikes and lockouts, as well as in the event of unforeseen obstacles beyond the control of the supplier, insofar as such obstacles can be documented as having a considerable influence on the production or delivery of the delivery object. This also applies when the circumstances occur with sub-suppliers. The aforementioned circumstances shall not be attributed to the supplier if they occur during an existing period of delay. The supplier shall inform the orderer of the commencement and conclusion of such obstacles in important cases as soon as possible.
- When the orderer experiences damages due to this delay that are not due to the gross negligence or wilful misconduct of the supplier, compensation for damages will not be provided.
- When shipment is delayed at the wish of the orderer, the supplier is authorised, following the setting and fruitless expiration of an appropriate term, to otherwise dispose of the delivery object or to deliver it to the orderer with an appropriately extended term.
- The observance of the term of delivery presumes the fulfilment of the contractual obligations of the orderer.
- When not otherwise agreed upon, call off orders are to be completely accepted within one year.
V. Transfer of risk and acceptance
- The risk is transferred to the orderer no later than with the shipment of the delivery parts, even when partial deliveries are undertaken or when the supplier has also undertaken to provide other services. Upon request of the orderer, the shipment is to be insured by the supplier at the expense of the orderer.
- Should shipment be delayed for reasons for which the orderer is responsible, the risk is transferred to the orderer from the day on which readiness for shipment is notified. However, the supplier is obligated to affect the insurance policy demanded by the orderer upon the wish and at the expense of the orderer.
- Delivered objects, even when they have insignificant defects, are to be accepted by the orderer, irregardless of the rights arising from paragraph VII.
- Partial deliveries are permitted.
VI. Reservation of title
The supplier reserves title to the delivery object until all claims of the supplier made of the orderer originating from the business relationship, including future claims, also from contracts closed simultaneously or subsequently, have been settled. This also applies when individual or all claims of the supplier have been included in an open invoice and the balance has been balanced and acknowledged. In the event of behaviour contrary to contract on the part of the orderer, especially in cases of default of payment, the supplier is authorised to recover the delivery object following a dunning letter and the orderer is obligated to return. The recovery and the attachment of the object on the part of the supplier does not represent withdrawal from the contract, unless a declaration of withdrawal in writing on the part of the supplier exists. The ruling of Paragraph 13, Sec. 3 of the Consumer Credit Act remains unaffected. In the event of attachment or other intervention on the part of third parties, the orderer must inform the supplier in writing without delay. The orderer is authorised to resell the object of delivery in a correct business transaction. However, he already now surrenders to the supplier all claims arising for him with reference to the receiver or third parties in the context of the resale, regardless of whether the goods subject to retention of title are resold without or following processing. The orderer shall also be entitled to collect these claims after the surrender. The capacity of the supplier to collect the claims remains unaffected by this. However, the supplier is obligated to dispense with collecting the claims as long as the orderer meets his payment obligations in an orderly fashion. The supplier may demand that the orderer disclose the surrendered claims and its debtors, provide all necessary information for collection, turn over the associated documents and inform the debtors of the surrender. When the object of delivery is resold together with other goods not belonging to the supplier, the claim of the orderer made against the recipient to the amount of the delivery price agreed upon between the supplier and the orderer is considered surrendered. The processing or alteration of the goods subject to retention of title shall always be conducted by the orderer on behalf of the supplier. If the objects of delivery subject to retention of title are processed together with other objects not belonging to the supplier, the supplier acquires partial ownership of the new object to the value of the goods subject to retention of title in relation to the other processed objects at the point in time of processing. The same applies to the object resulting from the processing as for the goods subject to retention of title. The supplier is obligated to release the securities to which he is entitled upon request of the orderer to the extent that their value exceeds the total claim arising from the business relationship by more than 20%, when this has not yet been settled.
VII. Liability for defects and delivery
The supplier is liable for defects of the delivery as follows:
a) All of those parts are to be repaired at no charge or delivered new at no charge and at the discretion of the supplier that prove to be unusable or significantly impaired in their utility within a period of 24 months of commissioning as a result of a condition existing prior to the transfer of risk, especially due to defective design, poor materials or inadequate execution. The supplier must be notified of the discovery of such material defects in writing immediately. However, recognisable defects are to be reported in writing no later than eight days following receipt of the goods. Section 377 of the German Commercial Code always applies to the obligations of inspection and giving notice of defects on the part of the orderer. Replaced parts shall become the property of the supplier. When it is not possible to correct the defects or provide a replacement delivery, or when the supplementary performance miscarries, the buyer has the right to withdraw from the contract, reduce the scope or to compensation for damages. Claims to compensation for damages are limited to the cases in which the defects can be traced back to grossly negligent conduct or wilful misconduct on our part or on the part of our proxies or vicarious agents. Liability for the replacement of consequential damages arising from the defects is excluded. However, claims arising from guarantees of quality, especially including those that should be secured by the buyer/orderer against the risk of consequential damages arising from defects, remain unaffected by this. The liability for damages arising from injury to life, limb or health resulting from a defect remain unaffected.
b) If shipment is delayed at no fault of the supplier, liability expires no later than 24 months following the transfer of risk.
- The right of the orderer to assert claims resulting from defects expires in all cases no later than 24 months following the timely notification of defects, but at the earliest with the expiration of the guarantee period.
- In order to carry out all of the repairs and replacement deliveries judged necessary at the discretion of the supplier, the orderer is to allow for the necessary time and opportunity agreed upon with the supplier. The supplier is otherwise exempted from liability for defects. Only in the event of the imminent endangering of operational safety and to prevent disproportional damages, whereby the supplier is to be notified immediately, or when the supplier is behind schedule with the correction of the defect and the orderer has a contractually defined interest in the provision of the service on schedule, or when the supplier seriously and categorically refuses to correct the defect or when special circumstances arise that justify the immediate self-correction of the defect on the part of the orderer, taking into consideration the interests of both parties, does the orderer have the right to correct the defect himself, or to have it corrected by third parties and to demand reimbursement of the arising costs from the supplier.
- Of the costs arising directly from repairs or replacement delivery, the supplier bears the costs of the replacement component including shipping, when the complaint proves to be justified. The orderer bears any other costs.
- Liability is exempted for the consequences of alterations made or maintenance work carried out incorrectly by the orderer or third parties without the advance permission of the supplier.
- The foregoing paragraphs contain the guarantee conditions for the products and exclude other guarantee claims of any kind, except in the event of grossly negligent or wilful misconduct on our part or on the part of our proxies or vicarious agents . Liability for damages resulting from injury to life or physical health remain unaffected by this.
VIII. General limitation of liability
- Claims to compensation for damages arising from a positive violation of a contractual duty, from culpability at the conclusion of the contract and from unauthorised actions, as well as on all other legal bases, are excluded, both with reference to ourselves and to our proxies or vicarious agents, except in the event of wilful misconduct or gross negligence . This applies in particular to compensation for direct or consequential damages arising from defects, unless liability is based on a guarantee of quality with the aim of securing the buyer against the risk of such damages. Liability for damages arising from injury to life, limb and health are unaffected by this.
- We assume no liability for the advertising messages of third parties (e.g. manufacturer as defined by Sec. 4, Par. 1 and 2 of the Product Liability Act or its accessories) concerning the quality of the object of purchase or with reference to the identification of certain properties of the object, when the ignorance of these advertising messages on our part is not wilful or grossly negligent in nature, or when the advertising messages were justified at the point in time at which the contract was concluded or when the advertising messages could not have influenced the decision to purchase. Wearing parts are excluded from the claims for defects.
IX. Right of the orderer to withdraw
- The orderer may withdraw from the contract when it is proved unequivocally impossible for the supplier to provide the complete service prior to the transfer of risk. The orderer may also withdraw from the contract when, in the case of an order of objects of the same type, the execution of a part of the delivery with reference to quantity is impossible, and when he has a justifiable interest in rejecting a partial delivery; if this is not the case, the orderer can reduce the service in return accordingly.
- When a delay in performance as defined by Section IV of the delivery conditions occurs, and when the orderer grants the delaying supplier an appropriate extension with the express declaration that he will refuse to accept the service following the expiration of this period, and this extension is not met, the orderer is authorised to withdraw.
- In the event that it becomes impossible to perform during the default in acceptance or at the fault of the orderer, the orderer is still obligated to provide service in return.
- The orderer is also authorised to withdraw when the supplier allows an appropriate extension granted to him for repairs or replacement delivery having to do with a defect for which he is responsible as defined by the delivery conditions to expire without result.
- When the orderer declares his withdrawal, all other subsequent claims of the orderer, in particular termination or reduction, as well as compensation for damages of any kind, including such damages not incurred by the object of delivery itself, are excluded when these damages are not due to wilful misconduct or grossly negligent conduct on our part or on the part of our proxies or vicarious agents, or when damages resulting from injury to life, limb or health are involved.
X. Right of the supplier to withdraw
In the event of unforeseen events as defined by Section IV of the delivery conditions, insofar as they significantly alter the economic importance or the content of the service, or have a significant influence on the operations of the supplier, and in the event of the impossibility of execution becoming retroactively apparent, the contract shall be appropriately adapted. When this is not economically justifiable, the supplier has the right to entirely or partially withdraw from the contract. Claims to compensation for damages on the part of the orderer due to such a withdrawal do not exist, unless these claims are due to grossly negligent conduct or wilful misconduct on our part or on the part of our proxies or vicarious agents. Should the supplier wish to make use of his right to withdraw, he is to inform the orderer without delay upon recognising the significance of the event, even when an extension of the delivery period has initially been agreed upon with the orderer.
XI. Applicable law, legal venue, partial nullity
- The law of the Federal Republic of Germany applies to these terms and conditions and to the entire legal relationship between the supplier and the orderer, and expressly excludes the applicability of the UN Convention on Contracts for the International Sale of Goods.
- Place of performance for all reciprocal obligations is the location of our delivering factory.
- Should a provision in these terms and conditions or a provision in the framework of other agreements be or become ineffectual, the effectiveness of the other provisions or agreements is not affected by this.
Status: March 2020 Oriental Motor (Europe) GmbH