Standard Terms and Conditions of Delivery and Payment of B/E Aerospace
B/E Aerospace Fischer GmbH
Status: 1st of May, 2015
§ 1 General provisions; application
- 1. Our deliveries, services and offers are provided on the basis of these standard terms and conditions, to the exclusion of all other terms or conditions, even if express reference has not been made to our standard terms and conditions during negotiations. We do not accept adverse terms or conditions notwithstanding that we may not have expressly objected to such adverse terms or conditions, nor shall we accept them by reference to correspondence with the contractual counterparty which refers to such adverse terms or conditions. Our standard terms and conditions shall apply to all contracts and future business relationships with merchants, legal entities governed by public law and special assets under public law, regardless of whether their application is expressly reaffirmed or not. Our standard terms and conditions shall be deemed to have been accepted at the latest when the goods are accepted.
- 2. Any terms or conditions, notwithstanding their being known, which differ from or are adverse or supplementary to our standard terms and conditions shall not be incorporated into the contract unless their application is expressly confirmed in writing.
§ 2 Entire agreement; formation of the contract
- 1. Our sales persons are not authorised to make subsidiary verbal agreements or to give assurances that go beyond the scope of the written contract. All provisions of this contract are documented in writing within the written contractual documentation. There are no subsidiary verbal agreements.
- 2. Delivery times are approximate only and shall not be binding unless an express undertaking has been given as to their binding nature. Details provided in respect of any item of delivery (e.g. technical data, tolerances, measurements, weight etc.) along with any illustrations thereof are for identification purposes only and shall not be binding unless we expressly confirm this to be so.
- 3. We reserve the right to make the usual technical and/or constructional modifications to any item of delivery provided that such modifications shall not have an unreasonable adverse effect on any customer and shall not affect the item of delivery’s fitness for use.
- 4. Our offers shall be of a non-binding nature until such a time as the contract is concluded.
- 5. We reserve all proprietary rights to and copyrights in constructional drawings, samples, price quotes and similar tangible or intangible business assets. They shall be treated with the utmost confidentiality at all times and shall not be made available to any third party without our consent. The contractual counterparty will be liable to us in full in accordance with statute for any breach of this provision. Use of our name by the contractual counterparty in advertising, or similar acts, is not permitted unless authorised by us in advance.
- 6. The same applies to technical explanatory notes, technical instructions, specifications, documentation, test results, test and certification documents in respect of which we reserve all exploitation rights.
- 7. In placing an order for goods the contractual counterparty shall be deemed to make a binding offer of its intention to purchase the goods. We have a right to accept the offer within two weeks of receipt of the order. Acceptance may take place either by written acceptance of the offer or by delivery of the goods to the contractual counterparty.
§ 3 Prices Standard Terms and Conditions of Delivery and Payment of B/E Aerospace Fischer GmbH Status: 1st of May, 2015 Page 2 of 8
- 1. Our prices are quoted FCA Landshut excluding shipping and packaging. Packaging will be listed and invoiced separately.
− Goods will be delivered from our factory. The customer must pay all shipping costs.
− In the event that goods are to be delivered from an external warehouse then freight charges will be calculated from time the goods leave the warehouse.
− Unless otherwise agreed all goods shipped will be uninsured.
- The minimum order amount per delivery is EUR 100. We will levy an additional small volume purchase fee of EUR 10 if the amount ordered comes to less than EUR 100.
- The term “Aircraft on Ground“ (AOG) refers to circumstances in which an aircraft is not ready to fly due to technical reasons which prevent it from flying. In the event of urgent AOG contracts having to be carried out, a surcharge of EUR 125 or 10% of the contract value (whichever is more) will be levied.
- The customer is responsible for unloading and storing the goods. Value added sales tax as due on the day on which the invoice is issued will be payable in addition to the purchase price. Unless otherwise agreed the customer shall bear the cost of any transport (or similar) insurance. If a delivery is to be made in separate instalments then each part delivery may be invoiced separately.
- 2. In the event that on any given delivery date which lies four months or more after the date on which the contract was concluded there have been changes in the basis on which prices have been set (e.g. price increases in the cost of raw materials or other materials, wages, transport or storage costs), we reserve the right to adjust the price of our goods accordingly after notifying the customer thereof. We may enforce such an increase in the price of our goods within a period of two months after the aforementioned price increases. The individual cost elements and any increase therein shall be weighted accordingly in determining the revised price. In the event that some cost elements increase at the same time as others decrease, this shall also be taken into consideration when determining the revised price.
- 3. Our prices as valid on the delivery date shall apply in the event that no price was agreed at the time the contract was concluded.
§ 4 Conditions of payment
- 1. Unless the order confirmation (or alternatively the invoice) states otherwise, the purchase price (without deductions) shall be due for payment within 14 days of the date of the invoice. Unless otherwise agreed, the invoice must be settled within 30 days net from the date of the invoice. New customers must pay in advance. The deemed date of payment for all methods of payment is the date on which the amount due is cleared in one of our bank accounts and at our unconditional disposal. Any charges for foreign transactions must be paid by the customer.
- 2. Should the customer default in making the payment paying then we are entitled to charge late payment interest of 8% above the base rate. We reserve the right to provide evidence of a higher rate of interest and to charge interest accordingly. In the event of any payment default we shall be entitled to withdraw any discounts or concessions offered. We shall be entitled refuse to make any further deliveries unless payment is received in advance.
- 3. Any breach of our conditions of payment, payment default or other circumstances that are capable of reducing the customer’s creditworthiness shall result in all payments becoming due immediately.
- 4. The customer has no right of set-off unless its counterclaims have been legally determined or such counterclaims are undisputed or accepted by us.
- 5. The customer shall be entitled to withhold payment if its counterclaim results from the same contractual relationship or the counterclaim has been accepted or legally determined or such counterclaim is due for judgment.
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- 6. We are not obliged to accept bills of exchange or cheques as payment. Any credit notes provided in this respect are subject to discharge or encashment (by way of an undertaking to pay, not in lieu of payment); payment will be deemed to have been settled on the date on which the payment balance is at our disposal. Bills of exchange will be credited to the customer in consideration of any deductions we have to pay when passing the bill on for discounting, as well as for stamp duty, bank charges and (where applicable) collection fees.
- 7. We reserve the right to make further contractual or statutory claims in the event of payment default.
§ 5 Methods of and barriers to delivery
- 1. The delivery period shall commence on the date on which the order confirmation is sent but not before the customer has provided all the necessary documentation, authorisations and approvals, an agreed deposit payment has been received, documentary credit has been confirmed, all technical and/or commercial queries have been resolved and the export licence issued by the German authorities in accordance with § 12 has been received.
- 2. The delivery period shall be deemed to have been adhered to provided the item of delivery has left the factory by the date of expiry of the delivery period or the customer has been notified that the goods are ready to be dispatched.
- 3. In the event of any unforeseen circumstances outside our control which we have been unable to avert in spite of our exercising as much care as could have reasonably been expected in the particular circumstances, such as force majeure (e.g. war, fire, natural disasters) or a delay in the receipt of significant raw materials etc., regardless of whether these circumstances affect us or one of our suppliers, we shall be entitled to extend the delivery period for the duration of the obstacle to performance. The same rights apply in the event of strike action or lockouts affecting us or one of our suppliers. We will notify the customer without delay of any such circumstances and refund to the customer without delay any payments already received. If the obstacle to performance results in a delay of more than one month we shall have a right to rescind the delivery contract in full or part only.
- 4. Delivery is subject to correct supplies being received by us and such supplies being received on time. We will notify the customer of any delays. In the event that our suppliers are unable to supply us correctly or on time, and such delay is not our fault, the delivery period shall be extended accordingly by the period of delay. We may further rescind the contract in respect of the undeliverable item if the delivery date is delayed by more than one month as a result of our not having received supplies correctly or on time. Insofar as is permissible under competition law rules, we will assign any rights we have against the supplier to the customer for the supplier’s breach of contract for not supplying the goods. The customer shall have no right to make any other claim against us for damages or reimbursement of expenses.
- 5. In the event of a delay in delivery, the customer shall have a right to rescind the contract once a reasonable fixed deadline has elapsed without delivery having been received. In the event that performance by us is impossible, the customer shall have this right immediately without the need for any fixed deadline to expire. Without prejudice to or § 5 subsection 6 or § 9 below, neither of which are intended to reverse the burden of proof, there shall be no rights under this contract to claim for damages (including consequential loss); the same shall apply in respect of claims for reimbursement of expenses.
- 6. We shall be liable in accordance with statute if we have agreed to deliver on a fixed date; the same shall apply if the customer can prove that its interest in performance of the contract has fallen away as a result of a delay for which we are responsible.
- 7. Should despatch of goods be delayed at the customer’s request, we will charge the customer all costs incurred for storage of the goods from the date that is one week after the date on which the customer was notified that the goods were ready to be despatched.
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§ 6 Transfer of risk
- 1. If the customer is a merchant, the risk of accidental destruction or accidental deterioration of the goods will pass to the merchant at the moment the goods are handed to the merchant, or in the case of mail order goods at the moment the goods are handed to the carrier, forwarding agent or other person or entity instructed with the carriage of the freight.
- 2. If the customer is a consumer, the risk of accidental destruction or accidental deterioration of the goods even in the case of mail order goods shall not pass to the customer until the moment at which the goods are handed to the customer.
- 3. Acceptance of the goods will not be affected if the buyer has not gone through the acceptance procedure in time.
§ 7 Retention of title
- 1. We shall continue to own all goods until they have been paid for. In the case of business dealings with companies, we reserve title to all goods delivered until the customer has settled all of our current and future debts resulting from the business relationship. The retention of title by us shall also apply to spares or replacement parts, such as engines, control devices etc., even if these goods have been processed into other goods, since this shall not result in their becoming significant components within the meaning of § 93 of the German Civil Code (BGB).
- In the event of payment by cheque or bill of exchange, the retention of title by us shall continue to subsist after payment has been until such a time as we cease to be liable as endorser of the cheque or bill of exchange. In the event that demands are taken up into an open account (business relationship) we reserve title to the goods until such a time as all payments due under the existing open account are settled; the retention of title relates to the recognised balance; in such instances the provisions of this § 7 shall apply accordingly.
- 2. In the event of any breach of contract, and in particular any payment default, we shall be entitled to take back the goods once a fixed deadline has passed without the breach having been remedied. Any retraction of goods shall not constitute rescission of the contract unless a reasonable deadline fixed by us has elapsed without the breach having been remedied and we have made an express declaration as to our intention to rescind. Any costs we may incur in taking back the goods (in particular any transport costs) must be paid by the customer. In addition we shall be entitled to prohibit the customer from reselling the goods and from processing, combining or mixing the goods to which title has been retained with other goods, and to withdraw the direct debit mandate (§ 7 V). In the event that an express declaration to rescind is not made, the customer is not entitled to require delivery of any goods that have been were taken until such a time as payment of the purchase price and all costs has been made in full.
- 3. The customer must treat the goods with due care (including carrying out the necessary inspections and maintenance).
- 4. The customer may not charge, give as security or assign any items of delivery or any claims arising in respect of them. In the event of a charge or other third party intervention, the customer shall notify us in writing without delay so that we may bring a claim in accordance with § 771 of the German Code of Civil Procedure (ZPO). Even if we are successful in winning our claim in accordance with § 771 of the German Code of Civil Procedure (ZPO), any costs that remain in respect of this claim shall be borne by the customer.
- 5. The customer may resell, process or mix the goods with others in the ordinary course of business; however, the customer hereby assigns to us the rights to all debt claims resulting from the resale, processing or mixing of the goods or from any other legal grounds (in particular assurances or illegal acts) in respect of the goods at the face value of the agreed final invoice amount (including vale added sales tax), along with any associated rights. Should the goods delivered be part-owned by us as a result of our having retained title to them then such assignment of debt claims shall be pro rata to our share in the goods. If the goods delivered are resold in
- connection with third party goods which are not owned by the customer, the relevant debt claims shall be assigned to us pro rata in proportion of the final invoice amount of our goods to the final invoice amount of the third party goods. If the assigned debt claims are taken up into a running account then the account debtor shall hereby assign an appropriate proportion of the balance (including the final balance) in the open account to us; if interim balances are struck and it has been agreed that the balance be carried forward then the debt claim resulting from the interim balance to which we would have a right in accordance with the previous provision shall for the next balance be treated as if it has been assigned to us.
- The customer will continue to be entitled to assert the debt claim after assignment, however this shall not affect our right to assert the debt claim ourselves.
- We hereby undertake not to assert any debt claim for as long as the customer continues to be able to meet its payment obligations from proceeds received, the customer is not in default of payment, there has not been any petition for commencement of insolvency proceedings and payment has not ceased to be made.
- Should any of these circumstances be the case then the customer shall, if requested, give details of the debt claims and of the debtors themselves, provide all the information required so that we may assert the debt claims along with the necessary documentation, and notify the third parties (debtors) of the assignment.
- The same applies in the event that the customer has resold, processed or mixed the contractual goods in breach of contract.
- 6. Our retention of title to the contractual goods shall also apply in respect of the full value of any products that have been created by processing or modifying our goods, whereby such processing or modification shall be deemed to have been carried on our behalf so that we are the deemed manufacturer thereof. Should the processing or modification occur in connection with other goods, which we do not own, we shall acquire joint ownership in these goods prorata to the objective value of these goods; the customer hereby agrees that it will in such instances store the property for us with due care.
- If goods to which we have retained title are combined with other chattels so as to form a single product, or mixed with such chattels such as to become inseparable from them, and should the other chattels be deemed to be the main product, the customer shall hereby assign to us a share in the ownership of that product insofar as the customer owns the main product; the customer hereby agrees to store the main (partly owned) product for us. The same provisions shall apply to products of this nature as to any goods delivered to which we have retained title.
- 7. As security for our debt claims against the customer the customer hereby assigns to us all debt claims arising against third parties as a result of any combination of the goods delivered with third party goods. The assignment to us shall rank above all others.
- 8. The security to which we are entitled will not be called in insofar as the approximate value of our security exceeds the nominal value of the debt claims for which security is provided by 50%; which security has been released will be at our discretion.
- 9. Should the validity of our retention of title be conditional on particular requirements or formalities in the country of destination then the customer must ensure that these are fulfilled.
- 10. If requested, the customer shall document acceptance of our retention of title provisions by deed at the time the order is placed. The customer shall bear the cost of this.
§ 8 Liability for material defects and defects of title
If the customer is a merchant we shall be liable as follows for defects in any goods delivered, provided the duty to examine the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB) has been duly fulfilled, whereby notice of defects must be given in writing:
- 1. If the contractual goods are defective we may elect whether to remedy the defect or deliver goods that are defect free (subsequent performance).
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This is conditional on the defect not being merely an immaterial defect.
If either or both methods of subsequent performance are impossible or out of proportion then we may refuse to carry out subsequent performance.
We may also refuse to carry out subsequent performance if the customer has not fulfilled its payment obligations to us to such an extent as equates to that part of our goods which are defect free.
In the event of subsequent performance we shall bear any costs up to the value of the purchase price only, provided these costs are not elevated as a result of the contractual goods having been moved to somewhere other than the place of destination.
We will bear all costs incurred as a result of subsequent performance, and in particular any transport costs, toll or similar transport charges, labour costs and the cost of materials; we will not bear any extra costs incurred as a result of the goods having been moved to somewhere other than the place of destination.
- 2. Should subsequent performance as set out in § 8 subsection 1 above be impossible or in the event that it is unsuccessful then the customer shall be entitled to elect whether the purchase price be reduced accordingly or whether to rescind the contract in accordance with statute; this shall apply in particular in the event of a culpable delay or refusal to carry out subsequent performance and in the event that subsequent performance is also unsuccessful on the second attempt.
The customer shall have no further rights, or limited rights only, on whatever grounds as set out in § 9 below.
- 3. We do not accept liability for damage resulting from the following: unsuitable or improper use, incorrect assembly by the customer or by a third party, the usual wear and tear, incorrect or negligent treatment, excessive use, unsuitable equipment, influences of a chemical, electrochemical or electrical nature (unless we bear responsibility for them), or improper modifications or repairs by the customer or a third party carried out without our consent.
- 4. The limitation period for claims for defects is one year from the date of delivery, insofar as they are claims in respect of which liability is limited in accordance with § 8 or § 9.
Once the limitation period for subsequent performance has expired, the customer shall have no further rights to demand a reduction in the purchase price or to rescind the contract.
On the occurrence of circumstances as set out in sentence 3 the customer may, however, refuse to pay the purchase price if the customer would be entitled to do so as a result of rescission or a reduction in the purchase price; in the event of rescission being excluded and payment being refused subsequently, we shall be entitled to rescind the contract.
It is not intended that the burden of proof be reversed.
- 5. We will not be deemed to have validly provided any assurance or guarantee unless we have provided it by express written declaration.
§ 9 Customer’s right to rescission; miscellaneous liability on our part
- 1. It is not intended that the customer’s statutory right to rescission be excluded or limited, save as set out in § 8. Likewise, it is not intended that any of our statutory or contractual rights or claims be excluded or limited.
- 2. We will be liable without limit for intentional damage and gross negligence (and for our legal representatives and agents in this respect) as well as for any injury to life, limb or health. We will also be liable without limit in respect of any assurances or guarantees given if a defect that is covered by any such assurance or guarantee triggers our liability. There is no limit to our liability in respect of any statutory offences involving hazards (notably under the German Product Liability Act (Produkthaftungsgesetz)). Any liability in accordance with the entrepreneur’s rights to recourse under § 478 et seq. of the German Civil Code (BGB) shall not be affected.
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- 3. In the event of any other culpable breach of material contractual duties (cardinal obligations) our liability will be limited to foreseeable damage as would be typical for this type of contract.
- 4. Liability is excluded on all other legal grounds (in particular claims resulting from any breach of main or subsidiary duties under the contract, illegal acts or any other tortious act).
- 5. The same exclusions, limitations and exemptions apply to claims resulting from any fault at the time the contract was concluded.
- 6. § 9 shall apply mutatis mutandis to any claim for reimbursement of expenses (with the exception of claims under § 439 subsection 2 and § 635 subsection 2 of the German Civil Code (BGB)).
- 7. Any exclusion or limitation of our liability under this contract shall also apply in respect of our legal representatives and agents.
- It is not intended that the burden of proof be reversed. Cardinal obligations are material contractual duties, i.e. duties which give the contract its substance and on which the contractual parties can rely. Cardinal obligations therefore are those material rights and duties which are prerequisites for fulfilment of the contract and which are indispensible for the achievement of the purpose of the contract.
§ 10 Export control
- 1. If the customer intends to (re-)export the goods then the customer hereby undertakes to obtain the necessary consents and to comply with the applicable regulations for (re-)exporting the goods, and in particular to comply with the provisions of the German Foreign Trade Act (AWG) and the German Foreign Trade Regulations (AWV) or the Austrian Foreign Trade Act (AWG) as well as with any other provisions, such as United States export regulations. The customer is prohibited from (re-)exporting goods in breach of the aforementioned provision regardless of whether such goods are in the form as sold by the customer or as part of a new product.
- 2. The customer hereby undertakes to us that it will inform itself of its own accord as to the applicable provisions and regulations. Regardless of whether the customer notifies us of the final destination for the goods or not, the customer will be responsible itself for obtaining any consent that may be required from the relevant foreign trade office prior to exporting the goods. We are not obliged to provide information, advice or assistance in this respect.
- 3. In the event that the customer holds an export licence which applies to one of our goods or to our goods as part of a new product, the customer shall notify us without delay of any change in any circumstances which may affect the export licence. The customer undertakes to notify us without delay if any use, sale, import or export of our goods is subject to any export restriction or in the event that the customer has been denied any export facilitation measure or if any such measure has been suspended or withdrawn.
- 4. The customer shall notify us without delay if it is on the “Denied Persons List” of the United States Bureau of Industry and Security, or on any other comparable list. If the customer’s business activities are (also) carried out for military purposes then the customer shall set up a valid Export-/Import Compliance Program within the meaning of the International Traffic in Arms Regulations (ITAR) and shall apply to be registered with the United States Office of Defense Trade Controls, unless the customer falls within one of the exemptions listed in 22 CFR International Traffic in Arms Regulations, part 122.1.
- 5. The customer hereby indemnifies us, our managing directors, employees and agents from all liability resulting from any breach of the duties listed in this § 10 by the customer or its entities, employees, agents, suppliers or subsidiaries.
- 6. The customer undertakes to obtain corresponding undertakings from third parties when supplying our goods or products of which our goods form part to third parties. The customer will be liable in full for any breach of said corresponding duties by any third party. The customer must notify us without delay if any breach by any third party of its duties in connection with the (re-)export of our goods or goods produced from them becomes known to the customer.
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§ 11 Export-/import licences
- Our offers shall only be valid for so long as the necessary export licence from the German Federal Office of Economics and Export Control (BAFA) is in place.
- If necessary, the customer may have to obtain an export licence and end user certificate in due time in accordance with statutory provisions, along with an import licence from the local authorities in the country of importation. The cost for this shall be borne by the customer.
- Should the authorities object to fulfilment of the contract then the seller shall be entitled to rescind the contract, and the customer shall have no further rights against the seller. The customer will be obliged to reimburse the seller for any costs incurred.
§ 12 Applicable law; jurisdiction
- 1. This contract is governed German law. The provisions of the UN CISG are excluded from this contract.
- 2. If the customer is a merchant, legal entity governed by public law or special asset under public law then our place of business will be the place of exclusive jurisdiction in respect of any disputes resulting from this contract. The same shall apply if the customer does not have an address for service within Germany or the customer’s domicile or usual place of business are not known at the time at which a claim is brought.
§ 13 Data protection
- 1. All data required in order to process the order will be blocked and treated as strictly confidential in accordance with the provisions of the German Data Protection Act (Datenschutzgesetz).
Every customer has the right to receive information and a right for its saved data to be corrected, blocked or deleted. Please email email@example.com or send us your request by fax or post.
- 2. We reserve the right to provide data to third parties for credit check purposes. The customer may withdraw its data at any time.
§ 14 Customer’s duty to cooperate
- The customer is obliged to contribute actively to the successful and swift fulfilment of the contract by providing a swift exchange of information between the parties involved, checking documents and samples promptly, taking part in tests and accepting goods. All tests and decisions must be made within 14 days. All costs for travel and/or accommodation, if applicable, incurred in this respect shall be borne by the customer itself.
§ 15 Final provisions
- This contract may only be amended by prior agreement with us.
- Should any of the provisions of these standard terms and conditions, or any provision relating to any other agreement, be or become invalid then this shall not affect the validity of the remaining provisions or agreements. In any such instance an analogous statutory provision shall replace the invalid provision.