General Terms & Conditions
- I. General
- II. Offer and scope of delivery
- III. Prices and payment
- IV. Delivery period
- V. Transfer of risk and acceptance
- VI. Reservation of title
- The following general terms and conditions apply to contractual relationships with business people in the context of business operations and with corporate bodies according to public law, including special assets under public law.
- Our deliveries, services and offers take place exclusively on the basis of these terms and conditions. They thus apply to all future business relations. At the latest, these conditions are considered to have been accepted with the acceptance of the product or service. The validity of contradictory terms and conditions is thus contradicted. This is also the case when the orderer refers to his terms and conditions or conditions of purchase through counter-affirmations or other methods.
- Deviations from these terms and conditions are only effective when confirmed in writing or in text form by us. These terms and conditions replace all previous terms and conditions.
II. Offer and scope of delivery
- The documents relating to the offer, such as illustrations, drawings, weights and measures, are only approximately decisive when they are not expressly designated as binding. The supplier may only make plans designated by the orderer as confidential available to third parties with his written consent.
- The offers of the supplier are without engagement and non-binding. Declarations of acceptance and all orders require the written or text confirmation of the supplier to be legally valid. The same applies to addenda, amendments or supplementary agreements.
III. Prices and payment
- Prices are without engagement. All orders are only accepted on the basis of the prices valid at the time of ordering and are understood as not including shipping costs. The prices do not include the relevant mandatory value added tax.
- When not otherwise agreed upon, the invoices of the supplier become payable in full 30 days following invoicing. Payment is first considered as having been made when the supplier has the amount at his disposal.
- The orderer shall only be entitled to offset and/or withhold payments due to such counterclaims to the extent that these are undisputed or have been legally established or arise from the same order under which the delivery in question was made.
- If payment is deferred or if the orderer is in default, we shall be entitled to charge interest at a rate of 9 percentage points p.a. above the respective base interest rate on the purchase price claim. The supplier shall be at liberty to assert any further damage caused by default.
IV. Delivery period
- Deadlines and dates for deliveries and services promised by the supplier are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport, unless expressly stated otherwise by the supplier.
- The supplier may - without prejudice to its rights arising from default on the part of the orderer - demand from the orderer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period of time during which the orderer fails to fulfil its contractual obligations towards the supplier.
- The supplier shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events that were not foreseeable at the time of the conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining the necessary official permits, pandemics or epidemics, official measures or the non-delivery, incorrect delivery or late delivery by suppliers despite a congruent hedging transaction concluded by the supplier) for which the supplier is not responsible. If such events make it considerably more difficult or impossible for the supplier to deliver or perform and the hindrance is not only of temporary duration, the supplier shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. If the orderer cannot reasonably be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by immediately notifying the supplier in writing.
- The observance of the term of delivery presumes the fulfilment of the contractual obligations of the orderer.
- When not otherwise agreed upon, call off orders are to be completely accepted within one year.
V. Transfer of risk and acceptance
- If shipment of the goods has been agreed and the supplier has not assumed responsibility for transport or installation, the risk shall pass to the orderer at the latest upon handover of the delivery item (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. At the request of the orderer, the supplier shall insure the consignment at the orderer's expense.
- Should shipment be delayed for reasons for which the orderer is responsible, the risk is transferred to the orderer from the day on which readiness for shipment is notified. However, the supplier is obligated to affect the insurance policy demanded by the orderer upon the wish and at the expense of the orderer.
- Delivered objects, even when they have insignificant defects, are to be accepted by the orderer, irregardless of the rights arising from paragraph VII.
- The supplier shall be entitled to effect partial deliveries as far as this is reasonable for the orderer.
VI. Reservation of title
The supplier reserves title to the delivery object until all claims of the supplier made of the orderer originating from the business relationship, including future claims, also from contracts closed simultaneously or subsequently, have been settled. This also applies when individual or all claims of the supplier have been included in an open invoice and the balance has been balanced and acknowledged. In the event of behaviour contrary to contract on the part of the orderer, especially in cases of default of payment, the supplier is authorised to recover the delivery object following a dunning letter and the orderer is obligated to return. The recovery and the attachment of the object on the part of the supplier does not represent withdrawal from the contract, unless a declaration of withdrawal in writing on the part of the supplier exists. In the event of attachment or other intervention on the part of third parties, the orderer must inform the supplier in writing without delay. The orderer is authorised to resell the object of delivery in a correct business transaction. However, he already now surrenders to the supplier all claims arising for him with reference to the receiver or third parties in the context of the resale, regardless of whether the goods subject to retention of title are resold without or following processing. The orderer shall also be entitled to collect these claims after the surrender. The capacity of the supplier to collect the claims remains unaffected by this. However, the supplier is obligated to dispense with collecting the claims as long as the orderer meets his payment obligations in an orderly fashion. The supplier may demand that the orderer disclose the surrendered claims and its debtors, provide all necessary information for collection, turn over the associated documents and inform the debtors of the surrender. When the object of delivery is resold together with other goods not belonging to the supplier, the claim of the orderer made against the recipient to the amount of the delivery price agreed upon between the supplier and the orderer is considered surrendered. The processing or alteration of the goods subject to retention of title shall always be conducted by the orderer on behalf of the supplier. If the objects of delivery subject to retention of title are processed together with other objects not belonging to the supplier, the supplier acquires partial ownership of the new object to the value of the goods subject to retention of title in relation to the other processed objects at the point in time of processing. The same applies to the object resulting from the processing as for the goods subject to retention of title. The supplier is obligated to release the securities to which he is entitled upon request of the orderer to the extent that their value exceeds the total claim arising from the business relationship by more than 20%, when this has not yet been settled.
VII. Liability for defects and delivery
- The warranty period shall be two years from delivery. This period shall not apply to claims for damages of the orderer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by the supplier or its vicarious agents, which shall in each case be timebarred in accordance with the statutory provisions.
- The delivered items shall be inspected carefully immediately after delivery to the orderer or to the third party designated by the orderer. With regard to obvious defects or other defects which would have been recognisable in the course of an immediate, careful examination, they shall be deemed to have been approved by the orderer if the supplier does not receive a written notice of defect within seven days (Monday - Saturday) after delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the orderer if the supplier does not receive a written notice of defect within seven days (Monday - Saturday) after the point in time at which the defect became apparent; if the defect was already apparent at an earlier point in time during normal use, however, this earlier point in time shall be decisive for the commencement of the period for giving notice of defect. At the supplier's request, a rejected delivery item shall be returned to the supplier carriage paid. In the event of a justified complaint, the supplier shall reimburse the costs of the most favourable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
- In the event of material defects of the delivered items, the supplier shall first be obliged and entitled to rectify the defect or to make a replacement delivery at its discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the orderer may withdraw from the contract or reduce the purchase price appropriately.
- If a defect is due to the fault of the supplier, the orderer may claim damages under the conditions set out in Section VIII.
- The warranty shall lapse if the orderer modifies the delivery item or has it modified by a third party without the supplier's consent and the rectification of the defect becomes impossible or unreasonably difficult as a result. In any case, the orderer shall bear the additional costs of remedying the defect resulting from the modification.
- A delivery of used items agreed with the orderer in individual cases shall be made to the exclusion of any warranty for material defects.
VIII. General limitation of liability
- The supplier shall have unlimited liability for damage resulting from the breach of a guarantee or from injury to life, limb or health. The same applies to intent and gross negligence or if the supplier has assumed a procurement risk.
- The supplier shall only be liable for slight negligence if essential obligations are breached which result from the nature of the contract and which are of particular importance for achieving the purpose of the contract. In such a case, the supplier's liability shall be limited to such damage as is typically to be expected within the scope of the contract. A mandatory legal liability for product defects remains unaffected.
- Insofar as the supplier's liability is excluded or limited, this shall also apply to the personal liability of the supplier's employees, workers, staff, representatives and vicarious agents.
IX. Right of the orderer to withdraw
- When a delay in performance as defined by Section IV of the delivery conditions occurs, and when the orderer grants the delaying supplier an appropriate extension with the express declaration that he will refuse to accept the service following the expiration of this period, and this extension is not met, the orderer is authorised to withdraw.
- In the event that it becomes impossible to perform during the default in acceptance or at the fault of the orderer, the orderer is still obligated to provide service in return.
- When the orderer declares his withdrawal, all other subsequent claims of the orderer, in particular termination or reduction, as well as compensation for damages of any kind, including such damages not incurred by the object of delivery itself, are excluded when these damages are not due to wilful misconduct or grossly negligent conduct on the part of the supplier or on the part of the proxies or vicarious agents of the supplier, or when damages resulting from injury to life, limb or health are involved.
X. Right of the supplier to withdraw
In the event of unforeseen events as defined by Section IV of the delivery conditions, insofar as they significantly alter the economic importance or the content of the service, or have a significant influence on the operations of the supplier, and in the event of the impossibility of execution becoming retroactively apparent, the contract shall be appropriately adapted. When this is not economically justifiable, the supplier has the right to entirely or partially withdraw from the contract. Claims to compensation for damages on the part of the orderer due to such a withdrawal do not exist, unless these claims are due to grossly negligent conduct or wilful misconduct on the part of the supplier or on the part of the proxies or vicarious agents of the supplier. Should the supplier wish to make use of his right to withdraw, he is to inform the orderer without delay upon recognising the significance of the event, even when an extension of the delivery period has initially been agreed upon with the orderer.
XI. Applicable law, legal venue, partial nullity
- The law of the Federal Republic of Germany applies to these terms and conditions and to the entire legal relationship between the supplier and the orderer, and expressly excludes the applicability of the UN Convention on Contracts for the International Sale of Goods.
- Unless otherwise agreed, the place of performance for all reciprocal obligations is the registered office of the supplier.
- The exclusive place of jurisdiction for all disputes arising from the business relationship between the supplier and the orderer shall be the registered place of the supplier. The supplier shall also be entitled to institute legal proceedings at the orderer's place of business and at any permissible place of jurisdiction. Arbitration clauses are contradicted.
- Should a provision in these terms and conditions or a provision in the framework of other agreements be or become ineffectual, the effectiveness of the other provisions or agreements is not affected by this.
- These Terms and Conditions of Purchase have been drawn up in German and English. In the event of contradictions and discrepancies between the German and English version, the German version shall prevail.
Status: January 2024 Oriental Motor (Europa) GmbH