All offers are non-binding unless a period of commitment is explicitly specified in the offer. Orders shall only become binding after being confirmed by Hunold und Knoop.
For on-going business relationships, these Terms and Conditions also apply to future business transactions with no explicit reference to the Terms and Conditions, insofar as they have been received by the buyer in connection with an order previously confirmed by the supplier or the buyer was able to and can reasonably obtain information about these Terms and Conditions in another way.
These Terms and Conditions apply only if the buyer is a company [Unternehmer] within the meaning of § 14 BGB (German Civil Code).
Terms and conditions of the buyer shall not apply unless they are expressly accepted by the supplier.
Should individual provisions be or become ineffective, this shall not affect the remaining provisions.
Changes, amendments and additional agreements are only effective if agreed in writing. This also applies to the cancellation of this written form requirement.
Prices apply ex works unless expressly agreed otherwise and do not include freight, customs, import duties or packaging. VAT is added at the statutory rate.
If the decisive cost factors change significantly after the offer has been made or after the order confirmation until delivery, the suppler and the buyer shall come to an agreement regarding an adjustment of the prices and cost portion for moulds. A significant change exists if cost factors increase by 10%.
If it has been agreed that the price depends on the weight of parts, the final price is calculated on the basis of the weight of the released initial samples.
The supplier is not required to offer previous prices in new orders (subsequent orders). If the supplier does not intend to produce the order at the old prices, it is required to come to an agreement regarding the price in advance.
III. Obligation to accept deliveries
Delivery periods shall commence upon receipt of all documents required for the execution of the order, payments and the timely provision of materials, if these have been agreed. Upon notification of readiness for dispatch, the delivery deadline shall be regarded as having been met if the shipment is/becomes delayed or unavailable and this is not the fault of the supplier.
If an agreed delivery deadline is not met and this is the fault of the supplier, the buyer is entitled to demand compensation for the delay or terminate the contract, under exclusion of further claims, following a reasonable grace period, if the supplier has not acted with gross negligence or wilful misconduct. Compensation is limited to a maximum of 5% of the part of the delivery which was not been made according to contract. Withdrawal from the contract is excluded if the buyer delays acceptance. The buyer has the right to prove that greater damages have been incurred. The supplier has the right to prove that lower damages were incurred. Even in cases of fixed damages, a reasonable deadline is required.
Partial deliveries and reasonable deviations from the quantities ordered up to plus/minus 10% are permissible.
For call orders with no agreement regarding the duration, production quantities or delivery schedules, the supplier can request a binding specification of these details no later than three months after the order confirmation. If the buyer does fulfil this request within three weeks, the supplier is entitled to set a two-week grace period and, at the end of this period, withdraw from the contract and/or claim compensation.
If the buyer does not fulfil its obligations, the supplier is, irrespective of any other rights, not bound to the regulations regarding self-help sale and is in fact entitled to sell the delivered goods by private contract after notifying the buyer in advance.
Events of force majeure entitle the supplier to postpone delivery for the duration of the hindrance and to specify a reasonable extension period, or fully or partially withdraw from the contract due to the as yet unfulfilled part of the contract. Force majeure includes strikes, lockouts or unforeseeable and unavoidable situations, such as operational disruptions which make it impossible for the supplier to make a timely delivery despite reasonable efforts; the supplier is required to provide evidence that this is the case. This applies even if the aforementioned hindrances occur during a delay or are associated with a sub-supplier. The buyer is entitled to request that the supplier declare, within two weeks, whether it intends to withdraw from the contract or deliver the goods within a reasonable period. If the supplier fails to do so, the buyer is entitled to withdraw from the unfulfilled part of the contract. The supplier shall immediately notify the buyer if a case of force majeure as defined in Clause 1 has occurred. The supplier shall keep damage to a minimum for the buyer, if necessary by releasing the moulds for the duration of the hindrance.
IV. Packaging, shipping, transfer of risk, and acceptance of delivery
Unless agreed otherwise, the supplier shall select the packaging, type of transport and dispatch.
The risk of accidental loss also applies in the case of carriage free delivery with notification of dispatch if this notification is not sent to the buyer when the goods leave the delivering plant. IX.7 of these Terms and Conditions apply in the case of moulds.
At the written request of the buyer, the goods shall be insured against the specified risks at the expense of the buyer.
V. Retention of title
Deliveries remain the property of the supplier until the fulfilment of all claims of the supplier against the buyer, even if the purchase price has been paid for specifically described claims. In the case of a current account, the retained title to the delivered goods (reserved goods) shall serve as a security for the outstanding balance owed to the supplier. If the payment triggers an obligation for the buyer associated with a bill of exchange, the right of ownership shall not expire until the bill of exchange has been paid by the buyer as drawee.
Any processing or transformation by the buyer shall take place by order of the supplier without the acquisition of ownership pursuant to § 950 BGB; the supplier shall become co-owner of the products created in this way according to the ratio of the net invoice value of the goods to be processed or transformed, whereby the product shall serve as reserved goods to secure the claims of the supplier in accordance with Clause 1.
When processing (combining / mixing) the goods with other goods not belonging to the buyer, the provisions of §§ 947 and 948 BGB shall apply, with the result that the supplier's co-ownership of the new product shall now be regarded as reserved goods in the sense of these conditions.
The buyer is only entitled to resell the reserved goods within the ordinary course of business and under the condition that it has also agreed reservation of title with its customers in accordance with Clauses 1 to 3. The buyer is not entitled to any other dispositions of the reserved goods, in particular pledging and security transfers of title.
In the event of a resale, the buyer hereby transfers all entitlements to payments owed by its own customers resulting from the resale and other valid claims against its customers with all ancillary rights, until the fulfilment of all of the supplier's claims. Upon request by the supplier, the buyer is required to immediately provide all information and documents necessary to assert the supplier's rights against the customers of the buyer.
If the reserved goods are resold by the buyer after processing in accordance with Clauses 2 and/or 3 with other goods not belonging to the supplier, the transfer of the purchase price pursuant to Clause 5 applies only to the invoiced value of the supplier's reserved goods.
If the value of the collateral available to the supplier exceeds the supplier's overall claims by more than 10%, the supplier shall be required to release securities chosen by the buyer upon request by the buyer.
The supplier is to be immediately notified of the attachment or seizure of the goods by a third party. Intervention costs incurred as a result shall in all cases be charged to the buyer, unless covered by third parties.
If the supplier asserts its reservation of title by taking back the reserved goods in accordance with the abovementioned provisions, the supplier is entitled to sell the goods privately or at auction. Assertion of the reservation of title and in particular s request to release the goods constitutes a withdrawal from the contract. The reserved goods shall be reclaimed at the revenues achieved, but no more than at the agreed delivery prices. Further claims for damages, including lost profits, remain reserved.
Section IX of these Terms and Conditions applies to matters of ownership relating to moulds.
VI. Liability for defects
The initial samples, which the supplier can provide to the buyer for examination upon request, are decisive for the quality and design of the products. The reference to technical standards is used in the specification and shall not be construed as a guarantee of quality.
If the supplier has provided the buyer with advice beyond his contractual services, it is only liable for the functionality and suitability of the goods if express prior written assurances have been submitted.
Defects are to be reported immediately in writing. In the event of hidden defects, they are to be reported immediately after their discovery. In both cases, the right to claim damages for defects shall become time-barred twelve months after the transfer of risk, unless agreed otherwise. Insofar as longer deadlines are required by law pursuant to § 438 para. 1 no. 2 BGB, 479 para. 1 BGB and § 634a para. 1 no. 2 BGB, these shall apply.
In the case of a valid notification of defects - whereby the initial sample released in writing by the buyer determines the expected quality and design - the supplier is required to provide supplementary performance. If this obligation is not fulfilled within a reasonable period or if the supplementary performance fails despite a repeated attempt, the buyer is entitled to reduce the purchase price or withdraw from the contract. Further claims, in particular the reimbursement of expenses or claims for damages for incidental or consequential damages exist only within the scope of the provisions in VII. Replaced parts are to be returned freight collect if the supplier so requests.
The warranty period is one year for new or newly manufactured items. Warranty is excluded for second-hand goods.
Unauthorised reworking and improper handling of the goods shall result in the loss of all warranty claims. The buyer is only entitled to demand repair the goods and demand compensation for reasonable costs after consulting the supplier in advance, in order to avoid unreasonably high damages or if the rectification of the defects by the supplier is delayed.
Wear and tear caused by contractual use shall not form the basis for any warranty claims.
Recourse entitlements pursuant to § § 478, 479 BGB only exist insofar as use by the consumer was justified and apply only within the legal scope, but not for settlements on an ex-gratia basis agreed upon with the supplier and are subject to the party entitled to recourse observing its own obligations, in particular the duty to report defects.
VII. General liability limitations
In all cases where the supplier is required to pay compensation for damages or expenses in a departure from the abovementioned conditions on the basis of contractual or legal entitlements, the supplier is only liable if they or their agents have acted with intent or gross negligence or have caused injury to life, limb or health. This does not affect the liability regardless of negligence or fault pursuant to the Product Liability Act (Produkthaftungsgesetz) or the liability for the fulfilment of a quality guarantee. This does not affect liability for the culpable breach of essential contractual obligations.
VIII. Payment conditions
All payments must be made in € (EURO) exclusively to the supplier.
Unless agreed otherwise, the purchase price for deliveries is payable with a 2% discount within 10 days after receipt of the invoice or in full within 30 days. In all cases, discounts are subject to the settlement of all previous outstanding and undisputed invoices.
The supplier is entitled to require a reasonable advance payment and invoice this amount.
Contrary to the provisions of Section VIII.2, tool costs are payable with no discount, whereby 1/3 of the amount is be paid when placing the order and 2/3 of the amount is to be paid within 30 days after presentation of the sample. Subsequent payments relating to proportionate tooling costs for the acquisition of the mould (see Section IX.6) are due immediately and in full.
No discount shall be granted for any payments made by bill of exchange or cheque.
When the agreed payment date has been exceeded, interest shall be charged at the statutory interest rate of 8 percentage points above the respective base rate, unless the supplier provides evidence of greater damages.
The supplier reserves the right to reject cheques and bills of exchange. Cheques and re-discountable bills of exchange shall only be accepted in lieu of performance, all associated costs shall be covered by the buyer.
The buyer is only entitled to offset or assert a right of reservation if their claims are undisputed or legally established.
On-going non-compliance with payment conditions or circumstances which justify serious doubts about the creditworthiness of the buyer shall result in all of the supplier's claims becoming due immediately. In addition, the supplier is in this case entitled to demand advance payments for any outstanding deliveries and withdraw from the contract after the expiry of a reasonable grace period.
IX. Moulds (tools)
The price of moulds also includes the costs for a single sample, but not the costs for testing and processing devices and alterations requested by the buyer. Costs for further samples for which the supplier is responsible shall be covered by the supplier.
Unless expressly agreed otherwise, the supplier is and remains the owner of the moulds produced by the supplier itself or a contracted third party. This applies even if proportionate tool costs are specified in the invoice.
Moulds shall only be used for orders placed by the buyer if the contract has not been completely fulfilled by the supplier and the buyer meets its payment and purchase obligations.
The supplier is only required to provide free replacements of these moulds if these are necessary to fulfil a yield quantity which has been promised to the buyer.
The obligation of the supplier to store moulds expires two years after the last delivery of parts from the mould and following the prior notification of the buyer at the address known to the supplier from the contractual relationship.
Unless agreed otherwise, proportional tooling costs amount to 2/3 of the full tooling costs. The buyer has the right to transfer ownership of the mould by paying the difference between the paid pro rata tooling costs and the full cost. In this case, the buyer shall acquire a second-hand mould in the sense of Section VI.5 of these General Terms and Conditions. This right shall expire if the supplier is no longer obligated to keep the mould pursuant to the provisions of IX.5.
If the buyer becomes the owner of the moulds in accordance with the agreement, ownership shall be transferred to the buyer upon full payment of the purchase price. The transfer of the moulds to the buyer shall be replaced by storage on the buyer’s behalf. Regardless of the buyer's legal claim for restitution and the lifetime of the moulds, the supplier is entitled to terminate the contract for its exclusive possession. The supplier shall identify the moulds as someone else’s property and insure them at its own cost if requested by the buyer. Agreement in the sense of this Clause shall be assumed if the tool costs are listed as a full cost in the invoice. The risk of accidental destruction shall be transferred to the buyer upon issuance of the invoice. The warranty period shall also begin at this time.
For the buyer's own moulds pursuant to Paragraph 3 and/or moulds provided by the buyer on loan, the supplier's liability is limited to taking the same degree of care as with its own business with regard to storage and maintenance. Costs for maintenance and insurance are the responsibility of the buyer. The obligations of the supplier shall expire when the buyer fails to collect the moulds within a reasonable period after the order has been completed and a corresponding request has been sent. The supplier has a right of lien on the moulds in each case as long as the buyer has not fulfilled his contractual obligations in full.
X. Supplied materials
If materials are provided by the buyer, they are to be delivered in a timely manner and free of faults at its own expense and risk with an adequate quantity surcharge of 5%. The supplier is not obliged to inspect the materials provided and is entitled to assume the order is correct.
If these conditions are not fulfilled, the delivery date shall be extended. Except in cases of force majeure, the buyer shall cover the additional costs incurred as a result of production interruptions.
XI. Industrial property rights and warranty of title
If the supplier is required to deliver parts based on drawings, models, samples, or using parts supplied by the buyer, the buyer must ensure that this does not infringe the rights of third parties in the destination country of the products, the country of manufacture of the products and the country of manufacture of the mould. The supplier shall inform the buyer of any rights which it is aware of; the supplier has no inspection obligation. The buyer is required to indemnify the supplier against third-party claims and pay compensation for resulting damages. If it is prohibited from manufacturing or delivering the goods by a third party on the basis of an intellectual property right of the third party (e.g. through a warning or injunction), or if the supplier is aware of such intellectual property, the supplier is entitled to cease work until the legal situation has been clarified by the buyer and the third party. If the continuation of the contract becomes untenable for the supplier due to the delay, it is entitled to withdraw from the contract. In this case, it is entitled to claim its remuneration less any expenses saved.
Drawings and samples provided to the supplier which did not result in an order shall be returned upon request; otherwise, the supplier is entitled to destroy them three months after submission of the offer. This obligation applies to the buyer correspondingly. The party entitled to destroy the items is required to inform the contractual partner in a timely manner of its intention to destroy the items.
The supplier is entitled to copyright and any intellectual property rights, in particular, all use and exploitation rights associated with models, moulds, equipment, designs and drawings produced by the supplier or commissioned third parties.
If other warranty of title exists, Section VI. applies accordingly.
XII. Place of performance and jurisdiction
Place of performance is the location of the supplier.
Place of jurisdiction is at the discretion of the supplier, either the supplier's place of business or the buyer's headquarters and is also applicable to bills of exchange and cheque processes.
Only German law applies. The application of the United Nations Convention on Contracts for the International Sale of Goods for the Federal Republic of Germany is excluded.