Terms
General Terms and Conditions of Sale and Delivery
of tedrive Steering Systems GmbH, Wülfrath.
of tedrive Steering Systems GmbH, Wülfrath.
I. Contractual Basis
"The legal relationships between tedrive Steering Systems GmbH ("tedrive") and the respective customer are based exclusively on these General Terms and Conditions of Sale and Delivery ("conditions"), as well as on the mandatory or remaining statutory regulations. Any individual or general change, supplementation or cancellation of this contractual basis can only become effective insofar as an agreement signed by both parties satisfies the corresponding written requirements of §§126, 126a of the German Civil Code. Insofar as the customer has formulated its own general (purchasing) conditions, their inclusion is also subject to the prerequisites for coming into force contained in the previous paragraph. For the avoidance of doubt concerning the contractual basis of the legal relationships, tedrive will reprint this paragraph separately on every offer and every order confirmation/declaration of acceptance in a conspicuous form. "
II. Conclusion of Contracts
1. The sale and supply contracts come into force by means of an order and its acceptance in written form. The written form requirement also applies to any change, supplementation or cancellation.
2. All offers made by tedrive are subject to confirmation and submitted without obligation. Orders and contracts from customers can be accepted by tedrive within a period of 2 weeks.
3. All of the documents relating to an offer, such as illustrations, descriptions, drawings, details of weights and measures and other technical data, as well as national, international, corporate or industry-wide norms and samples that are referred to - besides other information provided - are to be considered approximations unless they are expressly designated as being binding. Deviations that are standard in the trade, as well as deviations resulting from statutory regulations or representing technical improvements, as well as the replacement of components by equivalent parts, are permitted insofar as the usability of the item for the contractually intended purpose is not impaired.
4. tedrive shall retain the copyrights and rights of ownership with respect to all offers, quotations, drawings, calculations, plans and other documents – including those in electronic form. Only with prior written permission may the customer make these accessible to third parties; in all other cases the customer shall treat such items in the strictest of confidence. At the request of tedrive, or in cases where no contract comes into effect, the above documents shall be returned to tedrive.
5. For framework agreements relating to delivery schedules or make-and-hold orders, as well as the call-off orders themselves, paragraph 1 applies accordingly. In such framework agreements it is also possible to agree that in the case of orders and delivery schedules of the customer, as well as their supplementations, these may also be submitted by means of long-distance data transmission or by data carriers which can be read by machine.
6. Even without an explicit provision in the corresponding framework agreement, tedrive is entitled in the case of delivery schedules or make-and-hold orders to procure material for the entire order and produce the entire ordered quantity immediately. Any changes requested by the customer can therefore not be taken into consideration after conclusion of the contract unless the framework agreement expressly provides for this.
7. Partial deliveries are permitted in all cases in every contractual relationship.
III. Terms of Delivery
1. Unless otherwise stated by tedrive, all delivery dates and deadlines are non-binding.
2. Compliance with binding delivery dates and deadlines on the part of tedrive presupposes that all of the significant issues existing between the parties have been clarified and the customer has satisfied all of its duties and obligations, e.g. the transmission of the requisite documents, authorisations, certificates, plans and releases, and that any agreed down-payment has been received. Otherwise the delivery date or period shall be prolonged by a reasonable extent unless tedrive is itself responsible for the delay.
3. Compliance with these dates and deadlines is subject to the dispatch of the goods or to the notification that the goods are ready for dispatch by tedrive. If an acceptance test is to be carried out, the date of the acceptance test or notification from tedrive that the items are ready for acceptance shall be decisive, unless the customer has justification for refusing acceptance.
4. The delivery date shall be extended by a reasonable period in the case of measures associated with industrial disputes, particularly strikes and lockouts, as well as upon the occurrence of unforeseen hindrances for which tedrive is not responsible. Examples of these include force measure, measures ordered by public authorities, delays to the production of supplied parts for which tedrive is not responsible, interruptions to business operations and the failure of suppliers to provide agreed services, insofar as it can be shown that such hindrances significantly affect the production or supply of the goods. Such an extension to the delivery date shall also apply if tedrive is already in arrears with its obligations at the beginning of such situations, i.e. during the period of such situations tedrive shall not be liable for any legal consequences of the delay. In all cases tedrive shall inform the customer immediately of such situations.
5. Insofar as the events described in paragraph 4 render the supply or service to be provided by tedrive difficult or impossible and the hindrance is not only of a temporary nature, tedrive shall be entitled to withdraw from the contract. Insofar as the customer can no longer be reasonably expected to accept delivery due to the delay, the customer shall be entitled to withdraw from the contract.
6. Changes requested at a later time by the customer shall entitle tedrive to suspend supplying the items until the requested changes have been examined with respect to their implementability and effects, particularly with respect to costs and deadlines. The changes shall only become binding after they have been expressly confirmed in writing by tedrive. tedrive shall then be entitled to extend delivery dates and deadlines by a reasonable time in order to implement the changes.
7. The goods shall be packaged and dispatched appropriately in the usual commercial manner at the discretion of tedrive, taking into due consideration the respective circumstances.
8. Not later than at the time of dispatch of the goods from the tedrive factory (ex works - FCA Incoterms 2000), all risks shall be transferred to the customer. This applies irrespective of the mode of shipment that has been selected. If an acceptance test is to be performed, the risks shall be transferred upon acceptance.
9. Insofar as a delay occurs to the dispatch or acceptance of the goods for which tedrive is not responsible, the risks shall be transferred to the customer upon notification from tedrive that the items are ready for dispatch or ready for acceptance. In this case tedrive shall also be entitled - after setting a reasonable period of grace - to dispose of the goods elsewhere and supply the customer with other goods with a reasonable new delivery deadline.
10. At the request and expense of the customer, tedrive shall conclude any insurance required by the customer.
IV. Prices and Terms of payment
1. All prices are stated as net prices in euros and apply to deliveries ex works, are exclusive of packaging, freight, postage, insurance, all forms of taxes or charges, duties, costs for customs clearance or similar expenses. Unforeseen changes to the costs of raw materials, wages, energy etc shall entitle tedrive to make corresponding price adjustments. Insofar as delivery is effected more than four months after conclusion of the contract, the list prices of tedrive at the time of delivery shall apply.
2. Payments are to be effected in cash without deduction within 14 calendar days of the date of the invoice.
3. The declaration of any setting-off of amounts or the exercise of a right of retention by the customer is only permitted with respect to claims against tedrive which have been legally established or which are undisputed.
4. Payment by means of bills of exchange or cheques is excluded in all cases.
5. In addition to statutory rights, in the case of payment arrears tedrive shall have the right to declare all claims by tedrive associated with the business relationship as being due for payment immediately or to demand collateral. In such cases tedrive shall be entitled to effect any outstanding deliveries only in return for advance payment or the provision of a sufficient amount of collateral.
The above also applies with respect to the risk associated with the intrinsic value of tedrive’s accounts receivable from the customer, e.g. resulting from a not inconsiderable deterioration in the customer's creditworthiness.
6. The customer is not entitled to withhold payments due to claims which the customer has submitted pertaining to defects, unless tedrive is provided with a sufficient level of collateral. In this case a maximum of 30% may be temporarily withheld.
7. Partial or premature deliveries may be brought to account by tedrive with immediate effect.
8. In cases of significant advanced financing on the part of tedrive, the customer may be requested to effect advance payments.
V. Retention of Title and Security Interests
1. tedrive reserves the right to retain ownership of all goods until all claims of tedrive against the customer have been fulfilled without reservation, including those subject to a condition. This also applies to claims of tedrive arising in the future with respect to the customer. In the case of an open account the reserved ownership serves as collateral for the account balance of tedrive.
2. In order to assert this retention of title, tedrive is entitled in the cases covered by section IV paragraph 5 to demand the immediate surrender of the goods subject to the retention of title to the exclusion of the right of retention, unless these are counterclaims which have been legally established or are undisputed. If the customer does not comply with this demand immediately, tedrive shall be entitled to enter the customer's premises in order to secure direct possession of the goods subject to the retention of title. In such cases the customer shall provide information on the whereabouts of the goods and - if necessary - grant tedrive the right to inspect the relevant business documents.
3. Without prejudice to the payment obligation of the customer, tedrive is entitled to a) sell the goods that have been taken back at its own discretion and for the best outcome and credit the revenues or b) credit the goods that have been taken back at the price charged by tedrive to the customer (contract price), minus any discounts and other price reductions, and deducting any loss in value In all cases we are also entitled to deduct our costs of taking back the goods from the credit note.
4. The customer shall notify tedrive without delay of any attachment or other form of third-party impairment to the proprietary rights of tedrive and shall confirm the proprietary right both to third parties and to us in writing. Any hypothecation or transfer by way of security of the goods supplied subject to the retention of title by the customer is not permitted.
5. The customer shall insure the goods subject to the retention of title to a sufficient extent, in particular against fire and theft. Claims against the insurance relating to cases of damage to or loss of the goods subject to the retention of title are hereby assigned to tedrive to the extent of the value of the goods. The customer shall inform the insurance company of the assignment of claims.
6. The acquisition of ownership on the part of the customer to the goods subject to the retention of title in accordance with §950 of the German Civil Code in the case of the processing of the goods subject to the retention of title to form a new object is hereby excluded. Any processing shall be performed by the customer on behalf of tedrive, without any obligations arising for tedrive as a result. The processed goods shall be deemed goods subject to the retention of title within the meaning of these conditions. In cases where the goods are combined, mixed or joined to goods not belonging to tedrive (§§947, 948 of the German Civil Code), tedrive shall have co-ownership of the new item or overall quantity in the same ratio as the goods subject to the retention of title had at the time of their combination, mixing or joining together to the value of the other combined, mixed or joined goods. Insofar as the customer obtains sole ownership of the new item, the contractual partners hereby agree that the customer shall grant tedrive co-ownership of the new item or overall quantity in the same ratio of the value of the processed or combined, mixed or joined goods subject to the retention of title as the total value of the new item or overall quantity. The new items produced shall then be deemed goods subject to the retention of title within the meaning of these conditions. The customer shall then store them with the due diligence of a prudent businessman on behalf of tedrive and undertakes to provide tedrive with the information required to exercise its rights and grant tedrive access to its documents in this respect.
7. a) The accounts receivable of the customer from the resale of the goods subject to the retention of title are hereby assigned with all ancillary rights to tedrive, irrespective of whether the goods subject to the retention of title are sold on with or without being processed, combined or mixed to one or more customers. Insofar as the assigned claim against the third party debtor has been included in an open account, the agreed assignment shall also refer to the claims associated with the current account. The assigned claims shall serve the purpose of securing all rights and accounts receivable of tedrive in accordance with paragraph 1.
b) In cases where the goods subject to the retention of title are sold by the ordering party together with other goods which do not belong to tedrive - either without or after being combined, mixed or processed - the assignment to tedrive of the claim relating to the purchase price in accordance with paragraph 8 a) shall be deemed to have been agreed to the extent of the contractual price for our goods subject to the retention of title.
c) The customer is entitled and authorised to sell on or use in any other manner the goods subject to the retention of title only on condition that the accounts receivable referred to under a) and b) are transferred to tedrive. The customer is not entitled to dispose of the goods subject to the retention of title in any other manner.
d) The customer is entitled to collect the accounts receivable associated with the resale of the goods in spite of the assignment. The right of tedrive to collect the accounts receivable shall not be affected by this collection authorisation of the customer. tedrive shall not, however, collect the accounts receivable itself as long as the customer duly complies with its payment obligations. At the request of tedrive the customer shall inform tedrive of the debtors associated with the assigned accounts receivable, and shall notify the debtors of the assignment. tedrive is entitled to enter the premises of the customer in order to inspect the documents required for the establishment and assertion of the accounts receivable assigned to tedrive, as well as to remove them for a short time or copy them.
f) tedrive is entitled to revoke the authorisation of the customer to sell on the goods subject to the retention of title and collect the accounts receivable assigned to tedrive with immediate effect if the customer falls into arrears with its payments to tedrive or has difficulties paying its liabilities due to a significant deterioration in its financial circumstances. If an application is submitted for the opening of insolvency proceedings with respect to the customer's assets, all payments are discontinued or an affirmation in lieu of an oath is submitted in accordance with §807 of the German Code of Civil Procedure, the authorisation to sell on the goods subject to the retention of title and collect the accounts receivable assigned to tedrive shall automatically lapse. If tedrive has revoked the authorisation of the customer to sell on the goods subject to the retention of title or the authorisation has automatically lapsed, the customer shall be obliged to surrender the goods subject to the retention of title immediately to tedrive and procure immediate possession for tedrive. The customer shall also be obliged to grant tedrive the right to inspect the customer's business records, unless the customer provides extensive information with respect to the matter immediately. All of the costs incurred as a result of repossessing the goods subject to the retention of title shall be borne by the customer.
8. a) The retention of title according to the above provisions shall also remain in force if individual accounts receivable of tedrive are included in an open account and the balance has been drawn and recognised.
b) The retention of title according to the above provisions shall lapse when all of the claims referred to above under section V paragraph 1 have been satisfied. As a result the ownership of the goods subject to the retention of title shall be transferred to the customer, and the customer shall have the right to the assigned claims.
9. Insofar as the value of all collateral provided to tedrive exceeds the total value of the accounts receivable by more than 20% over a prolonged period, tedrive shall be obliged at the request of the customer to release collateral in this respect at the discretion of tedrive.
VI. Breaches of Duty and Liability of tedrive
1. Insofar as tedrive is in arrears with a delivery for reasons for which it is responsible and the customer can show that it suffers a loss/damage as a result, the claim for damage/loss caused by delay that the customer is entitled to assert shall be limited as follows: from the time of the second week of the delay, 0.5% for each full week of the delay - and overall not more than 5.0% - of the value of the part of the overall delivery which cannot be used on time or in accordance with the contract as a consequence of the delay. All further claims for damages or other claims are excluded. 2. Defects of Quality
a) All parts which are found to be defective as a consequence of circumstances for which tedrive is responsible before the time of the transfer of risk are to be repaired or replaced without defects (supplementary performance) free of charge at the discretion of tedrive.
b) The ascertainment of such a defect shall be notified to tedrive in writing without delay not later than 10 days after the transfer of risk or within 7 days of the delivery or acceptance test. §§377, 378 of the German Commercial Code shall apply accordingly. Otherwise supplementary performance shall be excluded unless the customer is not responsible for the delay.
c) Parts which are subject to a complaint shall be returned to tedrive only at the request of tedrive, with reasonable costs for the return being borne by tedrive.
d) The replaced parts shall be surrendered to tedrive at the request of tedrive, and their ownership transferred to tedrive.
e) For the execution of all work deemed necessary by tedrive for supplementary performance, the customer shall - after reaching an agreement with tedrive - provide tedrive with the necessary time and opportunity to execute the work, otherwise tedrive shall be exempt from any liability for the resulting consequences. Only in urgent cases in which operational safety is endangered, and in order to prevent disproportionate loss or damage - and whenever tedrive is not able to remedy the situation immediately - does the customer have the right to rectify the defects itself or have it rectified by third parties and demand reimbursement from tedrive for the expenditure involved. In such cases tedrive shall be informed in writing immediately at all times.
f) Of the direct costs incurred as a result of the supplementary performance, tedrive shall bear the costs of the replacement part, including shipping costs, provided that the complaint is found to be justified. Insofar as the customer demands compensation for the expenditure that it has incurred or which it has reimbursed to its own customer on the basis of statutory provisions, tedrive shall be liable for the payment of compensation as follows:
aa) Compensation shall only be effected for the installation, dismantling and transport costs incurred for the purposes of supplementary performance. For the determination of the level of this compensation, appropriate consideration shall be given to the type, extent and duration of the business relationship, as well as the degree of causation and any fault on the part of tedrive, as well as the installation situation of the supplied item to which the complaint refers. In particular, the compensation to be provided by tedrive must be appropriate with respect to the value of the supplied item to which the complaint refers, as well as to the annual turnover between tedrive and the customer with respect to these supplied items.
bb) The obligation to provide compensation shall be excluded insofar as the customer has itself effectively restricted its liability with respect to its own customers. In such cases the customer shall make every effort to agree liability restrictions, also in favour of tedrive, to the extent that this is legally permitted.
g) Within the framework of statutory regulations, the customer shall have the right to withdraw from the contract if tedrive - taking into account the statutory exceptions – allows an appropriate period for supplementary performance for the correction of a material defect that has been stipulated in writing to pass without success. If the defect is of a minor nature, the customer shall only have a right to a reduction of the contractual price. In all other cases the right to a reduction of the contractual price shall be excluded.
h) No warranty shall be provided in the following cases in particular: Inappropriate or improper use, faulty installation or commissioning by the customer or third parties, natural wear and tear, faulty or negligent treatment, improper maintenance, inappropriate equipment, special external influences not specified in the contract - insofar as these are not the responsibility of tedrive.
i) Guarantee pledges by the supplier, in particular guarantees concerning properties and durability, for example in delivery specifications, requirements specification sheets, technical specifications, specifications of services, service specifications or other documents, are expressly excluded in the absence of other written agreements between tedrive and the customer.
j) Insofar as the customer or a third party performs inappropriate repairs, tedrive shall not be liable for any resulting consequences. This shall also apply to any changes to the supplied object performed without the written agreement of tedrive.
k) For the function and running characteristics of the supplied objects, the results on the test bed of tedrive shall be decisive. tedrive shall not accept any liability for malfunctions occurring as a result of the installation conditions or improper operation or maintenance.
l) Any supplementary performance, irrespective of the form this takes, shall not under any circumstances be deemed to be admission of any claim by the customer.
m) No liability shall be accepted with respect to defects of quality where the items supplied - according to agreement - are not new goods.
3. Defects of Title
a) Insofar as the use of the supplied item results in the infringement of commercial property rights or copyrights of third parties in the Federal Republic of Germany at the time of transfer of ownership, tedrive shall - at its own expense - procure the right of the customer to continue to use the item or modify the supplied item in a manner which the customer can reasonably be expected to accept so that the infringement of the industrial property right no longer applies. If this is not possible under economically appropriate conditions or within an appropriate period, the customer shall be entitled to withdraw from the contract. Under the stated conditions, tedrive shall also have the right to withdraw from the contract Furthermore, the supplier shall exempt the ordering party from undisputed or legally established claims submitted by the respective owner of the industrial property rights.
b) The obligations of tedrive referred to in paragraph 3 a) shall be conclusive, subject to the provisions of paragraph 5 b) in cases of the infringement of industrial property rights or copyrights. These shall only apply insofar as
c)
aa) the customer informs tedrive immediately of any claims submitted with respect to the infringement of industrial property rights or copyrights,
bb) the customer supports tedrive to a reasonable extent in defending against the claims that are asserted or enables tedrive to perform the modification measures referred to in paragraph 3 a),
cc) tedrive retains the right to carry out all defensive measures, including out-of-court settlements,
dd) the defect of title does not result from an instruction issued by the customer and
ee) the infringement of the rights does not result from the fact that the customer has modified the supplied object of its own accord or used it in a manner that is not consistent with the contract.
4. All defect claims shall become statute barred 6 months after becoming known - and in all cases not later than 12 months after the transfer of risk. All other claims submitted by the customer - on whatever legal basis - shall become statute barred after 12 months, irrespective of the mandatory statutory limitation rules
5. Liability
a) For all infringements of secondary obligations, including pre-contractual breaches of duty, the above paragraphs shall apply accordingly.
b) Liability - on whatever legal basis - on the part of tedrive for damage which does not occur to the supplied object itself shall be excluded in line with standard practice in this sector of industry over many years.
c) Exceptions to the above shall only apply insofar as tedrive, its legal representatives or executives are shown to have acted wilfully or with gross negligence. This also applies in the case of defects which have been fraudulently concealed, and in the case of defects to the supplied object insofar as liability applies according to the German Product Liability Act for personal injury or property damage to privately used objects and in the case of culpable injury to life, body and health. In these exceptional cases the statutory regulations shall apply.
d) All liability on the part of tedrive shall be excluded for loss or damage resulting from slight negligence, unless this involves loss or damage which can reasonably be expected to be foreseeable and is typical for this type of contract and arises from the infringement of important contractual duties.
e) In the case of a delay to the submission of notices of defects caused by at least gross negligence on the part of the customer, all liability of tedrive shall also be excluded.
6. In the case of an unjustified notice of defects submitted by the customer, the customer shall pay to tedrive all of the costs and expenses incurred, plus a processing charge of 10%.
VII. Breaches of Duty and Liability of the Customer
1. Insofar as the dispatch or acceptance of the supplied objects is delayed for reasons for which the customer or its representatives or vicarious agents are responsible, the customer shall - starting 7 calendar days after notification that the goods are ready for dispatch or acceptance by tedrive - pay to tedrive the costs and expenses incurred as a result of the delay, including any loss or damage that has occurred, but at least 1.0% of the invoice amount for each month or part of a month.
2. Insofar as tedrive has supplied goods produced according to drawings, samples, plans, models or other documents provided by the customer, the customer shall be liable for ensuring that no industrial property rights of third parties whatsoever are infringed. If tedrive is forbidden by third parties in particular to produce and supply such goods with reference to industrial property rights, tedrive shall be entitled - without any obligation to verify the legal situation - to refrain from any further activity in this respect and demand damages plus a flat rate processing charge of 5% of the invoice amount. The customer shall also be obliged to exempt tedrive immediately from any associated costs and claims by third parties.
3. Models, matrixes, templates, samples, tools and other manufacturing aids, as well as confidential information made available to the customer by tedrive, may only be used for orders or contracts submitted to third parties with the prior written agreement of tedrive. 4. For every infringement of the obligation relating to confidential treatment as contained in these conditions the customer shall pay damages to tedrive plus a flat rate of 10% of the invoice amount.
5. Insofar as it becomes impossible for tedrive to deliver to the customer during default of acceptance on the part of the customer, or if the customer is alone or mainly responsible for this situation, the customer shall be obliged to provide a service in return.
6. The customer shall assume full responsibility and liability for the information which the customer is obliged to provide and for the documents, plans, drawings, models, calibres, samples or similar items which it is to make available.
7. In the case of the cessation of payments by the customer or the submission of an application for the opening of insolvency proceedings, tedrive shall be entitled to withdraw from the contract overall or from the part of the contract that has not yet been fulfilled.
8. In all other respects the statutory regulations shall apply.
VIII. Miscellaneous Agreements
1. Insofar as the scope of delivery includes software, the customer shall be granted a non-exclusive right to use the supplied software, including its documentation. This is supplied for use in conjunction with the relevant supplied object. Use of the software on more than one system is not permitted. The customer is entitled to copy, revise or translate the software only within the scope provided for by law (§§69a et seq. of the German Copyright Act) or convert the object code into the source code. The customer undertakes not to remove manufacturer's information - in particular remarks relating to copyrights – or change them without the express prior consent of tedrive.
2. All other rights to the software and documentation, including the copies, shall remain with tedrive or the software supplier. The issuing of sublicences is not permitted.
IX. Final Provisions
1. The place of performance for both parties shall be the registered office of tedrive Wülfrath.
2. The only contractual language is German. Any translations shall be merely representative and shall not be of a material nature. 3. The relevant law of the Federal Republic of Germany relating to the legal relationships of domestic parties with one another shall apply to all legal relationships between the customer and tedrive. In particular, the application of the UN Convention on Contracts for the International Sale of Goods dated April 11, 1980 shall be excluded.
4. The place of jurisdiction shall be the court responsible for the registered office of tedrive. However, tedrive shall be entitled to take legal action at the main registered office of the customer.
5. In all cases these conditions shall apply to every contract that is concluded in the version in force at the time of conclusion of the contract. In the case of framework agreements, a new version shall be deemed to apply after the expiry of a period of 3 months, beginning with notification by tedrive to the customer.
6. For reasons of data protection law the customer is hereby informed that personal data or data obtained from the contractual relationship may be stored and processed by tedrive or companies affiliated with tedrive in accordance with the provisions of the German Federal Data Protection Act (BDSG). tedrive reserves the right to forward this data to third parties, insofar as this is required for fulfilment of the contract.
7. The invalidity of individual provisions of these conditions shall not affect the validity of the remaining provisions. In place of the invalid provision, an alternative provision shall be deemed to have been agreed which comes as close as possible in terms of its economic meaning and purpose to the invalid provision in the light of these conditions.
"The legal relationships between tedrive Steering Systems GmbH ("tedrive") and the respective customer are based exclusively on these General Terms and Conditions of Sale and Delivery ("conditions"), as well as on the mandatory or remaining statutory regulations. Any individual or general change, supplementation or cancellation of this contractual basis can only become effective insofar as an agreement signed by both parties satisfies the corresponding written requirements of §§126, 126a of the German Civil Code. Insofar as the customer has formulated its own general (purchasing) conditions, their inclusion is also subject to the prerequisites for coming into force contained in the previous paragraph. For the avoidance of doubt concerning the contractual basis of the legal relationships, tedrive will reprint this paragraph separately on every offer and every order confirmation/declaration of acceptance in a conspicuous form. "
II. Conclusion of Contracts
1. The sale and supply contracts come into force by means of an order and its acceptance in written form. The written form requirement also applies to any change, supplementation or cancellation.
2. All offers made by tedrive are subject to confirmation and submitted without obligation. Orders and contracts from customers can be accepted by tedrive within a period of 2 weeks.
3. All of the documents relating to an offer, such as illustrations, descriptions, drawings, details of weights and measures and other technical data, as well as national, international, corporate or industry-wide norms and samples that are referred to - besides other information provided - are to be considered approximations unless they are expressly designated as being binding. Deviations that are standard in the trade, as well as deviations resulting from statutory regulations or representing technical improvements, as well as the replacement of components by equivalent parts, are permitted insofar as the usability of the item for the contractually intended purpose is not impaired.
4. tedrive shall retain the copyrights and rights of ownership with respect to all offers, quotations, drawings, calculations, plans and other documents – including those in electronic form. Only with prior written permission may the customer make these accessible to third parties; in all other cases the customer shall treat such items in the strictest of confidence. At the request of tedrive, or in cases where no contract comes into effect, the above documents shall be returned to tedrive.
5. For framework agreements relating to delivery schedules or make-and-hold orders, as well as the call-off orders themselves, paragraph 1 applies accordingly. In such framework agreements it is also possible to agree that in the case of orders and delivery schedules of the customer, as well as their supplementations, these may also be submitted by means of long-distance data transmission or by data carriers which can be read by machine.
6. Even without an explicit provision in the corresponding framework agreement, tedrive is entitled in the case of delivery schedules or make-and-hold orders to procure material for the entire order and produce the entire ordered quantity immediately. Any changes requested by the customer can therefore not be taken into consideration after conclusion of the contract unless the framework agreement expressly provides for this.
7. Partial deliveries are permitted in all cases in every contractual relationship.
III. Terms of Delivery
1. Unless otherwise stated by tedrive, all delivery dates and deadlines are non-binding.
2. Compliance with binding delivery dates and deadlines on the part of tedrive presupposes that all of the significant issues existing between the parties have been clarified and the customer has satisfied all of its duties and obligations, e.g. the transmission of the requisite documents, authorisations, certificates, plans and releases, and that any agreed down-payment has been received. Otherwise the delivery date or period shall be prolonged by a reasonable extent unless tedrive is itself responsible for the delay.
3. Compliance with these dates and deadlines is subject to the dispatch of the goods or to the notification that the goods are ready for dispatch by tedrive. If an acceptance test is to be carried out, the date of the acceptance test or notification from tedrive that the items are ready for acceptance shall be decisive, unless the customer has justification for refusing acceptance.
4. The delivery date shall be extended by a reasonable period in the case of measures associated with industrial disputes, particularly strikes and lockouts, as well as upon the occurrence of unforeseen hindrances for which tedrive is not responsible. Examples of these include force measure, measures ordered by public authorities, delays to the production of supplied parts for which tedrive is not responsible, interruptions to business operations and the failure of suppliers to provide agreed services, insofar as it can be shown that such hindrances significantly affect the production or supply of the goods. Such an extension to the delivery date shall also apply if tedrive is already in arrears with its obligations at the beginning of such situations, i.e. during the period of such situations tedrive shall not be liable for any legal consequences of the delay. In all cases tedrive shall inform the customer immediately of such situations.
5. Insofar as the events described in paragraph 4 render the supply or service to be provided by tedrive difficult or impossible and the hindrance is not only of a temporary nature, tedrive shall be entitled to withdraw from the contract. Insofar as the customer can no longer be reasonably expected to accept delivery due to the delay, the customer shall be entitled to withdraw from the contract.
6. Changes requested at a later time by the customer shall entitle tedrive to suspend supplying the items until the requested changes have been examined with respect to their implementability and effects, particularly with respect to costs and deadlines. The changes shall only become binding after they have been expressly confirmed in writing by tedrive. tedrive shall then be entitled to extend delivery dates and deadlines by a reasonable time in order to implement the changes.
7. The goods shall be packaged and dispatched appropriately in the usual commercial manner at the discretion of tedrive, taking into due consideration the respective circumstances.
8. Not later than at the time of dispatch of the goods from the tedrive factory (ex works - FCA Incoterms 2000), all risks shall be transferred to the customer. This applies irrespective of the mode of shipment that has been selected. If an acceptance test is to be performed, the risks shall be transferred upon acceptance.
9. Insofar as a delay occurs to the dispatch or acceptance of the goods for which tedrive is not responsible, the risks shall be transferred to the customer upon notification from tedrive that the items are ready for dispatch or ready for acceptance. In this case tedrive shall also be entitled - after setting a reasonable period of grace - to dispose of the goods elsewhere and supply the customer with other goods with a reasonable new delivery deadline.
10. At the request and expense of the customer, tedrive shall conclude any insurance required by the customer.
IV. Prices and Terms of payment
1. All prices are stated as net prices in euros and apply to deliveries ex works, are exclusive of packaging, freight, postage, insurance, all forms of taxes or charges, duties, costs for customs clearance or similar expenses. Unforeseen changes to the costs of raw materials, wages, energy etc shall entitle tedrive to make corresponding price adjustments. Insofar as delivery is effected more than four months after conclusion of the contract, the list prices of tedrive at the time of delivery shall apply.
2. Payments are to be effected in cash without deduction within 14 calendar days of the date of the invoice.
3. The declaration of any setting-off of amounts or the exercise of a right of retention by the customer is only permitted with respect to claims against tedrive which have been legally established or which are undisputed.
4. Payment by means of bills of exchange or cheques is excluded in all cases.
5. In addition to statutory rights, in the case of payment arrears tedrive shall have the right to declare all claims by tedrive associated with the business relationship as being due for payment immediately or to demand collateral. In such cases tedrive shall be entitled to effect any outstanding deliveries only in return for advance payment or the provision of a sufficient amount of collateral.
The above also applies with respect to the risk associated with the intrinsic value of tedrive’s accounts receivable from the customer, e.g. resulting from a not inconsiderable deterioration in the customer's creditworthiness.
6. The customer is not entitled to withhold payments due to claims which the customer has submitted pertaining to defects, unless tedrive is provided with a sufficient level of collateral. In this case a maximum of 30% may be temporarily withheld.
7. Partial or premature deliveries may be brought to account by tedrive with immediate effect.
8. In cases of significant advanced financing on the part of tedrive, the customer may be requested to effect advance payments.
V. Retention of Title and Security Interests
1. tedrive reserves the right to retain ownership of all goods until all claims of tedrive against the customer have been fulfilled without reservation, including those subject to a condition. This also applies to claims of tedrive arising in the future with respect to the customer. In the case of an open account the reserved ownership serves as collateral for the account balance of tedrive.
2. In order to assert this retention of title, tedrive is entitled in the cases covered by section IV paragraph 5 to demand the immediate surrender of the goods subject to the retention of title to the exclusion of the right of retention, unless these are counterclaims which have been legally established or are undisputed. If the customer does not comply with this demand immediately, tedrive shall be entitled to enter the customer's premises in order to secure direct possession of the goods subject to the retention of title. In such cases the customer shall provide information on the whereabouts of the goods and - if necessary - grant tedrive the right to inspect the relevant business documents.
3. Without prejudice to the payment obligation of the customer, tedrive is entitled to a) sell the goods that have been taken back at its own discretion and for the best outcome and credit the revenues or b) credit the goods that have been taken back at the price charged by tedrive to the customer (contract price), minus any discounts and other price reductions, and deducting any loss in value In all cases we are also entitled to deduct our costs of taking back the goods from the credit note.
4. The customer shall notify tedrive without delay of any attachment or other form of third-party impairment to the proprietary rights of tedrive and shall confirm the proprietary right both to third parties and to us in writing. Any hypothecation or transfer by way of security of the goods supplied subject to the retention of title by the customer is not permitted.
5. The customer shall insure the goods subject to the retention of title to a sufficient extent, in particular against fire and theft. Claims against the insurance relating to cases of damage to or loss of the goods subject to the retention of title are hereby assigned to tedrive to the extent of the value of the goods. The customer shall inform the insurance company of the assignment of claims.
6. The acquisition of ownership on the part of the customer to the goods subject to the retention of title in accordance with §950 of the German Civil Code in the case of the processing of the goods subject to the retention of title to form a new object is hereby excluded. Any processing shall be performed by the customer on behalf of tedrive, without any obligations arising for tedrive as a result. The processed goods shall be deemed goods subject to the retention of title within the meaning of these conditions. In cases where the goods are combined, mixed or joined to goods not belonging to tedrive (§§947, 948 of the German Civil Code), tedrive shall have co-ownership of the new item or overall quantity in the same ratio as the goods subject to the retention of title had at the time of their combination, mixing or joining together to the value of the other combined, mixed or joined goods. Insofar as the customer obtains sole ownership of the new item, the contractual partners hereby agree that the customer shall grant tedrive co-ownership of the new item or overall quantity in the same ratio of the value of the processed or combined, mixed or joined goods subject to the retention of title as the total value of the new item or overall quantity. The new items produced shall then be deemed goods subject to the retention of title within the meaning of these conditions. The customer shall then store them with the due diligence of a prudent businessman on behalf of tedrive and undertakes to provide tedrive with the information required to exercise its rights and grant tedrive access to its documents in this respect.
7. a) The accounts receivable of the customer from the resale of the goods subject to the retention of title are hereby assigned with all ancillary rights to tedrive, irrespective of whether the goods subject to the retention of title are sold on with or without being processed, combined or mixed to one or more customers. Insofar as the assigned claim against the third party debtor has been included in an open account, the agreed assignment shall also refer to the claims associated with the current account. The assigned claims shall serve the purpose of securing all rights and accounts receivable of tedrive in accordance with paragraph 1.
b) In cases where the goods subject to the retention of title are sold by the ordering party together with other goods which do not belong to tedrive - either without or after being combined, mixed or processed - the assignment to tedrive of the claim relating to the purchase price in accordance with paragraph 8 a) shall be deemed to have been agreed to the extent of the contractual price for our goods subject to the retention of title.
c) The customer is entitled and authorised to sell on or use in any other manner the goods subject to the retention of title only on condition that the accounts receivable referred to under a) and b) are transferred to tedrive. The customer is not entitled to dispose of the goods subject to the retention of title in any other manner.
d) The customer is entitled to collect the accounts receivable associated with the resale of the goods in spite of the assignment. The right of tedrive to collect the accounts receivable shall not be affected by this collection authorisation of the customer. tedrive shall not, however, collect the accounts receivable itself as long as the customer duly complies with its payment obligations. At the request of tedrive the customer shall inform tedrive of the debtors associated with the assigned accounts receivable, and shall notify the debtors of the assignment. tedrive is entitled to enter the premises of the customer in order to inspect the documents required for the establishment and assertion of the accounts receivable assigned to tedrive, as well as to remove them for a short time or copy them.
f) tedrive is entitled to revoke the authorisation of the customer to sell on the goods subject to the retention of title and collect the accounts receivable assigned to tedrive with immediate effect if the customer falls into arrears with its payments to tedrive or has difficulties paying its liabilities due to a significant deterioration in its financial circumstances. If an application is submitted for the opening of insolvency proceedings with respect to the customer's assets, all payments are discontinued or an affirmation in lieu of an oath is submitted in accordance with §807 of the German Code of Civil Procedure, the authorisation to sell on the goods subject to the retention of title and collect the accounts receivable assigned to tedrive shall automatically lapse. If tedrive has revoked the authorisation of the customer to sell on the goods subject to the retention of title or the authorisation has automatically lapsed, the customer shall be obliged to surrender the goods subject to the retention of title immediately to tedrive and procure immediate possession for tedrive. The customer shall also be obliged to grant tedrive the right to inspect the customer's business records, unless the customer provides extensive information with respect to the matter immediately. All of the costs incurred as a result of repossessing the goods subject to the retention of title shall be borne by the customer.
8. a) The retention of title according to the above provisions shall also remain in force if individual accounts receivable of tedrive are included in an open account and the balance has been drawn and recognised.
b) The retention of title according to the above provisions shall lapse when all of the claims referred to above under section V paragraph 1 have been satisfied. As a result the ownership of the goods subject to the retention of title shall be transferred to the customer, and the customer shall have the right to the assigned claims.
9. Insofar as the value of all collateral provided to tedrive exceeds the total value of the accounts receivable by more than 20% over a prolonged period, tedrive shall be obliged at the request of the customer to release collateral in this respect at the discretion of tedrive.
VI. Breaches of Duty and Liability of tedrive
1. Insofar as tedrive is in arrears with a delivery for reasons for which it is responsible and the customer can show that it suffers a loss/damage as a result, the claim for damage/loss caused by delay that the customer is entitled to assert shall be limited as follows: from the time of the second week of the delay, 0.5% for each full week of the delay - and overall not more than 5.0% - of the value of the part of the overall delivery which cannot be used on time or in accordance with the contract as a consequence of the delay. All further claims for damages or other claims are excluded. 2. Defects of Quality
a) All parts which are found to be defective as a consequence of circumstances for which tedrive is responsible before the time of the transfer of risk are to be repaired or replaced without defects (supplementary performance) free of charge at the discretion of tedrive.
b) The ascertainment of such a defect shall be notified to tedrive in writing without delay not later than 10 days after the transfer of risk or within 7 days of the delivery or acceptance test. §§377, 378 of the German Commercial Code shall apply accordingly. Otherwise supplementary performance shall be excluded unless the customer is not responsible for the delay.
c) Parts which are subject to a complaint shall be returned to tedrive only at the request of tedrive, with reasonable costs for the return being borne by tedrive.
d) The replaced parts shall be surrendered to tedrive at the request of tedrive, and their ownership transferred to tedrive.
e) For the execution of all work deemed necessary by tedrive for supplementary performance, the customer shall - after reaching an agreement with tedrive - provide tedrive with the necessary time and opportunity to execute the work, otherwise tedrive shall be exempt from any liability for the resulting consequences. Only in urgent cases in which operational safety is endangered, and in order to prevent disproportionate loss or damage - and whenever tedrive is not able to remedy the situation immediately - does the customer have the right to rectify the defects itself or have it rectified by third parties and demand reimbursement from tedrive for the expenditure involved. In such cases tedrive shall be informed in writing immediately at all times.
f) Of the direct costs incurred as a result of the supplementary performance, tedrive shall bear the costs of the replacement part, including shipping costs, provided that the complaint is found to be justified. Insofar as the customer demands compensation for the expenditure that it has incurred or which it has reimbursed to its own customer on the basis of statutory provisions, tedrive shall be liable for the payment of compensation as follows:
aa) Compensation shall only be effected for the installation, dismantling and transport costs incurred for the purposes of supplementary performance. For the determination of the level of this compensation, appropriate consideration shall be given to the type, extent and duration of the business relationship, as well as the degree of causation and any fault on the part of tedrive, as well as the installation situation of the supplied item to which the complaint refers. In particular, the compensation to be provided by tedrive must be appropriate with respect to the value of the supplied item to which the complaint refers, as well as to the annual turnover between tedrive and the customer with respect to these supplied items.
bb) The obligation to provide compensation shall be excluded insofar as the customer has itself effectively restricted its liability with respect to its own customers. In such cases the customer shall make every effort to agree liability restrictions, also in favour of tedrive, to the extent that this is legally permitted.
g) Within the framework of statutory regulations, the customer shall have the right to withdraw from the contract if tedrive - taking into account the statutory exceptions – allows an appropriate period for supplementary performance for the correction of a material defect that has been stipulated in writing to pass without success. If the defect is of a minor nature, the customer shall only have a right to a reduction of the contractual price. In all other cases the right to a reduction of the contractual price shall be excluded.
h) No warranty shall be provided in the following cases in particular: Inappropriate or improper use, faulty installation or commissioning by the customer or third parties, natural wear and tear, faulty or negligent treatment, improper maintenance, inappropriate equipment, special external influences not specified in the contract - insofar as these are not the responsibility of tedrive.
i) Guarantee pledges by the supplier, in particular guarantees concerning properties and durability, for example in delivery specifications, requirements specification sheets, technical specifications, specifications of services, service specifications or other documents, are expressly excluded in the absence of other written agreements between tedrive and the customer.
j) Insofar as the customer or a third party performs inappropriate repairs, tedrive shall not be liable for any resulting consequences. This shall also apply to any changes to the supplied object performed without the written agreement of tedrive.
k) For the function and running characteristics of the supplied objects, the results on the test bed of tedrive shall be decisive. tedrive shall not accept any liability for malfunctions occurring as a result of the installation conditions or improper operation or maintenance.
l) Any supplementary performance, irrespective of the form this takes, shall not under any circumstances be deemed to be admission of any claim by the customer.
m) No liability shall be accepted with respect to defects of quality where the items supplied - according to agreement - are not new goods.
3. Defects of Title
a) Insofar as the use of the supplied item results in the infringement of commercial property rights or copyrights of third parties in the Federal Republic of Germany at the time of transfer of ownership, tedrive shall - at its own expense - procure the right of the customer to continue to use the item or modify the supplied item in a manner which the customer can reasonably be expected to accept so that the infringement of the industrial property right no longer applies. If this is not possible under economically appropriate conditions or within an appropriate period, the customer shall be entitled to withdraw from the contract. Under the stated conditions, tedrive shall also have the right to withdraw from the contract Furthermore, the supplier shall exempt the ordering party from undisputed or legally established claims submitted by the respective owner of the industrial property rights.
b) The obligations of tedrive referred to in paragraph 3 a) shall be conclusive, subject to the provisions of paragraph 5 b) in cases of the infringement of industrial property rights or copyrights. These shall only apply insofar as
c)
aa) the customer informs tedrive immediately of any claims submitted with respect to the infringement of industrial property rights or copyrights,
bb) the customer supports tedrive to a reasonable extent in defending against the claims that are asserted or enables tedrive to perform the modification measures referred to in paragraph 3 a),
cc) tedrive retains the right to carry out all defensive measures, including out-of-court settlements,
dd) the defect of title does not result from an instruction issued by the customer and
ee) the infringement of the rights does not result from the fact that the customer has modified the supplied object of its own accord or used it in a manner that is not consistent with the contract.
4. All defect claims shall become statute barred 6 months after becoming known - and in all cases not later than 12 months after the transfer of risk. All other claims submitted by the customer - on whatever legal basis - shall become statute barred after 12 months, irrespective of the mandatory statutory limitation rules
5. Liability
a) For all infringements of secondary obligations, including pre-contractual breaches of duty, the above paragraphs shall apply accordingly.
b) Liability - on whatever legal basis - on the part of tedrive for damage which does not occur to the supplied object itself shall be excluded in line with standard practice in this sector of industry over many years.
c) Exceptions to the above shall only apply insofar as tedrive, its legal representatives or executives are shown to have acted wilfully or with gross negligence. This also applies in the case of defects which have been fraudulently concealed, and in the case of defects to the supplied object insofar as liability applies according to the German Product Liability Act for personal injury or property damage to privately used objects and in the case of culpable injury to life, body and health. In these exceptional cases the statutory regulations shall apply.
d) All liability on the part of tedrive shall be excluded for loss or damage resulting from slight negligence, unless this involves loss or damage which can reasonably be expected to be foreseeable and is typical for this type of contract and arises from the infringement of important contractual duties.
e) In the case of a delay to the submission of notices of defects caused by at least gross negligence on the part of the customer, all liability of tedrive shall also be excluded.
6. In the case of an unjustified notice of defects submitted by the customer, the customer shall pay to tedrive all of the costs and expenses incurred, plus a processing charge of 10%.
VII. Breaches of Duty and Liability of the Customer
1. Insofar as the dispatch or acceptance of the supplied objects is delayed for reasons for which the customer or its representatives or vicarious agents are responsible, the customer shall - starting 7 calendar days after notification that the goods are ready for dispatch or acceptance by tedrive - pay to tedrive the costs and expenses incurred as a result of the delay, including any loss or damage that has occurred, but at least 1.0% of the invoice amount for each month or part of a month.
2. Insofar as tedrive has supplied goods produced according to drawings, samples, plans, models or other documents provided by the customer, the customer shall be liable for ensuring that no industrial property rights of third parties whatsoever are infringed. If tedrive is forbidden by third parties in particular to produce and supply such goods with reference to industrial property rights, tedrive shall be entitled - without any obligation to verify the legal situation - to refrain from any further activity in this respect and demand damages plus a flat rate processing charge of 5% of the invoice amount. The customer shall also be obliged to exempt tedrive immediately from any associated costs and claims by third parties.
3. Models, matrixes, templates, samples, tools and other manufacturing aids, as well as confidential information made available to the customer by tedrive, may only be used for orders or contracts submitted to third parties with the prior written agreement of tedrive. 4. For every infringement of the obligation relating to confidential treatment as contained in these conditions the customer shall pay damages to tedrive plus a flat rate of 10% of the invoice amount.
5. Insofar as it becomes impossible for tedrive to deliver to the customer during default of acceptance on the part of the customer, or if the customer is alone or mainly responsible for this situation, the customer shall be obliged to provide a service in return.
6. The customer shall assume full responsibility and liability for the information which the customer is obliged to provide and for the documents, plans, drawings, models, calibres, samples or similar items which it is to make available.
7. In the case of the cessation of payments by the customer or the submission of an application for the opening of insolvency proceedings, tedrive shall be entitled to withdraw from the contract overall or from the part of the contract that has not yet been fulfilled.
8. In all other respects the statutory regulations shall apply.
VIII. Miscellaneous Agreements
1. Insofar as the scope of delivery includes software, the customer shall be granted a non-exclusive right to use the supplied software, including its documentation. This is supplied for use in conjunction with the relevant supplied object. Use of the software on more than one system is not permitted. The customer is entitled to copy, revise or translate the software only within the scope provided for by law (§§69a et seq. of the German Copyright Act) or convert the object code into the source code. The customer undertakes not to remove manufacturer's information - in particular remarks relating to copyrights – or change them without the express prior consent of tedrive.
2. All other rights to the software and documentation, including the copies, shall remain with tedrive or the software supplier. The issuing of sublicences is not permitted.
IX. Final Provisions
1. The place of performance for both parties shall be the registered office of tedrive Wülfrath.
2. The only contractual language is German. Any translations shall be merely representative and shall not be of a material nature. 3. The relevant law of the Federal Republic of Germany relating to the legal relationships of domestic parties with one another shall apply to all legal relationships between the customer and tedrive. In particular, the application of the UN Convention on Contracts for the International Sale of Goods dated April 11, 1980 shall be excluded.
4. The place of jurisdiction shall be the court responsible for the registered office of tedrive. However, tedrive shall be entitled to take legal action at the main registered office of the customer.
5. In all cases these conditions shall apply to every contract that is concluded in the version in force at the time of conclusion of the contract. In the case of framework agreements, a new version shall be deemed to apply after the expiry of a period of 3 months, beginning with notification by tedrive to the customer.
6. For reasons of data protection law the customer is hereby informed that personal data or data obtained from the contractual relationship may be stored and processed by tedrive or companies affiliated with tedrive in accordance with the provisions of the German Federal Data Protection Act (BDSG). tedrive reserves the right to forward this data to third parties, insofar as this is required for fulfilment of the contract.
7. The invalidity of individual provisions of these conditions shall not affect the validity of the remaining provisions. In place of the invalid provision, an alternative provision shall be deemed to have been agreed which comes as close as possible in terms of its economic meaning and purpose to the invalid provision in the light of these conditions.