Here you will find our latest and updated GTCP – General Terms and Condition of Purchase.
General Terms & Condition of Business SIMA SRL – Castelfranco E. (MO) ITALY
General sales and delivery conditions, as of date: 01/03/2017
All deliveries and services are exclusively subject to these delivery conditions unless they are amended by an express written agreement between the parties.
All proposals, acceptances of proposals, order confirmations or sales transactions of products are subject to these conditions. All purchaser terms and conditions or any conditions, which may alter the contract, shall be excluded. They shall only be binding for the supplier if the supplier has agreed to such alterations in writing.
These conditions form the basis for any future individual purchase transaction between the purchaser and supplier, and they shall exclude any other agreement.
Possible unintended errors in sales brochures, price lists, proposal documents or any other documentation of the supplier may be corrected by the supplier without the supplier being responsible or liable for any damage that results from such errors.
These general terms and conditions of sale and delivery shall only be applicable to business people and traders.
2. Proposal, proposal documents and conclusion of the contract
2.1. Proposals are always non-obligatory unless they are subject to a time limit.
2.2 Orders placed by the purchaser shall only be regarded as accepted by the supplier if the supplier or his representative has accepted the order in writing or electronically (e.g. by email) within 21 days from its receipt.
2.3 The supplier reserves the property rights and copyrights to the samples, cost estimates, drawings and other information of a physical and non-physical nature, including in an electronic format, which must not be disclosed to third parties.
2.4 With regard to the accuracy of the order, the purchaser shall be responsible for providing the supplier with all necessary information regarding the ordered goods in due time so that the order can be implemented according to the contract.
3. Purchase price and payment conditions
3.1 In the absence of any special agreement, the prices shall be applicable ex works including loading in the factory, but excluding packaging, freight, postage, insurance and unloading. Value added tax at the applicable rate will be added to the prices. Any other taxes, customs duties and other charges, which become due with the delivery, shall be borne by the purchaser.
3.2 The purchaser shall only be entitled to a right to withhold payments or offset payments against counterclaims if his counterclaims are undisputed or have been legally confirmed.
3.3 If the purchaser does not comply with his payment obligation by the due date, the supplier may, at his own discretion and without waiving possible further rights and entitlements that he may have:
– Set a grace period (unless this is unnecessary subject to the respective circumstances) and terminate the contract after the grace period has expired, and/or
– Suspend further deliveries to the purchaser, and/or
– Charge the purchaser interest to the amount of 8% p.a. above the respective base rate on the unpaid amount until the outstanding amount has finally been paid in full. The purchaser shall be entitled to prove that his delayed payment did not result in any damage or merely caused minor damage.
4. Delivery time and delayed delivery
4.1 The delivery time results from the agreements between the contract parties. It starts with the date of the order confirmation, but not before all commercial and technical questions have been clarified between the contractual parties and the purchaser has fulfilled all of his obligations, such as the obligation to provide the permits or approvals, which are required by the authorities, or the obligation to pay a deposit. If the above is not the case, the delivery time shall be extended accordingly. The above does not apply if the supplier is responsible for the delay.
4.2 The observance of the delivery time is subject to the supplier’s correct and timely receipt of his own deliveries by his sub-suppliers. The supplier shall notify the purchaser of any delay, which he can foresee, as soon as possible.
4.3 All deliveries shall be made ex works. The delivery time shall be regarded as observed if the delivery object has left the factory of the supplier or the partner company who is producing the item(s) on behalf of the supplier by the delivery date or if the purchaser has been notified of the readiness for delivery by the delivery date.
If an acceptance needs to be carried out, except for cases where the acceptance is justifiably rejected, the acceptance date shall be binding. Alternatively, the notification of the readiness for acceptance shall be binding.
4.4. If the shipment or acceptance of the delivery object is delayed for reasons, for which the purchaser is responsible, the supplier shall invoice the costs, which the supplier has incurred due to the delay – especially storage costs, starting one month after the notification of the readiness for delivery or acceptance – to the purchaser. If the object of delivery is stored in the supplier’s factory, the supplier shall be entitled to invoice the storage costs at a flat rate of 0.5% of the invoice amount for each month or part thereof subject to a specific calculation of the incurred extra expenses. The purchaser shall be entitled to prove that the supplier has incurred no costs or damage at all or that the incurred damage is significantly smaller than the invoiced flat rate.
4.5 If the non-observance of the delivery time is due to force majeure, labour disputes, strike or other events that are outside the supplier’s control, the delivery time shall be extended accordingly. The supplier shall notify the purchaser of the beginning and end of such circumstances as soon as possible.
4.6 If the impossibility or inability to observe the delivery time occurs during the purchaser’s delayed acceptance or if the purchaser is wholly or predominantly responsible for these circumstances, he shall remain obligated to render his counterperformance.
4.7 If the purchaser grants the supplier a grace period for making his owed delivery after the due date subject to legal exemptions and if the supplier does not observe this grace period, the purchaser shall be entitled to withdraw from the contract subject to all applicable laws and regulations. The purchaser agrees to notify the supplier of his use of this entitlement to withdraw from the contract on the supplier’s request.
Further entitlements from the delayed delivery shall be exclusively subject to section 8 of these conditions.
5. Transfer of risk
5.1 The risk is transferred to the purchaser when the supplier has notified the purchaser of the delivery object’s readiness for collection, but at the latest when the delivery object has left the factory of the supplier or of a partner company who has produced the delivery object on the supplier’s behalf («ex works», Incoterms 2010). This shall also apply if partial deliveries are made or if the supplier has taken on other services, such as the shipment costs or delivery to the purchaser and installation on the purchaser’s premises.
The supplier shall only insure the shipment against theft as well as breakage, transport, fire and water damage or other insurable risks on the purchaser’s express request and at the purchaser’s cost.
5.2 If the shipment or a possible acceptance is delayed or not carried out (if an acceptance has been agreed) due to circumstances that are outside the supplier’s control, the risk shall be transferred to the purchaser on the date of the notification of the readiness for shipment or acceptance.
5.3 If an acceptance is to be carried out, it shall be regarded as implemented with the preparation of the acceptance report.
5.4 In all other cases, the delivery object shall be regarded as accepted if
a) The delivery and, if the supplier is also responsible for installing the delivery object, the installation have been completed,
b) The supplier has notified the purchaser of this situation subject to a reference to the assumed acceptance according to this item 5.3 and has asked the purchaser to carry out the acceptance,
c) 3 months have passed since the delivery object has left the factory or 6 weeks have passed since the delivery object has been delivered to the purchaser or 4 weeks have passed since the installation of the delivery object or 3 working days have passed since the purchaser has commissioned the delivery object,
d) The purchaser has not carried out the acceptance within the above period of time for any other reason apart from a possible defect, which the purchaser has indicated to the supplier and which renders the usage of the purchased object impossible or significantly impairs its usage.
5.5 If the purchaser commissions the delivery object without an acceptance despite the acceptance having been agreed beforehand, the purchaser acts at his own risk. The supplier shall not be liable for any damage resulting thereof.
5.6 Partial deliveries are permissible.
6. Retention of title
6.1 The supplier reserves his ownership of the delivery object until he has received all payments that are agreed in the delivery contract in full (including payment for possibly owed additional services).
6.2 The supplier shall be entitled to insure the delivery object against theft, burglary as well as fire, water and other damage at the purchaser’s cost unless the purchaser has submitted proof that he has obtained such insurance himself.
6.3 The purchaser must neither sell nor pledge the delivery object as security to a third party. In the event of attachment, confiscation or other orders or decrees by third parties, the purchaser must notify the supplier immediately.
6.4 If the purchaser acts against the provisions of the contract, especially in the event of delayed payment, the supplier shall be entitled to reclaim the delivery object subject to prior notice and the purchaser shall be obliged to surrender or return the delivery object.
6.5 Due to the retention of title, the supplier can only request the surrender of the delivery object if he has withdrawn from the contract.
6.6 The filing of insolvency proceedings shall entitle the supplier to withdraw from the contract and to demand the immediate return of the delivery object.
6.7 If the goods that are subject to retention of title are resold together with other goods that are not the supplier’s property, the purchaser’s claim against the buyer, which is to the amount of the delivery price that was agreed between the supplier and purchaser, shall be regarded as assigned.
6.8 The processing or modification of goods that are subject to retention of title shall always be carried out by the purchaser on the supplier’s behalf. If the goods that are subject to retention of title are processed with other goods that are not the supplier’s property, the supplier shall gain co-ownership of the new item in the ratio of the value of the goods that are subject to retention of title and the other processed goods at the time of processing.
6.9 If the supplier’s goods are combined with other movable objects to form a new combined item or if they are inseparably mixed and if the other item is to be regarded as the main item, the purchaser shall transfer the proportionate co-ownership to the supplier provided that the purchaser owns the main item.
6.10 The purchaser shall safeguard the property or co-property on the supplier’s behalf. The item, which has been created by processing, modification, compounding or mixing, shall be subject to the same provisions as the goods that are subject to retention of title.
7. Warranty, material defects
7.1 The warranty period from the transfer of risk is 12 months, and it starts at the latest from the date when the delivery object is delivered to the purchaser. If an acceptance has been agreed, the warranty period starts with the acceptance according to item 5.3 or the assumed acceptance according to item 5.4. In any case, the warranty period ends at the latest 15 months after the delivery object has left the factory of the supplier or his partner company.
7.2 The delivery objects must be thoroughly inspected immediately after they have been delivered to the purchaser or a third party who has been named by the purchaser. The delivery objects shall be regarded as approved by the purchaser with regard to obvious defects or other defects, which would be detectable in the course of an immediate and thorough inspection, if the supplier does not receive a written notice of defects within seven working days from the delivery. With regard to other defects, the delivery objects shall be regarded as approved by the purchaser if the supplier has not received the notice of defects within seven working days from the time when the defect was detected. However, if the defect would have been detectable by the purchaser in the course of his normal use at an earlier point in time, that earlier point in time shall be binding with regard to the start of the defect notice period. A delivery object, about which the purchaser has complained, shall be returned to the supplier freight paid on the supplier’s request. If the defect notice was justified, the supplier shall reimburse the purchaser for the cost of the cheapest shipment method. However, the above shall not apply if the costs have increased because the delivery object is located in another location than the location of its intended use.
7.3 The supplier shall not be responsible for the goods being suitable for a specific use, unless the supplier has expressly agreed to his liability in this respect.
7.4 If the delivered objects have material defects, the supplier shall initially be obliged and entitled to rework the defect or make a replacement delivery at his own discretion, which he shall exercise within a reasonable period of time. If this rework or replacement delivery fails twice because of its impossibility, unreasonableness, rejection by the supplier or inappropriate delay by the supplier, the purchaser shall be entitled to withdraw from the contract or to reduce the purchase price appropriately if the defect is of a material nature.
7.5 A material defect of the object is only given if the costs for the rework amount to at least 10% of the net purchase price and the performance of the object deviates from the agreed performance by more than 15%.
7.6 If the supplier is responsible for the defect, the purchaser shall be entitled to demand compensation subject to the conditions stated under item 8.
7.7 If the defects relate to components by other manufacturers, which the supplier cannot correct for licence reasons or actual reasons, the supplier – at his own discretion – shall claim his warranty entitlements against such manufacturers and their suppliers on the purchaser’s account or assign them to the purchaser. For such defects, any warranty entitlements against the supplier shall only exist subject to the other conditions and these general terms and conditions of delivery if the legal enforcement of the above entitlements against the manufacturer and his suppliers in court was unsuccessful or will be futile, for example because of insolvency. The statute of limitation of the respective warranty claims of the purchaser against the supplier shall be put on hold for the duration of the legal proceedings.
7.8 The warranty shall be void if the purchaser modifies the delivery object or has it modified by third parties without the supplier’s approval and if the correction of the defect is made impossible or unreasonably difficult because of this. In any case, the purchaser shall bear any additional costs for defect correction, which are incurred because of the modification.
7.9 Any delivery of used objects, which may be agreed with the purchaser in individual cases, shall only be made subject to the exclusion of any warranty for material defects.
8. Supplier’s liability, exclusion of liability
8.1 The supplier’s liability for compensation for whatever legal reason, especially for inability to deliver, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations as well as unlawful acts, insofar as the culpability is concerned, shall be limited according to this item 8.
8.2 The supplier shall not be liable for ordinary negligence by his company bodies, legal representatives, employees or any other agents unless material contract obligations are breached. Such material contract obligations include, amongst other things, the obligation to deliver the delivery object on time as well as the delivery object being free from defects, which significantly impair its functioning or suitability for use. They also include protection and caretaking obligations, which are intended to safeguard the body and life of the purchaser’s personnel or to protect his property against significant damage.
8.3 If the supplier is liable for compensation in principle according to item 8.2, this liability shall be limited to damage, which the supplier has foreseen as a possible result of any breach of contract at the time when the contract was concluded or which he should have foreseen if he had conducted his affairs with the usual due diligence. Indirect damage and consequential damage, which result from any defect of the delivered object, shall only require compensation if such damage is typically to be expected while the delivery object is used according to its intended use.
8.4 Under no circumstances does indirect and consequential damage, which the purchaser incurs in the form of lost profit, production downtime, additional wages and/or disposal costs for scrap, require any reimbursement.
8.5 In the event of liability for negligence, the supplier’s obligation to compensation for damage to property and further financial loss, which results thereof, shall be limited to an amount of EUR 2.0 million for each damage event (according to the current coverage sum of the supplier’s product liability insurance or liability insurance). This applies even if the supplier has breached his material contract obligations.
8.6 The above exclusions and limitations of liability shall apply to the same extent to the supplier’s company bodies, legal representatives, employees and other agents.
8.7 If the supplier provides technical information or acts as a consultant and this information or consulting is not part of the contractually agreed and owed scope of services, such information and consulting is given free of charge and subject to the exclusion of any liability.
8.8 The purchaser’s entitlements to compensation, with the exception of the entitlements that are listed under item 8.9, shall expire by limitation one year after the entitlement has become effective and at the point in time when the purchaser has learned of the circumstances, which give rise to the entitlements, or should have learned of them without acting with gross negligence.
8.9 The above restrictions of this item 8 shall not be applicable to the supplier’s liability due to intentional acts or for guaranteed properties and features or due to injury to life, body or health or according to the product liability law. For these, the applicable laws and regulations shall be binding.
9. Choice of law, place of jurisdiction
This agreement shall be subject to German law and exclude the UN Convention on Contracts for the International Sale of Goods (CISG). Both parties agree that the exclusive place of jurisdiction is in the location of the supplier’s registered office.
The supplier shall be entitled to file a lawsuit against the purchaser with the court of law, which governs the purchaser’s registered office, or with any other court of law that may be in charge according to national or international law.
If any provision of the above partial items or letters is ineffective, the effectiveness of the remaining partial items or letters shall remain unaffected. In this case, the law that is mentioned under item 9 shall apply.
GTCP General Terms & Conditions of Purchase SIMA Germany GmbH – Betriebsstätte Lampertheim
VALIDITY FROM 01.02.2017
1 General remarks, area of validity
(1) The present general terms and conditions of purchase (AEB) apply to all business relationships with our business partners and suppliers (hereinafter called «vendors»). The AEB only apply if the vendor is an entrepreneur (§ 14 BGB [Civil Code]), a legal entity under public law or a public-sector fund.
(2) The AEB apply in particular to contracts on the sale and/or the delivery of movables (hereinafter also: goods), regardless of whether the vendor manufactures the goods himself or buys it from subcontractors (§§ 433, 651 BGB). The AEB apply in their current version as a framework agreement for future contracts on the sale and/or the delivery of movables with the same seller as well, without us having to refer to these again in individual cases.
(3) These AEB apply exclusively. Deviating, contrary or supplementary general terms and conditions by the vendor shall become a part of the contract only and insofar as we have expressly agreed in writing to their validity. This consent requirement applies in any case, for example even if we accept the vendor’s shipments unconditionally in the knowledge of his general terms and conditions.
(4) Individual agreements made with the vendor in a particular case (including collateral agreements, amendments and modifications) shall take priority over these AEB in any case. A written agreement or our written confirmation, respectively, prevails for the contents of such agreements.
(5) Legally relevant declarations and notifications to be submitted to us by the vendor after the signing of the contract (e.g. setting deadlines, reminders, resignation declaration) must be in writing to be effective.
(6) References to the validity of legal provisions serve clarification purposes only. Therefore, legal provisions apply even without such clarification, unless they are directly amended or expressly ruled out in these AEB.
2 Conclusion of contract
(1) Our order is deemed to be binding when written agreement or confirmation is submitted at the earliest. The vendor must point out obvious errors to us (e.g. spelling and calculation errors) and incompleteness of the order including the order documents, for the purpose of correction or completion, prior to acceptance, otherwise the contract is not considered to be signed.
(2) The vendor is obliged to confirm our order in writing within a period of 5 days or in particular to fill the order by shipping the goods unconditionally (acceptance).
Belated acceptance is considered a new offer that requires acceptance by us
3 Delivery time and delivery delay
(1) The delivery time listed by us on the order is binding. If the delivery time is not stated in the order and also was not agreed otherwise, it shall be 2 weeks after conclusion of the contract. The vendor is obligated to inform us promptly in writing if he expects not to be able to meet the agreed delivery time, for whatever reasons.
(2) If the vendor does not provide his service, or not within the agreed delivery times, or if he defaults on them, then our rights – in particular regarding rescission and compensation – are determined pursuant to legal provisions. The provisions in para. 3 shall remain unaffected.
(3) If the vendor is defaulting, we can – in addition to further legal claims – demand lump-sum compensation for our damage caused by delay in the amount of 0.5% of the net price per complete calendar week, but no more than 5% of the net price of the goods that were delivered behind schedule. We reserve the right to prove that greater damage has been caused to us. The vendor reserves the right to prove that none, or only significantly lower, damage has been caused to us.
4 Service, delivery, transfer of risk, default of acceptance
(1) The vendor is not entitled without prior written approval by us to have the service owed by him rendered by third parties (e.g. sub-contractors). The vendor assumes the procurement risk for his services, unless it is an individual construction.
(2) Shipment within Germany is «free to the door» to the location specified in the order. If the destination is not specified and if nothing else has been agreed, the delivery must be made to our place of business in Coburg. The respective destination is also the place of fulfilment (obligation to provide).
(3) The shipment must include a delivery note listing the date (printing and shipping), the contents of the shipment (item number and quantity) as well as our order identification (date and number). If the delivery note is absent or incomplete, we shall not be held responsible for any resulting delays in processing and payment.
Separate from the delivery note, a corresponding notification of dispatch with the same content must be mailed to us.
(4) The risk of accidental destruction and accidental deterioration of the item is transferred to us upon delivery at the place of performance. Insofar as acceptance has been agreed, this prevails for the transfer of risk. For the rest as well, the statutory provisions of the contract-for-work legislation apply accordingly for acceptance. The transfer or acceptance takes place irrespective of whether or not we are in default of acceptance.
(5) Statutory provisions apply to the start of our default of acceptance. The vendor must, however, still expressly offer his service to us if a specified or specifiable calendar time has been agreed for an activity or involvement to be performed by us (e.g. the supply of material). Should we be in default for acceptance, the vendor can demand compensation for his additional expenditures according to statutory provisions (§ 304 BGB). If the contract relates to an unwarrantable item to be manufactured by the vendor (custom-made item), then the vendor is entitled to additional rights only if we have undertaken to contribute and are responsible for our contribution remaining undone.
5 Prices and payment terms
(1) The price listed in the order is binding. All prices include statutory value-added tax unless it is shown separately.
(2) Unless agreed otherwise on a case-by-case basis, the price includes all services and additional services by the vendor (e.g. assembly, installation) as well as all additional expenses (e.g. proper packaging, portage including any transit insurance and liability insurance). The vendor must take back packaging material at our request.
(3) The agreed price is due for payment within 30 calendar days after complete delivery and service (including acceptance, if agreed) as well as receipt of a proper invoice. If we make the payment within 14 calendar days, the vendor shall grant us 3% discount for the net invoice amount. The invoice must not be included in the shipment but must instead be mailed to us separately.
(4) We do not owe any interest payable after the due date. The vendor’s claim for the payment of default interest remains unaffected. Statutory provisions apply regarding the beginning of our default. In any case, however, the vendor is required to mail an overdue notice.
(5) We are entitled to the right of setoff and the right of retention, as well as the objection of breach of contract, to the extent provided by law. We are in particular entitled to withhold payments due as long as we are still owed receivables from incomplete or deficient services against the vendor.
(6) The vendor is entitled to the right of setoff or the right of retention only on condition that counterclaims are established as final by a court of law, or undisputed.
6 Non-disclosure and retention of title
(1) We reserve the rights of non-disclosure and retention of title for images, plans, drawings, calculations, implementation instructions, product descriptions and other documents. Such documents must be used exclusively for the contractual services and returned to us after the contract has been completed. The documents must not be disclosed to third parties, not even after the contract is completed. The confidentiality agreement does not expire until, and insofar as, the knowledge contained in the documents ceded have become public knowledge.
(2) For each case of breach of confidentiality, the vendor commits to pay a contractual penalty in the amount of EUR 50,000 that will not be credited to any damage we suffer as a result of the breach of confidentiality.
(3) The provisions listed above apply accordingly to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other objects provided to the vendor for manufacture. Such objects must be – so long as they are not processed – kept safe separately at the vendor’s expense and must be insured for the usual amount against destruction and loss.
(4) Any processing, mixing or combination of objects provided by the vendor shall be performed by us. If, in processing, mixing or combining these objects with objects by third parties, their title to goods remains in place, then we shall acquire co-ownership in the new object in proportion of the value of the object supplied by us to the other objects.
(5) The assignment of goods to us shall take place unconditionally and irrespective of payment of the price. All forms of extended or prolonged retention of title are excluded at all events so that retention of title claimed to be effective by the vendor, if applicable, shall only apply until the goods delivered to us have been paid.
7 Bad delivery
(1) Statutory provisions apply regarding our rights in the event of material defects and defects of title of the goods (including misdelivery and undersupply as well as improper assembly, inadequate installation, operating instructions and user manual) and in the event of other breaches of duty by the vendor, unless specified otherwise below.
(2) According to statutory provisions, the vendor shall in particular be liable for the goods having the agreed quality at the time of transfer of risk to us. An agreement on quality shall also include those quality descriptions that are covered by the respective contract or were incorporated in the same manner as these AEB into the contract, in particular by description or reference in our order. It makes no difference in this respect whether the product description originated from us, from the vendor, or from the manufacturer.
(3) Unlike § 442 para. 1 sentence 2 BGB, we are also entitled unconditionally to claims for defects if the defect remained unknown to us due to gross negligence at the time the contract was signed
(4) Statutory provisions (§§ 377, 381 HGB) apply to the commercial obligation to inspect and to give notice of defects, with the following proviso: Our duty to inspect is confined to defects that came to light in external appraisal during our goods receipt inspection including the delivery notes, as well as during our quality control using random sampling (e.g. damage suffered in transit, misdelivery and undersupply). If acceptance has been agreed, there is no duty to inspect. For the rest, it depends on to what extent an inspection in due consideration of the circumstances of the individual case are feasible in the proper course of business. Our obligation to give notice of defects for defects that are found later remains unaffected. In all events, our reproof (notification of defects) is deemed prompt and timely if it is received by the vendor within 5 working days.
(5) If, as a consequence of bad delivery, incoming control becomes necessary that exceeds the usual scope according to para. 4, the vendor shall bear the cost for this.
(6) If the vendor fails to meet his obligation of supplementary performance – at our discretion, by remedy of defects (amendment) or by shipping an item that is free of defects (compensation delivery) – within an appropriate period of time specified by us, then we can remedy the defect ourselves and can demand compensation from the vendor for the necessary expenses, or can demand an appropriate advance payment. If compensation delivery has failed due to the vendor, or is unreasonable for us (e.g. due to special urgency, a threat to operating safety or pending occurrence of excessive damage), no deadline is required; the vendor must be informed promptly, if possible in advance.
(7) Furthermore, we are entitled to reduce the purchase price or to withdraw from the contract in the event of a material defect or a defect of title, in accordance with statutory provisions. In addition, we can claim compensation and reimbursement of expenses according to statutory provisions.
8 Supplier’s recourse
(1) We are unconditionally entitled to our right of recourse within a delivery chain as provided by law (supplier’s recourse pursuant to §§ 478, 479 BGB), in addition to claims for defects. We are in particular entitled to demand exactly the type of supplementary performance (amendment or compensation delivery) from the vendor that we owe our customer in an individual case. Our legal right to vote (§ 439 para. 1 BGB) is not restricted hereby.
(2) Before we recognize or fulfil a claim for defects asserted by one of our customers (including compensation for expenses pursuant to §§ 478 para. 3, 439 para. 2 BGB), we shall inform the vendor and ask for a written statement stating the facts and circumstances of the matter. If the statement is not provided within a reasonable period of time, and if no cooperative solution is brought about, then the claim for defects actually granted by us is deemed due our customer; in this case, the vendor is responsible for producing evidence to the contrary.
(3) Our claims from supplier’s regress shall apply also if the goods were reprocessed prior to us, or one of our customers, selling it to a consumer, e.g. by installing it in another product.
9 Producer liability
(1) If the vendor is responsible for a product defect, he must indemnify us against claims by third parties insofar as the cause is located in his sphere of control and organisation and he is himself liable in external obligation.
(2) In the context of his indemnity obligation, the vendor must refund expenses pursuant to §§ 683, 670 BGB that result from, or in connection with, services for third parties, including the recall actions performed by us. We shall inform the vendor regarding the contents and the scope of recall measures – if possible and reasonable – and give him an opportunity to comment. Further legal claims remain unaffected.
(3) The vendor must take out and maintain product liability insurance at a flat-rate limit of liability of at least EUR 10 million per personal/material damage.
10 Statute of limitations
(1) The mutual entitlements of the contracting parties shall expire by limitation according to statutory provisions, unless agreed otherwise below.
(2) At variance with § 438 para.1 no.3 BGB, the general statute of limitations for claims for defect is 3 years after transfer of risk. If acceptance has been agreed, the statute of limitations begins at the time of acceptance. The 3-year limitation period applies accordingly also to claims from defects of title, whereby the statutory limitation period for material claims for surrender by third parties (§ 438 para.1 no.1 BGB) remains unaffected; claims from defects of title furthermore do not expire in any case so long as the third party can still assert his right – in particular in the absence of a statute of limitations – against us.
(3) The statute of limitations of the sale of goods law including the extension mentioned above apply – to the extent of the law – to all contractual claims for defects. Insofar as wee are also entitled to out-of-contract claims for compensation due to a defect, ordinary statutory limitation applies to this (§§ 195, 199 BGB) unless the application of the period of limitations of the sale of goods law leads to a longer period of limitation in a given case.
11 Performance of work
Persons associated with the vendor who perform work in order to perform contractual work in our business premises, must observe the regulations of the respective work regulations. The regulations for entering and leaving the facilities must be complied with. Liability for accidents suffered by these persons on our business premises is excluded, unless they were caused by us deliberately or through gross negligence.
12 Applicable law and place of jurisdiction.
(1) For these AEB and all legal relationships between us and the vendor, the law of the Federal Republic of Germany applies, to the exclusion of all international and supranational (contract) legal systems, in particular the UN Convention on Contracts for the International Sale of Goods. Requirements and effects of title retention are subject to the law at the respective location of the subject-matter, insofar as the choice of applicable law in favour of German law is impermissible or ineffective.
(2) If the vendor is a merchant within the meaning of the code of commercial law, a corporate body under public law, or a public-sector fund, the exclusive – even international – place of jurisdiction for all disputes arising from the contractual relationship is our place of business in Coburg. We are, however, also entitled to file a suit at the place of fulfilment of the delivery obligation.