GENERAL TERMS AND CONDITIONS OF SALE AND SUPPLY TO COMMERCIAL CUSTOMERS
- These Terms and Conditions of Sale and Supply for NGK Spark Plug Europe GmbH (hereinafter referred to as "NGK") are an integral component of contracts with their commercial Customers. These General Terms and Conditions of Business apply to all business relationships of NGK with its customers. The terms and conditions of business shall only apply if the customer is an entrepreneur, a legal entity under public law or a special fund under public law.
- These Terms and Conditions of Business shall apply exclusively; NGK does not accept any terms and conditions of the customer which contradict or deviate from these Terms and Conditions of Business unless NGK has expressly agreed to their validity. These General Terms and Conditions of Business shall also apply if NGK executes the delivery to the customer without reservation even if NGK is aware of conflicting or deviating terms and conditions of the customer which deviate from these General Terms and Conditions of Business.
- Legally relevant declarations and notifications which are to be submitted by the customer to NGK after conclusion of the contract (e. g. setting of deadlines, notification of defects, declaration of withdrawal or reduction) must be made in writing in order to become effective.
II. Contract conclusion
- NGK's offers are subject to change and non-binding. This shall also apply if NGK has provided the customer with catalogues, technical documentation, other product descriptions or documents. Technical descriptions and references to DIN or similar standards do not constitute a guarantee, unless this has been expressly guaranteed by NGK.
- The order of the goods by the customer is considered a binding contract offer. A delivery contract is only concluded upon written order confirmation, at the latest upon dispatch of the goods. Transmission by remote data transmission is sufficient in writing.
- In the absence of an express agreement to the contrary, prices are made ex NGK including packaging without freight costs.
- If the delivery time exceeds four months, NGK reserves the right to increase the agreed price to the extent that our costs increase (e.g. increase of raw materials, payroll costs, customs and excise, taxes etc.). If the price increase exceeds 5%, the Customer is entitled to withdraw from the contract by giving written notice within one week of receipt of notification of the price increase.
- In the case of a delivery purchase (Section V), the customer shall bear the transport costs ex warehouse and the costs of a transport insurance policy requested by the customer. Any customs duties, fees, taxes and other public charges shall be borne by the customer.
- Unless otherwise agreed, the agreed purchase price shall be due and payable within < 30 calendar days of invoicing. In the case of all means of payment, the date on which NGK can dispose of the amount owed by the customer shall be deemed to be the date of receipt of payment.
- Upon expiry of the payment period specified in No. 4, the customer shall be deemed to be in default. The purchase price shall bear interest during the period of delay at the applicable statutory default interest rate. NGK reserves the right to assert further damages for delay.
- The customer shall only be entitled to rights of set-off or retention to the extent that his claim is legally established or undisputed. In the event of defects in the delivery, the customer´s counterclaims shall remain unaffected.
IV. Reduced Creditworthiness
- If, after entering into a contract, NGK becomes aware of circumstances which might prejudice the creditworthiness of the Customer, NGK is entitled to demand immediate payment, even if cheques had already been received for payment. Furthermore, due to the above mentioned circumstances, NGK is entitled to execute pending orders only against pre-payment or provision of security and after a period of grace to withdraw from contracts with jeopardized payment or claim compensation for damages.
- Should NGK, due to reasons which could not be attributed to their fault, be obstructed from complying with a delivery date, NGK is not obliged to forward/procure the goods via air-freight.
- Should an obstruction of performance repeatedly continue, both parties are entitled to withdraw from the part of the contract which has not yet been fulfilled. The rescission from the unfulfilled part of the contract may not be declared prior to four weeks after the occurrence of obstruction of performance, unless this waiting period is unreasonable to either of the parties.
- If orders on request are agreed, call-off orders must be made to NGK in good time and if not agreed to the contrary, to approximately equal monthly amounts. If the orders are not called-off in time, NGK is entitled, after expiry of a futile period of grace, to deliver the goods or to withdraw from the outstanding part of the contract and demand compensation for damages.
- Part deliveries are permitted as long as this is reasonable to the Customer.
- If NGK, on Customer's request, exports goods without payment of customs and excise, the Customer shall be held liable for any supplementary claims made by the customs and excise office against NGK.
- Furthermore, compliance with NGK´s obligation to deliver or perform shall be contingent upon the timely and proper fulfilment of the customer's obligation. The defence of non-performance of the contract remains reserved.
VI. Terms of Performance/Passing of Risk
- In the case of a delivery purchase, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the customer, as soon as the goods are handed over to the freight forwarder, carrier or any other person or institution designated to carry out the delivery. The handover shall be deemed to have taken place if the customer is in default of acceptance. In the case of delivery ex warehouse, this risk is transferred to the customer at the time NGK informs the customer that the goods can be fetched.
- If nothing to the contrary has been explicitly agreed, packaging and the mode of transport are at the discretion of NGK.
VII. Retention of Title
- NGK retains title to the goods until full payment of all current and future claims arising from the respective purchase contracts and the current business relationship (hereinafter referred to as "secured claims").
- The goods subject to retention of title may neither be pledged to third parties nor assigned as security before complete payment of the secured claims. The customer must inform NGK immediately in writing if and to the extent that access by third parties to NGK´s goods occurs.
- The customer is entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:
- The retention of title extends to the products created by processing, mixing or combining the goods of NGK at their full value, whereby NGK is deemed to be the manufacturer. If, in the case of processing, mixing or combination with goods of third parties, NGK acquires co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
- The claims against third parties arising from the resale of the goods or the product shall be assigned to NGK by the customer in full or in the amount of NGK´s possible co-ownership share in accordance with the preceding paragraph as security. NGK accepts the assignment.
- The customer is allowed collect the claims in his own name as long as he duly fulfils all his obligations to NGK. NGK will not collect the claim as long as the customer fulfils his payment obligations to NGK, does not fall into arrears of payment, no petition for the opening of insolvency proceedings has been filed and no other deficiencies in his ability to pay exist. If this is the case, however, NGK shall be entitled to demand that the customer discloses to NGK the assigned claims and their debtors, provides NGK with all information necessary for collection, hands over the associated documents and notifies the debtors (third parties) of the assignment.
- If the realisable value of the securities exceeds NGK´s claims by more than 10%, NGK shall release securities at the request of the customer. NGK is responsible for selecting the securities to be released.
- The Customer shall ensure safe and proper custody of objects to which NGK has title and must insure such at its own expense against theft, fire and other property damage.
- If in a foreign country of destination, retention of title is ineffective or not effective to the intended extend, the Customer must on request co-operate in the provision of securities of which the effectiveness comes as close as possible to such retention of title.
VIII. Warranty claims of the customer
- The statutory provisions shall apply to the customer´s rights in the event of material defects and defects of title, unless otherwise provided for in the following:
- The customer´s claims for defects presuppose that he has complied with his statutory duties of inspection and notification of defects (§§ 377,381 HGB). If a defect becomes apparent during the examination or later, NGK must be notified in writing without delay. The notification shall be deemed to be immediate if it is made within two weeks, whereby timely dispatch of the notification is sufficient to comply with the deadline. Irrespective of this obligation to inspect and give notice of defects, the customer must notify NGK in writing of obvious defects (including wrong and short deliveries) within two weeks of delivery, whereby the timely dispatch of the notification is sufficient to comply with the deadline. If the customer fails to properly inspect and/or report defects, NGK´s liability for the undisclosed defect shall be excluded.
- If the delivered goods are defective, NGK may initially choose whether to effect subsequent performance by rectifying the defect (rectification of defects) or by supplying a defect-free goods (replacement delivery). NGK´s right to refuse subsequent performance under the statutory conditions shall remain unaffected.
- NGK shall be entitled to make the subsequent performance owed dependent on the customer paying the due purchase price. However, the customer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.
- The customer shall give NGK the time and opportunity necessary for the subsequent performance owed to NGK, in particular to hand over the rejected goods for inspection purposes. In the case of a replacement delivery, the Customer shall return the defective goods to NGK in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor its re-installation if NGK was not originally obliged to install it.
- NGK shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs (not: dismantling and installation costs) if a defect is actually present. If, however, a request for remedy of defects by the customer turns out to be unjustified, NGK may demand reimbursement of the costs.
- Contrary to the statutory provisions, the general limitation period for claims arising from material defects and defects of title is one year from delivery.
- The customer´s claims for damages or reimbursement of futile expenses shall only exist in accordance with Section X and are otherwise excluded.
IX. Product Liability
- If possible and reasonable, the Customer is requested to keep records on resale in order to be able to identify the buyer in events of damage. The Customer is obliged to bind his customer accordingly as long as this kind of documentation is possible and reasonable to them.
- The Customer will support NGK in every reasonable manner in defending NGK against product liability.
- The Customer will notify NGK promptly with regard to any claims or other unusual circumstances in connection with the products,
- Insofar as nothing else arises from these terms and conditions of business including the following provisions, NGK shall be liable for a violation of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
- NGK shall be liable for damages - irrespective of the legal grounds - in the event of intent and gross negligence. In the event of ordinary negligence, NGK shall only be liable for
- damages resulting from injury to life, limb or health,
- damages resulting from the violation of an essential contractual obligation (obligation, the fulfilment of which makes the proper execution of the contract possible in the first place and on whose observance the contractual partner regularly relies and may trust); in this case, however, NGK´s liability is limited to the compensation of the foreseeable, typically occurring damage.
- The limitations of liability resulting from Section 2 shall not apply if NGK has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods.
XI. Intellectual Property Rights
NGK retains proprietary rights and copyright for all illustrations, drawings, technical descriptions, operating instructions, calculations and other documents. Such information may not be made available to third parties without the express written consent of NGK.
XII. Applicable law, Place of performance, Prorogation
- The law of the Federal Republic of Germany, including the UN Convention on Contracts for the International Sale of Goods, shall apply to these business relationships and all legal relations between NGK and the Customer. Prerequisites and effects of the retention of title pursuant to Section VII are subject to the law at the respective storage location of the goods, insofar as the choice of law in favour of German law is inadmissible or ineffective.
- Place of performance is Ratingen
- If the customer is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law or a special fund under public law, the exclusive - including international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is NGK´s registered office in Ratingen. However, NGK shall also be entitled to institute legal proceedings at the general place of jurisdiction of the customer.
NGK Spark Plug Europe GmbH