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This version is just for information a translation of the solely binded most actual German version "Allgemeine Lieferbedingungen der Limtronik GmbH".
These general terms of supply exclusively apply to the legal relationship between Supplier (Limtronik) and Purchaser in relation to deliveries and/or services (subsequently referred to as deliveries). However, the Purchaser's general terms and conditions only apply to the extent that the Supplier or service provider (subsequently referred to as Supplier) expressly agreed to them in writing. The mutually agreed upon written declarations determine the scope of delivery.
The Supplier retains full right of retention and proprietary patent rights for all estimates, drawings and other documents (subsequently referred to as documents). Documents may only be made available to third parties after the Supplier's prior agreement. If a contract is not awarded to the Supplier, the documents must be returned to Supplier immediately on demand. Sentence 1 and 2 apply to Purchaser's documents accordingly. However, documents may be made available to third parties, which the Supplier had permission to subcontract deliveries to.
The Purchaser does not have an exclusive right of use on standard software and firmware with agreed-upon performance features, provided it has been installed without alteration on agreed-upon devices. The Purchaser may make a backup copy of standard software without requiring express agreement.
Partial deliveries are permissible, provided they are reasonable to the Purchaser.
The Purchaser is to cover any auxiliary expenses necessary such as travel expenses, transportation costs for tools, personal gear and daily allowance if the Supplier is to install or construct and no special agreements have been made.
These prices are based at the time of proposal submittal. Should the factors establishing the price (in particular increase in the cost of material, modifications of quantities, bill of material and processes) between proposal submittals and delivery change, we are entitled to adapt the prices.
The Supplier retains the title in the goods delivered (goods subject to retention of title) until the Purchaser satisfied all claims the Supplier has against the Purchaser because of this business relation. On Purchaser's demand, the Supplier will release the appropriate portion of securities, if the total value of securities held by the Supplier exceeds the total value of secured claims by more than 20%. The Supplier may choose which type of security to release.
While the right of retention is in force, the Purchaser is forbidden to mortgage securities provided or to use them again as securities. The Purchaser is allowed to sell securities provided only in the usual course of business and with the provision, that the reseller obtains payment from its customers or to sell these under the provision, that the title in the goods is transferred to its customers only after full payment has been made.
The Purchaser assigns with this regulation future receivables from a resale of the goods to the Supplier as security - including possible claims on outstanding balances - in case the Purchaser resells goods subject to retention of title. No additional declarations are necessary for this regulation to take effect. The Purchaser assigns that part of total receivables to the Supplier that equals the amount charged by the Supplier for goods subject to retention of title, if a resale of goods subject to retention of title occurs in combination with other goods and no individual price is demanded for the goods subject to retention of title.
a) The Purchaser is entitled to process goods subject to retention of title or to mix or combine these with other items. Processing, mixing or combination (subsequently called processing) occurs on be hall of the Supplier. The Purchaser keeps the new item on behalf of the Supplier with the care of a prudent businessperson. The new items are considered as goods subject to retention of title.
b) By way of this regulation, Supplier and Purchaser agree, that the Supplier - in any event - becomes a co-owner in the new item for med by the combination or mixing with items that do not belong to the Supplier. The Supplier is entitled to co-ownership in the new item to the degree which results from the relationship of the value of the combined or mixed good subject to retention of title and the value of the remaining goods at the point in time when the items were combined or mixed. To that degree, the new item is considered a good subject to retention of title.
c) The regulations on the assignment of receivables according to No. 3 apply to the new item accordingly. However, the assignment only applies to the value of the processed, combined or mixed item subject to retention of title billed by the Supplier.
d) With this regulation, the Purchaser assigns receivables and any ancillary rights for combined items as security to the Supplier, if the Purchaser combines goods subject to retention with land or mobile items. No additional declaration is necessary for this to take effect. The amount assigned as security is determined by the relationship of the value of the combined item subject to retention of title with the remaining value of the combined item at the point in time of combination.
Unless revoked, the Purchaser is entitled to collect assigned book accounts from a resale. The Supplier is entitled to revoke the Purchaser's right to collect assigned book accounts if important reasons exist on the part of the Purchaser, particularly delays of payment, cessation of payment, opening of insolvency proceedings, protest of a bill or reasonable indication of an indebtedness or threatened impossibility to pay. After warning and observing a reasonable term, the Supplier is entitled to disclose the Purchaser's security assignment, to utilize the disclosed assigned book account or demand that the Purchaser discloses the security assignment to the Supplier's customer.
The Purchaser is to inform the Supplier immediately in case of garnishment, seizure or other court orders or interventions by third parties. The Purchaser is to provide the Supplier with any documents necessary for the Supplier to enforce his or her rights in regard to his or her customers, provided prima facie evidence is provided for a legitimate interest.
The Supplier is entitled to take back goods delivered and to cancel the contract if the Purchaser neglects his or her duties, particularly is in default with payments, and does not satisfy claims within a reasonable time set by the Supplier. Legal regulations on the dispensability of setting a time limit are not affected by this. The Purchaser is obliged to release goods. The fact that the Supplier takes back goods and/or claims retention of title or seizes goods subject to retention of title does not constitute a cancellation of the contract, unless the Supplier explicitly declares this the case.
The Purchaser must timely provide all documents, required permissions and clearances (particularly drawings) and observe agreed-upon terms of payment as well as other Purchaser obligations for terms of delivery to take effect. These terms extend accordingly if these requirements have not been fulfilled on time. This does not apply if the Supplier is responsible for delays.
If non-observance of the times set is due to:
a) force majeure, such as mobilization, war, terror attacks, rebellion of similar events (e.g. strike or lockout)
b) virus attacks or other attacks of the Supplier's IT systems occurring despite protective measures were in the place that complied with the principles of proper care;
c) hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or to other circumstances for which Supplier is not responsible; or
d) the fact that Supplier does not receive its own supplies in due time or in due form
such times shall be extended accordingly.
In case of delayed deliveries, the Purchaser may claim damages for every full week of delay at 0.5% and a total of no more than 5% of the price of the part of the delivery that could not be used as intended because of the delay, provided the Purchaser provides evidence of damages suffered.
The Purchaser cannot claim damages because of delayed deliveries, or damages instead of the delivery, beyond the limits specified in Article IV No. 3 above. This applies to all cases of delayed delivery, even if an additional time limit set by the Purchaser for a delivery has been missed. This does not apply in case of mandatory statutory liability because of intentional or gross negligence or damage to life, body or health. The Purchaser may legally withdraw from a contract only if the Supplier is responsible for the delay. The above regulations do not change the burden of proof to the Purchaser's disadvantage.
The Purchaser is obliged to declare on Supplier's request and within a reasonable time limit set whether he or she wishes to withdraw from the contract because of a delay or insists on delivery.
If shipment or delivery is delayed on Purchaser's request for more than one month after notification of readiness for shipment, the Supplier is entitled to charge storage charges at 0.5% but not more than 5% of the price of goods concerned for every month begun. The parties to the contract may provide evidence of higher or lower storage charges.
The customer pays tools and jigs developed to perform customer's orders. The customer pays 100% of the costs if metal templates have to be newly manufactured because of wear and tear. Metal templates and jigs as well as set-up costs depend on batch size. We reserve the right to charge for repeated manufacturing of metal templates, which may be advisable in high-quantity production runs.
The following terms apply for installation and assembly, provided no other terms have been agreed upon in writing:
Prior to the beginning of assembly work the Purchaser is to provide, without being requested to do so, necessary information on the location of covered power, gas and water lines and similar facilities as well as necessary static details.
All provisions and devices necessary to begin a task must be at the installation or assembly location before installation and assembly work are begun and all preparatory work must have advanced to a point, prior to the beginning of installation work, that the installation or assembly can be performed, according to the contractual agreements, without interruptions. Access roads and installation or assembly location must have been levelled off and cleared.
The Purchaser is to attest promptly to the Supplier weekly working hours of assembly personnel as well as the end of installation, assembly or commissioning.
The Purchaser is to perform acceptance procedures within two weeks if requested by Supplier at the completion of services. Acceptance is assumed to have been granted if this procedure is not being followed. Acceptance is also assumed of having been granted if the delivery is being used - or used after a possibly agreed upon test period.
The buyer must not refuse acceptance of the delivery for irrelevant defects.
The Supplier shall be liable for Defects as to quality ("Sachmängel", hereinafter referred to as "Defects",) as follows:
The Supplier, on his or her own discretion, is to remedy, newly deliver or newly provide those parts or services without charge that have a material Defect, provided the reason for the Defect occurred before the transfer of risk. The Supplier's warranties for Defects concerning electrical functionalities of the module/device are excluded if Defects concern the electrical functionality of the module/device and it has been agreed that Limtronik does not perform electrical tests.
Claims for repair or replacement are subject to a statute of limitations of 12 months calculated from the start of the statutory of limitations; the same shall apply mutatis mutandis in the case of rescission and reduction. This shall not apply:
- where longer periods are prescribed by law according to Sec. 438 para. 1 No. 2 (buildings and things used for a building), and Sec. 634a para. 1 No. 2 (Defects of a building) German Civil Code ("Bürgerliches Gesetzbuch),
- in the case of intent
- in the case of fraudulent concealment of the Defect or
- non-compliance with guaranteed characteristic ("Beschaffenheitsgarantie")
Claims for the reimbursement of expenses on the part of the Purchaser in accordance with Sec. 445a BGB (entrepreneur's right of recourse) shall likewise be subject to a statute of limitations of 12 months from the start of the statutory statute of limitations, provided the last contract in the supply chain is not a sale of consumer goods.
The legal provisions regarding suspension of the statute of limitations ("Ablaufhemmung", "Hemmung") and recommencement of limitation periods shall be unaffected.
The Purchaser has to submit notices of Defect in writing promptly.
In case of a notice of Defect, the Purchaser may withhold payments in accordance to the extent of the material Defects found. In case a notice of Defect has been served, the Purchaser may withhold payments only if there is no doubt about the notice's validity. The Purchaser does not have a right of retention if claims from Defects have become time-barred. The Supplier is entitled to claim compensation from the Purchaser for expenses incurred because of if legitimate claims based on Defects.
The Supplier must be given a reasonable time limit to remedy Defects.
The Purchaser may withdraw from the contract or reduce the payment - without affecting damage claims according to No. 10 - if the remedy is of no avail.
Claims for remedy of Defects are excluded if deviations from contractually agreed properties are insignificant, if usability is affected only slightly, in case of normal wear and tear or in case of damages that have occurred after the transfer of risk due to incorrect or improper treatment, excessive use, unsuitable operating fluids, faulty construction of buildings, unsuitable building ground or due to special, external influences that have not been envisioned in the contract as well as in case of non-reproducible software errors. Claims from Defects are excluded for unprofessional changes or maintenance work (and its consequences) performed by the Purchaser or third parties.
The Purchaser cannot derive claims for compensation because of expenses necessary in performing remedies (particularly costs for transportation, travel, work and material) if these expenses have increased because the delivery's subject matter (object) subsequently has been relocated to another location than the Purchaser's subsidiary (unless the relocation is in line with the intended use of the object). This applies accordingly to claims for the reimbursement of expenses on the part of the Purchaser in accordance with Sec. 445a BGB (entrepreneur's right of recourse), provided the last contract in the supply chain is not a sale of consumer goods.
The Purchaser's right of recourse against the Supplier pursuant Sec. 445a BGB (entrepreneur's right of recourse) is limited to cases where the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects.
The Purchaser shall have no claim for damages based on Defects. This shall not apply to the extent that a Defect has been fraudulently concealed, the guaranteed characteristics are not complied with, in the case of loss of life, bodily injury or damage to health, and/or intentionally or grossly negligent breach of contract on the of the Supplier. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser. Any other or additional claims of the Purchaser exceeding the claims provided for in the Article IX, based on a Defect, are excluded.
Unless otherwise agreed, the Supplier shall provide the Supplies in the country of the place of delivery only, without infringing any third-party industrial property rights and copyrights (hereinafter referred to as "IPR"). If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR by the Supplies made by the Supplier and used in conformity with the contract, the Supplier shall be liable to the Purchaser within the time period stipulated in Article IX No. 2 as follows:
a) On its own discretion and costs, the Supplier will, regarding the delivery concerned, either obtain usage rights, modify the item delivered so that proprietary rights are not being violated or exchange it for another item. II the Supplier cannot achieve this at reasonable conditions, the Purchaser is entitled to terminate the contract or to lower the price.
b) The Supplier's obligation to pay damages is determined by Article XII.
c) The Supplier's above-mentioned obligation only exists if the Purchaser promptly notified the Supplier in writing about claims raised by third parties, if the Purchaser did not recognize the claim and reserved the Supplier's rights for all defensive actions and settlement talks. The Purchaser is obliged to notify the third party that a cessation of use does not mean recognition of violations of proprietary rights (il the Purchaser ceased to use the delivery to minimize the damage or for other important reasons).
The Purchaser's claims become invalid if he or she is responsible for the violation of proprietary rights.
The Purchaser's claims are debarred if the violation of proprietary rights was caused by specific instructions of the Purchaser, because of usages of the delivery the Supplier could not anticipate or because the Purchaser modified the delivery or used it in connection with other items not delivered by the Supplier.
In case of violations of proprietary rights, the regulations of Article IX No. 4, 5 and g apply accordingly to claims of the Purchaser regulated in No. 1 a).
The regulations of Article IX apply accordingly to other Defects of title.
Any additional or other claims of the Purchaser against the Supplier and its assistants for Defects of title not regulated in Article X are excluded.
The performance of this contract is conditional upon that no hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or any embargos or other sanctions exist.
The Purchaser shall provide any information and Documents required for export, transport and import purposes.
The Purchaser is entitled to claim damages if a delivery is impossible unless however, the Supplier is not responsible for the impossibility of the delivery. However, the Purchaser's damage claim is limited to 10% of the value of that part of the delivery that could not be used as intended due to the impossibility to deliver. This limitation does not apply in case of mandatory statutory liability because of intentional or gross negligence or damage to life, body or health. This regulation does not change the burden of proof to the Purchaser's disadvantage. The Purchaser's right to withdraw from the contract is not affected.
The contract will be adjusted appropriately and in good faith if the economic significance or the content of the delivery is changed considerably by unexpected events in the meaning of Article IV No. 2 a) to c) or if these events have a considerable impact on the Purchaser's operation. The Supplier has a right to withdraw from the contract if such adjustments would be economically unreasonable. In case the Supplier intends to withdraw from the contract, the Supplier is to notify promptly the Purchaser of this fact as soon as the consequences of events become clear. This applies even if a temporary extension of the delivery term has been agreed with the Purchaser.
This contract remains valid in all remaining parts, even if some regulations are legally unenforceable. This does not apply if holding on to this contract would result in unreasonable hardship for one of the parties.
To be able to calculate delivery times and forecasts according to delivery schedules of material, Limtronik is entitled to order, as necessary, material on account of the customer as soon as the customer has accepted and ordered the project/products. This authorization includes, without limitations, additional material necessary in Limtronik's opinion, provided this can be evidenced with due consideration of any minimum requirements by Suppliers for orders and/or minimum order quantities of Suppliers, dimensions of packaging and the most economical order quantities. Limtronik is entitled and authorized, without restricting the before-mentioned regulations, to order necessary material at any time, provided the delivery schedule for this material is longer in general than orders, liabilities and/or customer orders used in the forecast. Provided such a list has been provided, Limtronik will procure material only according to the customer's list of approved Suppliers. Limtronik will request the customer's prior, written approval for any other Supplier. Approval is deemed to have been given if the customer does not respond to a request within 14 days.
According to this contract and to the extent of contradictions between regulations of this contract and conditions negotiated between customer and his or her Suppliers, Limtronik is released from any liability regarding the customer. The customer bears the main responsibility to instruct his or her Supplier to provide services in agreement with this contract (including solving any quality problems) and to compensate Limtronik for expenses reasonably incurred in connection with quality tests of material, if the customer instructs Limtronik to purchase material according to contracts negotiated by the customer.
Material provided is delivered by the customer free of charge to Limtronik no later than one week prior to the beginning of manufacturing. Limtronik usually triggers orders of material provided. Otherwise the customer is to monitor the timely delivery if this is not the case. The material provided is added to Limtronik's warehouse, specifically labelled and managed such as Limtronik's own material and subject to inventory. Additional customer-ordered inventories are separately billed. The manufacturing costs include expenses for warehousing and handling material provided.
The material provided must be of the same quality as material purchased by Limtronik (delivery quantities, schedules, packaging etc.). The customer is separately billed for additional expenses caused by improper material, particularly if packaging is not suitable for machine processing, insufficient quality or delayed delivery. Excess quantities required because of technical procedures used must be observed and taken into account. Limtronik cannot guarantee a certain delivery quantity if this is not observed.
The total quantity of any part of any material necessary for the production of customer products (which is held by Limtronik or that has been ordered or manufactured or bought with mutual agreement) is at any point in time greater than the sum of: (I) the volume of such material used up by Limtronik in the prior thirty (30) days in manufacturing products for the customer according to this contract and (11) the volume of such material that will be used up by Limtronik (according to the forecast) in manufacturing products for the customer in the next fifteen (15) days, such quantities of material will be considered "excess material".
Limtronik will notify the customer on or before the fifteenth (15th) day of every month of the volume and value of excess material available at the end of the previous month. The customer is to provide the following notice to Limtronik within sixty (60) days after receipt of such a notification of Limtronik (date stamp of receipt of notice): (I) an order for the delivery of warehoused excess material (according to the definition below) and (II) a reservation of warehousing fees ("reservation of warehousing fees") at two (2) percent of the average value of excess material concerned per month, calculated from the day of receipt of the notice until that day the customer issues a request for the delivery of warehoused material and the reservation of warehousing fees. Unless agreed otherwise in writing, the average value is calculated based on the inventory at the end of the month.
The customer will inform Limtronik's purchasing department of any material bought by the customer from Limtronik that still is suitable for the manufacturing of customer products. The intention for Limtronik's purchasing department is to buy material (preferably) from the customer rather than on the free market. The purchase price of such material is the cost of the material as used in the currently valid calculation.
Excess material is considered material that is no longer needed for the manufacturing of products in the next six (6) months (or that no longer is suitable for the manufacturing of products due to time that has passed). This applies to the manufacturing of complete or partial products, rescheduling or cancellations of orders or the reduction of quantities specified in a forecast or the termination of this contract or parts thereof or any other event, including changes in specifications or construction modifications, resulting in material bought by Limtronik or orders placed with Suppliers of materials no longer needed or usable as described above. The customer will issue an order for the delivery of warehoused material to Limtronik concerning obsolete material within seven (7) working days after receipt of such a notification. In case of excess material, the order price is the price as expressed by the current costs of such products. In case of obsolete material, the order price is the price paid by Limtronik for such outdated material specified in the product-price determination. Any excess or obsolete material bought by the customer from Limtronik by way of an order to deliver warehoused material is considered a part of the inventory owned by the customer. The order for the delivery of warehoused material should compensate lower prices, including deficits, resulting from the sale of material at lower prices than originally paid by Limtronik for such material as well as costs in relation to restocking and fees for returning goods.
If at any time any material becomes surplus or outdated, Limtronik will apply appropriate efforts to (a) cancel outstanding orders for material, (b) return material to the original Supplier or return or sell it at conditions determined at the discretion of Limtronik and, (c) to use excess material and material deliveries that cannot be cancelled for the manufacturing of other products.
The attempts to lower the costs should continue for a period of up to fourteen (14) days. Any invoices relating to surplus or outdated material are to be paid to Limtronik in Euro (immediately and without deductions) within seven (7) days of invoice date
If a customer cancels an order or apart thereof:
Limtronik may bill the customer for costs demonstrably caused to Limtronik because the customer rescheduled agreed-upon fixed schedules.
Limtronik must be consulted in advance regarding postponements. At the most, three months of postponements are permissible. II a postponement is greater than three months, a postponement will be treated the same as a cancellation.
Within its own discretion, Limtronik may consider an order cancelled by the customer (or the relevant part thereof) if a customer refuses or misses to accept a delivery from Limtronik made according to an order or this contract