General Terms and Conditions of Sale, Delivery and Payment
Section 1 Scope
(1) The following terms and conditions exclusively apply to all our deliveries and services (including ancillary services such as recommendations and consultancy services). We shall not recognise deviating or conflicting terms and conditions unless we have expressly agreed to them in writing. (2) These terms and conditions shall also apply to all future transactions between the parties, as well as in the event that we supply goods in the knowledge of deviating or contradictory terms and conditions. (3) These terms and conditions apply only to business persons, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).
Section 2 Quotations
(1) Our quotations are subject to change unless confirmed by us in writing. Delivery contracts and all other agreements (including ancillary agreements), as well as declarations by our representatives, shall only become legally binding upon our written confirmation. (2) Insofar as a customer's written, verbal or telephone order constitutes a quotation in accordance with Section 145 of the German Civil Code, said customer shall remain bound by it for a period of two weeks. (3) Our business mail created by computer systems (such as order confirmations, invoices, credit notes, account statements, payment reminders) are also legally binding without a signature.
Section 3 Prices
(1) Our prices do not include statutory value added tax. They apply ex works or ex warehouse (EXW) Steinheim/Murr in accordance with the INCOTERMS 2010. (2) If changes occur with regard to our prices or their basis up until the delivery date, we reserve the right to adjust our prices accordingly. However, this only applies to delivery times of more than four months and to price adjustments of up to 10%. A new price agreement shall be required in the case of price adjustments exceeding this. If such an agreement is not reached within 14 days following receipt of a corresponding offer made by us, we reserve the right to withdraw from the contract by giving written notice. (3) Our list prices valid on the day of delivery shall apply in the case of orders for which no prices have been agreed. (4) Confirmed prices are only valid upon acceptance of the confirmed quantities. Partial deliveries shall be invoiced separately unless expressly agreed otherwise.
Section 4 Delivery
(1) Delivery is conditional upon the timely and proper fulfilment of the customer's obligations. The defence of non-performance of the contract remains reserved. In the event of delayed acceptance or other culpable breach of duties to cooperate on the part of the customer, we shall be entitled to compensation for the resulting damage, including any additional expenses. We reserve the right to assert further claims. In this case, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time of delayed acceptance or other breach of duties to cooperate. (2) We unrestrictedly reserve all rights to drawings and other product documents supplied with the goods. Drawings and other product documents supplied with the goods may only be made accessible to third parties with the prior consent of FLEX and shall be returned to FLEX without delay upon request if a contractual relationship is not established or subsequently ceases to exist.
Section 5 Delivery time and obstacles to delivery
(1) Our delivery time information is non-binding. Delivery periods shall commence on the date of our order confirmation, but not before clarification of all details of the delivery and all other preconditions to be created by the customer for the proper execution of the contract. Early deliveries and part-deliveries are permitted. The day of delivery shall be the day of dispatch ex works or ex warehouse (EXW in accordance with INCOTERMS 2010) Steinheim/Murr. (2) If the customer violates his obligations to cooperate (e.g. by not accepting or refusing to accept the goods in due time), we shall be entitled - without prejudice to the rights arising from Section 4 Para. 1 - to deliver the goods or to withdraw from the part of the delivery contract that has not yet been fulfilled after setting a grace period to no avail. If the goods are not accepted, not accepted on time or not accepted in full, we shall be entitled to store the goods at the customer's expense. (3) The delivery of goods which we do not manufacture ourselves shall be subject to timely and complete self-delivery, unless we are responsible for late or incomplete self-delivery. (4) Force majeure events shall result in a reasonable extension of the delivery period and entitle us to withdraw from the contract in whole or in part. Force majeure means fire, war, strike, lockout, operational disruptions or other unforeseen circumstances for which we are not responsible and which make delivery significantly more difficult or impossible for us. This shall also apply if the aforementioned circumstances occur during a delay in delivery that has already occurred or that occurs at one of our subcontractors. In such cases, the customer shall not be entitled to withdraw from the contract or claim for damages.
Section 6 Transfer of risk
The risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon handover of the goods ex works or ex warehouse (EXW in accordance with INCOTERMS 2010) in Steinheim/Murr. In the event that delivery to the customer is agreed, the risk shall be transferred at the time of dispatch of the goods.
Section 7 Terms of payment
(1) Our invoices shall be paid within 30 days of the invoice date without deductions. Payments shall only be deemed to have been made on the day on which we can dispose of the amount. (2) Bills of exchange and cheques shall only be accepted on the basis of an express agreement and only on account of payment and subject to our acceptance in the individual case. There is no entitlement to a cash discount for payment by bill of exchange. Any discount and other expenses are to be borne by the customer and are due for payment immediately. (3) All payments shall always be credited first against our oldest claims, irrespective of any statements to the contrary by the customer. (4) In the event of a delay in payment, we shall charge interest on arrears at the statutory rate. We reserve the right to assert further claims for damage caused by delay. In the event of default in payment, dishonour of cheques or bills of exchange, cessation of payments, initiation of proceedings for the settlement of debts, non-compliance with the terms of payment or the existence of circumstances which are likely to reduce the creditworthiness of the customer, all our claims - even in the event of a deferment of payment - shall become due immediately. In addition, we shall be entitled to make outstanding deliveries only against cash payment in advance or to withdraw from the contract after setting a reasonable period of grace and to demand damages instead of performance.(5) The customer may only offset counterclaims that are recognised by us, that are undisputed or that have been finally determined by a court of law.
Section 8 Reservation of ownership
(1) The goods shall remain our property until all payments have been received in full. In the event of breach of contract by the customer, including default of payment, we shall be entitled to take back the goods. (2) The customer shall treat the goods with care, insure them appropriately and, if necessary, maintain them. (3) Insofar as the purchase price has not been paid in full, the customer must inform us immediately in writing if the goods are encumbered with third-party rights or exposed to other third-party interventions. (4) The customer is entitled to resell the goods subject to retention of title in the ordinary course of business.. In this case however, the customer already now assigns to us all claims from such a resale, irrespective of whether this takes place before or after any processing of the goods delivered under retention of title. Notwithstanding our authority to collect the claim ourselves, the customer shall remain authorised to collect the claim even after the assignment. In this context, we undertake not to collect the claim as long and insofar as the customer meets his payment obligations, no application for the opening of insolvency or similar proceedings has been filed and there is no cessation of payments. (5) Insofar as the aforementioned securities exceed the claims to be secured by more than 10%, we shall be obliged to release the securities at our discretion at the customer's request.
Section 9 Return
(1) The return of goods from our deliveries is excluded unless otherwise agreed in writing or we are legally obliged to accept returns. (2) In the event of an agreed return, we shall charge a processing fee of 20% of the net sales price, but at least EUR 50.00. Should we incur higher expenses in an individual case, we reserve the right to charge for them.
Section 10 Warranty
(1) The prerequisite for any warranty rights of the customer is the latter's proper fulfilment of all inspection and complaint obligations owed pursuant to Section 377 of the HGB (German Commercial Code). (2) Statutory warranty claims can only be asserted within 12 months after the transfer of risk.(3) In the event of defects in the goods, the customer shall be entitled to subsequent performance in the form of rectification of the defect or delivery of an item free of defects.. If the supplementary performance fails, the customer shall be entitled to reduce the purchase price or to withdraw from the contract.
Section 11 Liability
(1) In the event of intent or gross negligence on our part or on the part of our representatives or vicarious agents, we shall be liable in accordance with the statutory provisions, as well as in the event of culpable breach of material contractual obligations, whereby our liability for damages in this case shall be limited to the foreseeable, typically occurring damage.. Material contractual obligations are obligations the fulfilment of which enables proper performance of the contract and the fulfilment of which the customer can therefore rely on, or obligations the breach of which jeopardises the achievement of the purpose of the contract. (2) Liability for culpable injury to life, limb or health and liability under the Product Liability Act shall remain unaffected. (3) Our liability is excluded unless expressly regulated otherwise above.
Section 12 Applicable law, place of jurisdiction, severability clause
(1) All legal relations between us and the customer shall be governed exclusively by German law, to the exclusion of the conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods (CISG). (2) The place of jurisdiction is Steinheim. However, we shall be free to bring an action before the court that has jurisdiction for the customer's registered office. (3) Should any provision of these General Terms and Conditions of Sale, Delivery and Payment or any provision within the scope of other agreements between us and the customer be or become invalid or unenforceable, this shall not affect the validity of all other provisions or agreements.