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Terms and Conditions

Terms and Conditions of Sale and Delivery

 

I. Applicable terms and conditions

The legal relations between BPW Bergische Ach-sen Kommanditgesellschaft as the supplier (here-inafter referred to as "BPW") and the Customer are governed by these terms and conditions and any other additional agreements. Amendments and supplements to these terms and conditions must be made in writing, including waivers to the written form requirement. For the purpose of these terms and conditions, the written form requirement is equally met when carried out by electronic data transmission. Other general terms and conditions do not apply either, even if these conditions have not been expressly contradicted in any individual cases.

 

II. Orders

1. All delivery contracts (orders and acceptance) and call-off orders, along with any amendments and supplements to the same, must be made in writing. In the event that the written form require-ment is not fulfilled, then the contract becomes valid at the latest when the order is executed by BPW (implied acceptance of order).

2. In the case that BPW fails to accept the order or the call-off order within three weeks after receipt then the customer has the right to cancel the order.

3. BPW reserves the right to make design changes to the product, as long as these changes do not affect its use and installation.

 

III. Payment

Payment shall be made according to the agreed conditions and Incoterms® 2010.

 

IV. Notice of Defects

The Customer shall comply with the requirement to examine and notify non-conformity, i.e. to inspect the goods immediately after receipt and to notify BPW in writing immediately of any detected de-fects. Other defects of the delivery must be report-ed immediately to BPW in writing as soon as they are identified in the normal course of business.

 

V. Non-disclosure

1. The contractual parties are obliged to treat any commercial or technical information (in any form whatsoever), which is not public knowledge and has become known to them as a result of the busi-ness relationship as confidential.

2. In particular, drawings, sketches, models, sam-ples, tools, test reports, measurement data, proce-dures, processes, programmes, software, parts lists, price and quantity agreements may not be disclosed to any unauthorised third parties or made available in any other way. The aforesaid remains the property of BPW and the Customer respectively. The copying of such information is permitted only within the framework of operational requirements and the copyright stipulations.

3. Sub-suppliers have to be bound accordingly.

4. In case of a breach of confidentiality obligations the other contractual party is entitled to claim for the resulting damages.

VI. Dates of delivery

Agreed dates of delivery or deadlines are not bind-ing, unless otherwise agreed in writing.

 

VII. Delay of delivery

1. Subject to the compliance with the legal prereq-uisites, BPW is obliged to compensate the Cus-tomer for damages caused by delay of delivery in the event of wilful intent or gross negligence. .

2. In the case of slight negligence, the damages payable are limited to additional freight costs and refitting costs. Compensation for loss of profit and damages caused by disruption of operations, in-cluding possible contractual penalties to be paid by the Customer, are excluded.

3. In the event that the Customer has unsuccess-fully given BPW a reasonable deadline to fulfil de-livery obligations or has lost interest in the delivery, then the compensation for damages is limited to the amount of additional expenditure incurred in making covering purchases.

 

VIII. Force majeure

Force majeure, strikes, unrest, governmental pro-visions (factory closures, factory restrictions, with-drawal or restriction of factory permits, etc.) and other unforeseeable, unavoidable and serious events release the contractual partners from their duty to perform their obligations for the period of the disruption and its effects. This also applies if these events occur at a time when the respective contractual party is in delay. The contractual par-ties are obliged to provide all required information within reason and without delay as far as possible to adapt their obligations to the changed circum-stances in good faith.

 

IX. Quality and documentation

1. If BPW after careful testing cannot assure the Customer that the possibility of adverse effects can be excluded, BPW shall inform the Customer in advance before making any changes to the prod-uct, e.g. in terms of the materials or manufacturing process, enabling the Customer to ascertain whether the planned change will have any adverse GT Sale Version of: July 2019 Page 2 of 4 effects.
With regard to initial sample inspections, volume no. 2 of the German Association of the Automotive Industry (VDA) report, "Ensuring Quality of Supply, production process and product approval PPF", in the latest version is applicable.

2. In the event that BPW and the Customer have not specified the type and scope of these inspec-tions and the testing equipment and methods to be used, the Customer shall, upon BPW's request, be prepared within the range of his expertise, experience and capabilities to discuss the testing proce-dure with BPW in order to determine the respec-tively required state of the testing technology. Moreover, the Customer must inform BPW of all relevant safety legislation.

3. With respect to the documentation and archiving of quality requirements (including special features), VDA volume no. 1 "Documentation and Archiving" in the latest version is applicable.

4. Insofar as the authorities that are responsible for vehicle safety, emissions standards etc. demand access to the Customer's production processes and test reports in order to ensure that certain standards are met, BPW undertakes to give all reasonable assistance upon the Customer's re-quest.

X. Liability for defects

1. In the event of the delivery of defective goods, the Customer may demand the following, if the respective legal requirements and the require-ments listed below have been met, and provided no other agreements have been made:

a) Before start of production (processing or fitting) the Customer shall, in the first instance, give BPW the opportunity to sort out, repair or replace the defective goods. In the event that BPW is unable to do so or if rectification or replacement is unac-ceptable for the Customer, then the Customer may terminate the contract without notice. In urgent cases the Customer may, with the agreement of BPW, rectify the defect himself or have it rectified by a third party. Any costs arising hereof have to be borne by BPW as agreed before. In the event that the same goods are repeatedly supplied in a defective condition, then, after issuing a written notification, the Customer is entitled to withdraw the contract with respect to the goods not yet sup-plied.
b) If the defect is discovered only after production, despite compliance with the obligation under the terms of Section IV (Notice of Defects), the Cus-tomer can claim in accordance with § 439 Sections 1, 4 and 5 BGB (German Civil Code) and as de-scribed in a) rectification or replacement and addi-tional transport costs incurred for this rectification or replacement (excluding towing charges) and also dismantling and assembly costs (labour costs, material costs as far as these are agreed) or re-duce the purchase price.
c) In the event of a culpable breach of obligation over and above the supply of defective goods (e.g. duty to notify, advise or examine), the Customer may demand compensation according to Section XI for consequential damages and also for conse-quential damages reimbursed by the Customer to his customer in accordance with the law. Conse-quential damages are damages which the Cus-tomer has suffered on other legally protected property as a result of the delivery of defective goods.
d) The Customer is entitled for further claims re-garding expenses and damages arising from the delivery of defective goods only when this has been agreed beforehand. For any new agreements made, Section XVI, 1 must be observed.

2. The parts to be replaced shall be made availa-ble by the Customer to BPW immediately upon request and at BPW's expense or properly stored until inspection. In the event of costs being borne, BPW may request that the defective goods be de-stroyed.

3. Claims pertaining to liability for defects will ex-pire 12 months after delivery. In the event of recti-fication of defects or replacement delivery the war-ranty period does not commence anew.

4. Claims are excluded insofar as the damages can be attributed to violation or non-observance of the latest operating, maintenance and installation instructions and other technical documentation that is available also on the internet at www.bpw.de. Unsuitable or improper use, incorrect or careless handling and normal wear-and-tear, or changes to the delivered goods made by the Customer or a third party have the same effect.

5. In the event of defective goods delivered, the Customer's claims under the law of the Product Liability Act or of torts remain unaffected by this Section X. Guarantees of quality and durability must be expressly defined as such in detail and in writing.

XI. Liability

In the absence of any other liability provision within these terms and conditions, BPW is liable for com-pensation for damages incurred by the Customer either directly or indirectly as a result of legal rea-sons caused by BPW in the following cases only:

1. BPW shall be liable for wilful intent or gross neg-ligence (of vicarious agents as well) according to the applicable law. The same does apply in cases of damages caused as a result of slight negligent injury to life, body or health. In case of damage to property and financial loss caused as a result of slight negligence BPW and its vicarious agents will only be liable provided an infringement of essential contractual obligations is involved. Essential con- GT Sale Version of: July 2019 Page 3 of 4 tractual obligations are those of which the fulfil-ment makes proper performance of the Agreement possible at all and upon compliance with which the Customer regularly may depend. In these cases, the liability of BPW and its vicarious agents is lim-ited to the damages foreseeable at the time of conclusion of the Agreement and typical for the Agreement.

2. Claims by the Customer are excluded insofar as the damages can be attributed to violation or non-observance of the latest operating, maintenance and installation instructions and other technical documentation that is available also on the internet at www.bpw.de. Unsuitable or improper use, incor-rect or negligent handling, normal wear-and-tear or faulty repair of goods have the same effect.

3. Should the Customer intend to claim against BPW in accordance with the aforementioned pro-visions, he shall immediately and comprehensively inform and consult BPW. He must give BPW the opportunity to investigate the damages incurred. The contractual parties shall agree any steps to be taken, in particular settlement negotiations. If BPW instigates a recall, the Customer undertakes to support BPW by all means possible.

 

XII. Intellectual Property Rights

1. BPW shall be liable for claims concerning viola-tion of intellectual property rights resulting from contractual use of the supplied goods, if at least one of the family of intellectual property rights is publicly granted by the European Patent Office or in one of the following states: the Federal Republic of Germany, France or Great Britain. The Custom-er undertakes to use the supplied goods so as to avoid an infringement of any third party rights.

2. BPW is not liable insofar as BPW has manufac-tured the supplied goods in accordance with draw-ings, models or similar other descriptions or infor-mation provided by the Customer. In this event the Customer indemnifies BPW against all claims from third parties.

3. The contractual parties agree to give each other the opportunity to counteract any claims resulting of any alleged contraventions.

4. The principles contained in Section XI, 1 – 2 regarding the limitation of liability shall apply ac-cordingly.

 

XIII. Use of the Customer's means of produc-tion and confidential information provided by the Customer

Models, matrices, patterns, samples, tools and other means of production, as well as confidential information provided to BPW by the Customer or fully paid by him, may be used for deliveries to third parties only with the prior written consent of the Customer.

 

XIV. Retention of title

1. BPW retains ownership of all goods supplied until all claims resulting from the business relation-ship with the Customer have been settled in full; in this regard all individual deliveries shall be consid-ered as components of one continuing delivery transaction. The retention of title shall act as secu-rity against any amounts outstanding.

2. In the event that moveable objects are joined together as defined by § 947 BGB (German Civil Code) and if one of these objects is to be consid-ered the main object as defined by § 947 Sect. 2 BGB (German Civil Code), then the Customer as-signs to BPW – insofar as the main object is not already the object(s) delivered by BPW - a co-ownership share in accordance with §§ 929 s. 1, 930 BGB (German Civil Code), in proportion to the value of the object(s) provided by BPW at the time of the joining, and grants BPW indirect possession in accordance with § 868 BGB (German Civil Code). Clause 1 above shall apply.

3. In the event that the Customer sells the deliv-ered goods in accordance with the terms of the contract, he herewith assigns to BPW all his claims against his customer (inclusive of VAT) including any ancillary rights until all of BPW's claims have been settled in full, irrespective of whether the de-livered goods have been sold with or without pro-cessing, transformation, joining, mixing or blending as defined in clause 2 above.
If there is a reasonable issue - especially in the event that the Customer does not meet his pay-ment obligations - the Customer is obliged upon BPW's request to inform third parties of the as-signment and to provide BPW with all the neces-sary information and documentation required for the assertion of his rights.
BPW shall release securities held insofar as their total value exceeds the claims being secured by more than 20%. BPW shall decide which securities are to be released.


XV. Transfer of risk, acceptance and default in acceptance

1. The transfer of risk is determined according to Incoterms® 2010 (or the current valid version thereof) agreed upon by BPW and the Customer.

2. The customer may not refuse acceptance on the grounds of a minor defect.

3. In the event that shipment is delayed or is not effected due to circumstances which are beyond BPW's responsibility, the risk is transferred to the Customer at the point in time at which he has been notified that the goods are ready for shipment or acceptance.

4. The obligation to sign an insurance coverage is determined according to Incoterms® 2010 (or the current valid version thereof) as agreed upon by BPW and the Customer.
GT Sale Version of: July 2019 Page 4 of 4

5. Partial deliveries are permitted - provided this is reasonable for the Customer.

6. In the event that BPW withdraws from the con-tract due to reasons attributable to the Customer - especially due to default in acceptance - BPW can claim payment of damages in lieu of performance to a value of 25% of the agreed net invoice amount. The Customer is expressly permitted to provide evidence that no damages were incurred or that they were significantly lower than the flat rate of compensation.
BPW expressively reserves the right to make addi-tional claims, taking into account the already paid flat rate of compensation as the minimum amount of the claim.

 

XVI. General Terms

1. In determining the level of damages to be paid by BPW in accordance with Sections VII, X, XI and XII, consideration shall be given in BPW's favour to BPW's economic circumstances, the nature, scope and duration of the business relationship, any possible contribution to the cause and/or fault of the Customer in accordance with § 254 BGB (German Civil Code) and any especially unfavourable assembly situation of the part supplied. In particular the compensation, costs and expenditure to be borne by BPW should be in reasonable proportion to the value of the part delivered.

2. In the event that one of the contractual parties ceases payment or if insolvency proceedings or non-nudicial settlement proceedings against said party's assets are applied for, the other party has the right to withdraw from the yet unfulfilled part of the contract.

3. Should any provision of these terms and conditions or of further agreements be or become ineffective, the validity of the rest of the contract shall not be affected. The parties are obliged to replace the ineffective provision with one which is as close as possible to the original one.

4. Unless otherwise agreed, the law of the Federal Republic of Germany shall apply.

The application of the United Nations Convention on Contracts for the International Sale of Goods dated 11.4.1980 is excluded. In principle the contractual language is English.

5. The place of performance for delivery is determined according to Incoterms® 2010 (or the current valid version thereof) agreed upon by BPW and the Customer. The place of performance for payment is Wiehl, Germany.

6. The court of jurisdiction is Cologne, Germany.

7. In accordance with the Data Protection Act it is hereby notified that BPW stores data relating to the Customer for use within the context of the coop-eration.

 

As at June 2019

 

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