General Terms and Conditions of Sale and Delivery - Nexans autoelectric GmbH
1. Content of Contract
The acceptance and carrying out of supply orders can take place only according to the following conditions. General terms and conditions of the purchaser shall apply only if and when expressly accepted by the supplier in writing.
2. Payment terms
In the absence of a longer payment deadline being given in writing, the purchase amount must be paid in full and free of any charge into the supplier’s account as stated on the invoice, within 30 days of the date on the invoice. Overrunning of the payment deadline constitutes a fundamental breach of contract. Regardless of any legal remedy, the supplier may demand interest at the rate of 5 percentage points p.a. over the basic rate of the Deutsche Bundesbank.
3. Conditions of supply / time for supplies / delay
- In the absence of any other agreement, supply will take place EXW (according to Incoterms 2000). Supply deadlines in these cases refer to the preparation of the goods for dispatch. Once the goods are prepared, the responsibility passes over to the purchaser.
- Times set for supplies can only be observed if all documents to be supplied by the purchaser, necessary permits and releases are received in time and if agreed terms of payment and other obligations of the purchaser are fulfilled. Unless these conditions are fulfilled in time, times set shall be extended appropriately; this shall not apply where the supplier is responsible for the delay.
- If non observance of the times set is due to force majeure such as mobilization, war, rebellion or similar events, e.g. strike or lockout, such time shall be extended accordingly.
- If the supplier is responsible for the delay (hereinafter referred to as “delay”) and the purchaser demonstrably suffered a loss therefrom, the purchaser may claim a compensation as liquidated damages of 0.5% for every completed week of delay, but in no case more than a total of 5% of the price of that part of the supplies which because of the delay could not be put to the intended use.
- Purchaser´s claims for damages due to delayed supplies as well as claims for damages in lieu of performance exceeding the limits specified in d) above shall be excluded in all cases of delayed supplies even upon expiry of a time set to the supplier to effect the supplies. This shall not apply in cases of mandatory liability based on intent, gross negligence, or due to injury of life, body or health. Cancellation of the contract by the purchaser based on law shall be limited to cases where the supplier is responsible for the delay. The above provisions do not imply a change in the burden of proof to the detriment of the purchaser.
- The purchaser is obliged to accept the goods, even if the goods vary from the ordered amount by up to 10%. Larger variations in quantity are permissible if the packaging units do not correspond with the ordered quantity.
4. Defects as to Quality
- Drafts or specifications provided by the purchaser serve to define the products ordered by the purchaser. Unless agreed elsewhere, they do not constitute a guaranteed quality nor any extension of the purchaser’s rights. The same applies to the provision of samples.
- All parts or services where a defect becomes apparent within the limitation period shall, at the discretion of the supplier, be repaired, replaced or provided again free of charge within a reasonable period of time irrespective of the hours of operation elapsed, provided that the reason for the defect had already existed at the time when the risk passed.
- If supplementary performance as described in 4.2 is unsuccessful, the purchaser shall be entitled to cancel the contract or reduce the remuneration, irrespective of any claims for damages it may have according to No. 9.
- The purchaser shall notify defects to the supplier in writing without undue delay.
- Claims based on defects are subject to a limitation period of 6 months. This provision shall not apply where longer periods are prescribed by law according to Sec. 438 para. 1 No. 2 (building and things used for a building), Sec. 479 para. 1 (right of recourse), and Sec. 634a para. 1 No. 2 (defects of a building) German Civil Code (BGB), as well as in cases of injury of life, body or health, or where the supplier intentionally or grossly negligently fails to fulfil its obligations or fraudulently conceals a defect. The legal provisions regarding suspension of expiration (“Ablaufhemmung”), suspension (“Hemmung”) and recommencement of limitation periods remain unaffected.
- The purchaser only has the right to withhold payment of the purchase amount or to offset it with counterclaims in the case of claims found to be legally valid by the court having jurisdiction over the matter and/or claims recognised by the supplier.
- There shall be no claims based on defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usefulness, of natural wear and tear or damage arising after the transfer of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective workmanship or from non-reproducible software errors. Claims based on defects attributable to improper modifications or repair work carried out by the purchaser or third parties and the consequences thereof shall be likewise excluded.
- The purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, including costs of travel and transport, labour, and material, to the extent that expenses are increased because the subject-matter of the supplies was subsequently brought to another location than the purchaser´s branch office, unless doing so complies with the intended use of the supplies.
- The Purchaser`s right of recourse against the Supplier pursuant to Sec. 478 BGB is limited to cases where the Purchaser has not concluded an agreement with ìts customers exceeding the scope of the statutory provisions governing claims based on Defects. Moreover, No. h, above shall apply mutatis mutandis to the scope of the right of recourse the purchaser has against the supplier pursuant to Sec. 478 para. 2 BGB.
- Furthermore, the provisions of No.9 (Other Claims for Damages) shall apply in respect of claims of damages. Any other claims of the purchaser against the supplier or ìts agents or any such claims exceeding the claims provided for in this No. 4, based on a defect, shall be excluded.
5. Industrial property rights and copyright; Defects in title
- Unless otherwise agreed, the supplier shall provide the supplies free from third parties` industrial property rights and copyrights (hereinafter referred to as “IPR”) with respect to the country of the place of destination. If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR with respect to the Supplies made by the Suppplier and then used in conformity with the contract, the Supplier shall be liable to the Purchaser within the time period stipulated in No. 4.5 as follows
1.1. The supplier shall choose whether to acquire, at íts own expense, the right to use the IPR with respect to the supplies concerned or whether to modify the supplies such that they no longer infringe the IPR or replace them. If this would be unreasonable to demand from the supplier, the purchaser may cancel the contract or reduce the remuneration pursuant to the applicable statutory provisions.
1.2. The supplier`s liability to pay damages shall be governed by No. 9.
1.3. The above obligations of the supplier shall only apply if the purchaser (i) immediately notifies the supplier of any such claim asserted by the third party in writing, (ii) does not concede the existence of an infringement and (iii) leaves any protective measures and settlement negotiations to the discretion of the supplier. If the purchaser stops using the supplies in order to reduce the damage or for other good reason, it shall be obliged to point out to the third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued.
- Claims of the purchaser shall be excluded if it is itself responsible for the infringement of an IPR.
- Claims of the purchaser shall also be excluded if the infringement of the IPR is caused by specifications made by the purchaser, to a type of use not foreseeable by the supplier or to the supplies being modified by the purchaser or being used together with products not provided by the supplier.
- In addition, with respect to claims by the purchaser pursuant to No. 51., 1.1. above, No. 4.6., 4.7. and 4.9. shall apply mutatis mutandis in the event of an infringement of an IPR.
- Where other defects in title occur, No. 5 shall apply mutatis mutandis.
- Any other claims of the purchaser against the supplier or íts agents or any such claims exceeding the claims provided for in this No. 5, based on a defect in title, shall be excluded.
6. Impossibility of performance; Adaptation of contract
- To the extent that supplies are impossible to be carried out, the purchaser shall be entitled to claim damages, unless the supplier is not responsible for the impossibility. The purchaser´s claim for damages shall, however, be limited to an amount of 10% of the value of the part of the supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in the case of mandatory liability based on intent, gross negligence or injury of life, body or health; this does not imply a change in the burden of proof to the detriment of the purchaser. The right of the purchaser to cancel the contract shall remain unaffected.
- Where unforeseeable events within the meaning of No.3 substantially change the economic importance or the contents of the supplies or considerably affect the supplier`s business, the contract shall be adapted taking into account the principles of reasonableness and good faith. Where doing so is economically unreasonable, the supplier shall have the right to cancel the contract. If the supplier intends to exercise íts right to cancel the contract, it shall notify the purchaser thereof without undue delay after having realised the repercussions of the event; this shall also apply even where an extension of the delivery period had previously been agreed with the purchaser.
7. Product liability, recall, documentation
- Regardless of the legal obligations of the supplier, the purchaser accepts the product observation obligation, resulting from use of the supplied products as his own, and informs the supplier of this.
- If either of the contracting parties has cause to believe that a product recall is necessary because of one of the supplierss products, they must inform the other party of their reasons immediately, at the latest within 3 working days and supply the documentation supporting their opinion. The other party must comment on the concerns and the possible product recall within a further 3 working days. Should the contracting parties not come to an agreement using written communication over the necessity of a product recall, the extent of recall or who should bear the costs, one of the parties can set a date for a meeting, with a minimum announcement time of 2 working days, to which persons from each contracting party, who are authorised to make decisions on the matter must attend. If one party does not act in accordance with the planned course of action, they may not make a claim against the other party, saying that the product recall was objectively necessary or unnecessary, unless the other party has misjudged this either in a case of gross negligence or intentionally.
- The purchaser is obliged to document the use of the supplied products for a period of at least 15 years, in order that complete tracking is possible.
8. Retention of ownership
The goods supplied remain the property of the supplier until complete payment has been received. The purchaser is obliged to take the necessary measures to uphold the reservation of proprietary rights – or comparable protection rights in the country in which he operates or the country of destination - and if requested to prove these to the supplier. Non-compliance constitutes a fundamental breach of contract.
9. Other claims for damages
- Any claims for damages and reimbursement of expenses the purchaser may have (hereinafter referred to as “claims for damages”), based on whatever legal reason, including infringement of duties arising in connection with the contract or tort, shall be excluded.
- The above shall not apply in the case of mandatory liability, e.g. under the German Product Liability Act (“Produkthaftungsgesetz”), in the case of intent, gross negligence, injury of life, body or health, or breach of a condition which goes to the root of the contract (“wesentliche Vertragspflichten”). However, claims for damages arising from a breach of a condition which goes to the root of the contract shall be limited to the foreseeable damage which is intrinsic to the contract, unless caused by intent or gross negligence or based on liability for injury of life, body or health. The above provision does not imply a change in the burden of proof to the detriment of the purchaser.
- To the extent that the purchaser has a valid claim for damages according to this No. 9, it shall be time-barred upon expiration of the limitation period applicable to defects pursuant to No. 4.5. In the case of claims for damages under the German Product Liability Act, the statutory provisions governing limitation periods shall apply.
10. Applicable law, place of jurisdiction
- On contracts related to the business relationship between the supplier and his clients, who are located in other countries and their sales contracts, the applicable law is the United Nations Convention on Contracts for the International Sale of Goods (CISG). Queries involving issues not regulated by this convention, or which cannot be decided according to these principles, must be decided according to the applicable law at the headquarters of the supplier.
- For disputes between the supplier and a domestic client, the only court of jurisdiction will be the court at the location of the supplier.
- Disputes between the supplier and a client located in another country will be finally decided according to the rules of arbitration of the International Chamber of Commerce in Paris, by one or more arbitrators, appointed according to these rules. The court of arbitration will be situated at the location of the supplier. The language of arbitration will be English or German.
11. Other issues
In the event that the above terms and conditions of supply and performance or individual regulations of the contracts concluded on the principles of these terms and conditions should be found to be wholly or partially inoperative, this does not affect the effectiveness of other conditions. In this event, the contracting parties will replace the inoperative condition with an operative one, which fulfils the economic purpose as far as is permissible. The definitive version of these terms and conditions is the German version.