Allgemeine Geschäftsbedingungen

der Zorn GmbH – 10. Dezember 2019

I. Scope of Application

Orders shall become binding only upon the Supplier’s order confirmation. Amendments and supplements should be made in text form. All quotations are non-binding unless expressly designated as firm offers. In the case of ongoing business relationships, these Terms and Conditions shall also apply to future transactions in which no express reference is made to them, provided that they were supplied to the Purchaser in connection with an earlier order confirmed by the Supplier. The Purchaser’s terms and conditions shall not apply unless expressly accepted by the Supplier in writing. Should any individual provision be or become invalid, the validity of the remaining provisions shall not be affected.

II. Prices

Unless otherwise specified, prices shall be ex works, excluding freight, customs duties, ancillary import charges and packaging, plus value-added tax at the applicable statutory rate. If the relevant cost factors change substantially between submission of the quotation or order confirmation and delivery, the Supplier and the Purchaser shall agree on an adjustment of the prices and of the cost shares attributable to moulds. Where the price has expressly been made dependent on the weight of the parts, the final price shall be determined by the weight of the approved reference samples. For new orders, including repeat orders, the Supplier shall not be bound by previous prices.

III. Delivery and Acceptance Obligations

Delivery periods shall commence upon receipt of all documents required for execution of the order, the agreed advance payment and any materials to be supplied by the Purchaser in due time, insofar as these have been agreed. Upon notification that the goods are ready for dispatch, the delivery period shall be deemed to have been met if dispatch is delayed or rendered impossible through no fault of the Supplier.

If an agreed delivery period is not met due to the Supplier’s own fault, and provided that the Supplier has not acted with gross negligence or intent, the Purchaser shall, to the exclusion of any further claims and after expiry of a reasonable grace period, be entitled either to claim compensation for delay or to withdraw from the contract. Compensation for delay shall be limited to a maximum of 5% of the value of that portion of the delivery that was not performed in accordance with the contract. Withdrawal shall be excluded if the Purchaser itself is in default of acceptance. The Purchaser shall retain the right to prove that a higher loss has been incurred.

Reasonable partial deliveries and reasonable deviations from the quantities ordered of up to plus or minus 10% shall be permissible.

In the case of call-off orders for which no term, production batch sizes or acceptance dates have been agreed, the Supplier may, no later than three months after the order confirmation, require these matters to be defined in a binding manner. If the Purchaser fails to comply with this request within three weeks, the Supplier shall be entitled to set a further grace period of two weeks and, after its expiry, to withdraw from the contract and/or claim damages.

If the Purchaser fails to fulfil its acceptance obligations, the Supplier shall, without prejudice to any other rights, not be bound by the statutory provisions governing self-help sales, but may instead sell the goods by private sale after prior notification of the Purchaser.

Events of force majeure shall entitle the Supplier to postpone delivery for the duration of the impediment plus a reasonable start-up period, or to withdraw from the contract in whole or in part with respect to the portion not yet performed. Strikes, lockouts and unforeseeable, unavoidable circumstances, such as operational disruptions, shall be deemed equivalent to force majeure where they make timely delivery impossible despite reasonable efforts on the part of the Supplier. The Supplier shall bear the burden of proving such circumstances. This shall also apply if the aforementioned impediments occur during a period of delay or at a subcontractor.

The Purchaser may request that the Supplier declare within two weeks whether it intends to withdraw from the contract or to deliver within a reasonable additional period. If the Supplier fails to make such a declaration, the Purchaser may withdraw from the unfulfilled part of the contract.

The Supplier shall notify the Purchaser without delay if an event of force majeure as described above occurs. The Supplier shall keep any adverse effects on the Purchaser to a minimum, where appropriate by releasing the moulds for the duration of the impediment.

IV. Packaging, Dispatch, Transfer of Risk and Default of Acceptance

Unless otherwise agreed, the Supplier shall select the packaging, method of dispatch and transport route. Even in the case of carriage-paid delivery, risk shall pass to the Purchaser when the goods leave the Supplier’s works. If dispatch is delayed for reasons attributable to the Purchaser, risk shall pass upon notification that the goods are ready for dispatch. At the Purchaser’s written request, the goods shall be insured at the Purchaser’s expense against the risks specified by the Purchaser.

V. Retention of Title

The goods supplied shall remain the property of the Supplier until all claims held by the Supplier against the Purchaser have been satisfied, even where the purchase price relating to specifically designated claims has been paid. In the case of a current account, the retained title to the goods supplied (“goods subject to retention of title”) shall serve as security for the Supplier’s balance claim.

If the Supplier incurs liability on a bill of exchange in connection with payment of the purchase price, the retention of title shall not expire before the bill of exchange has been honoured by the Purchaser as drawee.

Any processing or transformation by the Purchaser shall be carried out on behalf of the Supplier, excluding acquisition of title by the Purchaser pursuant to section 950 of the German Civil Code (BGB). The Supplier shall acquire co-ownership of the resulting item in the proportion that the net invoice value of its goods bears to the net invoice value of the goods being processed or transformed. The resulting item shall serve as goods subject to retention of title to secure the Supplier’s claims under paragraph 1.

Where the Purchaser processes, combines or mixes the goods with other goods not belonging to the Supplier, sections 947 and 948 BGB shall apply, with the result that the Supplier’s co-ownership share in the new item shall constitute goods subject to retention of title within the meaning of these Terms and Conditions.

The Purchaser may resell goods subject to retention of title only in the ordinary course of business and only on condition that it also agrees a retention-of-title arrangement with its customers in accordance with paragraphs 1 to 3. The Purchaser shall not be entitled to make any other disposition of the goods subject to retention of title, in particular to pledge them or transfer them by way of security.

In the event of resale, the Purchaser hereby assigns to the Supplier in advance, until all claims of the Supplier have been satisfied, all claims and other legitimate rights against its customers arising from the resale, together with all ancillary rights. At the Supplier’s request, the Purchaser shall immediately provide all information and hand over all documents required for the Supplier to enforce its rights against the Purchaser’s customers.

If, after processing in accordance with paragraph 2 and/or 3, the Purchaser resells the goods subject to retention of title together with other goods not belonging to the Supplier, the assignment of the purchase-price claim under paragraph 5 shall apply only up to the invoice value of the Supplier’s goods subject to retention of title.

If the value of the security held for the Supplier exceeds the Supplier’s total claims by more than 10%, the Supplier shall, at the Purchaser’s request, release security to that extent at the Supplier’s discretion.

Any attachment or seizure of the goods subject to retention of title by third parties must be reported to the Supplier without delay. Any intervention costs arising as a result shall in all cases be borne by the Purchaser insofar as they are not borne by third parties.

If the Supplier exercises its retention-of-title rights by taking back goods subject to retention of title in accordance with the above provisions, it shall be entitled to sell the goods by private sale or have them auctioned. The assertion of retention of title, and in particular a demand for surrender, shall constitute withdrawal from the contract. The goods subject to retention of title shall be credited at the proceeds obtained, but no more than the agreed delivery prices. Further claims for damages, in particular for loss of profit, shall remain reserved.

VI. Liability for Defects in Goods

The approved reference samples submitted by the Supplier to the Purchaser for inspection upon request shall be decisive for the quality and design of the products. References to technical standards serve to describe the performance and shall not be construed as a guarantee of quality.

Where the Supplier has advised the Purchaser outside the scope of its contractual obligations, the Supplier shall be liable for the functionality and suitability of the goods only where it has given an express prior assurance.

Complaints concerning defects must be made in writing without delay. In the case of hidden defects, the complaint must be made without delay after discovery. In both cases, unless otherwise agreed, all claims for defects shall become statute-barred twelve months after the transfer of risk. Where longer periods are mandatorily prescribed by law pursuant to section 438(1) no. 2 BGB, section 479(1) BGB or section 634a(1) no. 2 BGB, those longer periods shall apply.

In the event of a justified complaint concerning defects—whereby the approved reference samples released in writing by the Purchaser determine the expected quality and design—the Supplier shall be obliged to provide subsequent performance. If the Supplier fails to meet this obligation within a reasonable period or if rectification fails despite repeated attempts, the Purchaser shall be entitled to reduce the purchase price or withdraw from the contract. Further claims, in particular claims for reimbursement of expenses or damages arising from defects or consequential damage caused by defects, shall exist only within the scope of Section VII. Replaced parts shall, upon request, be returned to the Supplier carriage forward.

Unauthorised reworking and improper handling shall result in the loss of all claims for defects. Only in order to prevent disproportionately extensive damage, or where the Supplier is in default in remedying the defect, shall the Purchaser be entitled—after prior notification of the Supplier—to carry out rectification itself and claim reimbursement of the reasonable costs.

Wear and tear resulting from use in accordance with the contract shall not give rise to warranty claims. Rights of recourse pursuant to sections 478 and 479 BGB shall exist only where the claim made by the consumer was justified and only to the statutory extent. They shall not apply to goodwill arrangements not agreed with the Supplier and shall be conditional upon compliance by the party entitled to recourse with its own obligations, in particular its duties to inspect and give notice of defects.

VII. General Limitations of Liability

In all cases in which the Supplier is obliged, under contractual or statutory provisions and contrary to the foregoing Terms and Conditions, to pay damages or reimburse expenses, the Supplier shall be liable only to the extent that the Supplier, its executive employees or its agents have acted intentionally or with gross negligence, or have caused injury to life, limb or health.

Strict liability under the German Product Liability Act and liability for fulfilment of a guarantee of quality shall remain unaffected. Liability for culpable breach of material contractual obligations shall also remain unaffected; however, except in the cases referred to in the first sentence, such liability shall be limited to the foreseeable damage typical of the contract. The foregoing provisions shall not alter the burden of proof to the detriment of the Purchaser.

VIII. Terms of Payment

All payments shall be made in euros exclusively to the Supplier. Unless otherwise agreed, the purchase price for deliveries or other services shall be due net, without deduction, within 14 days of the invoice date.

If the agreed payment deadline is exceeded, interest shall be charged at the statutory rate of 8 percentage points above the applicable base interest rate of the European Central Bank, unless the Supplier proves a higher loss. The Purchaser shall retain the right to prove that a lower loss was incurred.

The Supplier reserves the right to refuse cheques or bills of exchange. Cheques and rediscountable bills of exchange shall be accepted only on account of performance; all associated costs shall be borne by the Purchaser.

The Purchaser may set off claims or exercise a right of retention only where its claims are undisputed or have been finally determined by a court.

Persistent failure to comply with payment terms, or circumstances giving rise to serious doubts concerning the Purchaser’s creditworthiness, shall result in the immediate maturity of all claims held by the Supplier. In addition, the Supplier shall in such cases be entitled to demand advance payment for outstanding deliveries and, after the unsuccessful expiry of a reasonable period, to withdraw from the contract.

IX. Moulds (Tools)

The price of moulds shall also include the cost of one initial sampling, but not the cost of inspection and machining fixtures or changes requested by the Purchaser. The cost of any additional sampling for which the Supplier is responsible shall be borne by the Supplier.

Unless otherwise agreed, the Supplier shall be and remain the owner of moulds manufactured for the Purchaser by the Supplier itself or by a third party commissioned by the Supplier. Moulds shall be used exclusively for the Purchaser’s orders for as long as the Purchaser fulfils its payment and acceptance obligations.

The Supplier shall be obliged to replace such moulds free of charge only where replacement is necessary to achieve an output quantity expressly guaranteed to the Purchaser. The Supplier’s obligation to retain the moulds shall expire two years after the last delivery of parts produced using the mould, following prior notification of the Purchaser.

If the Purchaser is to acquire ownership of the moulds, this must be expressly agreed in writing. In such case, ownership shall pass to the Purchaser only after the purchase price for the moulds has been paid in full. Physical delivery of the moulds to the Purchaser shall be replaced by the Supplier retaining them on behalf of the Purchaser. Irrespective of the Purchaser’s statutory right to surrender and the service life of the moulds, the Supplier shall be entitled to exclusive possession of them until termination of the contract.

The Supplier shall identify the moulds as third-party property and, at the Purchaser’s request and expense, insure them. In the case of moulds owned by the Purchaser in accordance with paragraph 3 and/or moulds provided to the Supplier on loan by the Purchaser, the Supplier’s liability for storage and maintenance shall be limited to the standard of care it applies to its own affairs. The costs of maintenance and insurance shall be borne by the Purchaser.

The Supplier’s obligations shall expire if, following completion of the order and a corresponding request, the Purchaser fails to collect the moulds within a reasonable period. As long as the Purchaser has not fully performed its contractual obligations, the Supplier shall in all cases have a right of retention in respect of the moulds.

X. Materials Supplied by the Purchaser

Where materials are supplied by the Purchaser, they must be delivered in due time, at the Purchaser’s cost and risk, in proper condition and with a reasonable quantity allowance of at least 5%. If these requirements are not met, the delivery period shall be extended accordingly. Except in cases of force majeure, the Purchaser shall also bear any additional costs arising from interruptions to production.

XI. Industrial Property Rights and Defects in Title

Where the Supplier is required to deliver in accordance with drawings, models or samples, or using parts supplied by the Purchaser, the Purchaser warrants that this will not infringe third-party intellectual property rights in the country of destination of the goods.

The Supplier shall inform the Purchaser of any rights known to it. The Purchaser shall indemnify the Supplier against third-party claims and compensate the Supplier for any resulting loss.

If a third party prohibits the Supplier from manufacturing or delivering the goods by relying on an intellectual property right held by that third party, the Supplier shall be entitled—without examining the legal position—to suspend work until the legal position has been clarified between the Purchaser and the third party. If the delay makes continuation of the order unreasonable for the Supplier, the Supplier shall be entitled to withdraw from the contract.

Drawings and samples supplied to the Supplier that do not result in an order shall be returned upon request; otherwise, the Supplier shall be entitled to destroy them three months after submission of the quotation. This obligation shall apply correspondingly to the Purchaser. The party entitled to destroy the materials must notify the other party of its intention to do so in due time.

The Supplier shall retain the copyright and, where applicable, industrial property rights, in particular all rights of use and exploitation, in models, moulds, fixtures, designs and drawings created by it or by third parties on its behalf. In the event of any other defects in title, Section VI shall apply accordingly.

XII. Place of Performance and Jurisdiction

The place of performance shall be the location of the Supplier’s works in Hungen-Inheiden, Germany, or the agreed collection point.

At the Supplier’s option, the place of jurisdiction shall be either the Supplier’s registered office in Hungen-Inheiden, Germany, or the Purchaser’s registered office, including for proceedings based on documents, bills of exchange and cheques.

German law shall apply exclusively. The United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods shall be excluded.

These General Terms and Conditions shall apply. We expressly retain title to the purchased goods until all payments arising from the business relationship with the Purchaser have been received.

Zorn GmbH • Ezetilstraße 1 • D-35410 Hungen-Inheiden, Germany

General Terms and Conditions of Purchase

§1

Basic Conditions

The legal relationship between the Supplier and Zorn GmbH, D-35410 Hungen (hereinafter referred to as the “Purchaser”), shall be governed by these Terms and Conditions and any other agreements. Amendments and supplements must be made in writing. Other general terms and conditions shall apply only if expressly accepted by the Purchaser in the individual case.

§2

Orders

(1) Supply contracts, including orders and acceptance, call-off orders and amendments thereto must be made in writing. Call-off orders may also be transmitted electronically.
(2) If an order and/or call-off order is not confirmed by the Supplier in writing within two weeks of the order date, the Purchaser shall no longer be bound by the order. Any later acceptance of the order shall constitute a new offer and shall require written acceptance by the Purchaser.
(3) Within reasonable limits for the Supplier, the Purchaser may request changes to the design and execution of the goods to be supplied. The effects of such changes, in particular any increase or reduction in costs and any impact on delivery dates, shall be settled by mutual agreement in an appropriate manner.
(4) Where delivery of a sample has been agreed, the purchase contract shall, unless otherwise agreed, be subject to the condition precedent that the sample is approved (purchase on approval pursuant to section 454 BGB).
(5) Any deviation from an approved sample requires the Purchaser’s prior written consent, for which the Supplier must apply by submitting a new sample. The same shall apply to deviations from approval records.

§3

Payment

(1) Payment shall be made in accordance with the agreed payment terms.
(2) Payment shall be made by bank transfer. Any discrepancies must be reported to the Purchaser without delay.
(3) In the case of defective delivery, the Purchaser shall be entitled to withhold a proportionate amount of the payment until proper performance has been rendered.
(4) Without the Purchaser’s prior written consent, which may not be unreasonably withheld, the Supplier shall not be entitled to assign its claims against the Purchaser or have them collected by third parties. Where an extended retention of title applies, consent shall be deemed granted. If, contrary to the first sentence, the Supplier assigns its claim against the Purchaser to a third party without the Purchaser’s consent, the assignment shall nevertheless be effective. However, the Purchaser may, at its option, discharge its obligation by making payment either to the Supplier or to the third party.

§4

Prices and Terms of Payment

(1) The price stated in the order shall be binding. Unless otherwise agreed in writing, the price shall include dispatch and transport to the Purchaser’s delivery address as well as packaging materials.
(2) The agreed price shall be due for payment within 60 calendar days after complete delivery and performance and receipt of a proper invoice. If the Purchaser pays within 14 calendar days, a cash discount of 3% of the net invoice amount shall be deemed agreed.

§5

Notice of Defects

The Purchaser shall notify the Supplier in writing and without undue delay of defects in the delivery as soon as they are identified in the ordinary course of business. In this respect, the Supplier waives the defence that notice of defects was given late.

§6

Confidentiality

(1) The contracting parties undertake to treat as business secrets all non-public commercial and technical details that become known to them through the business relationship.
(2) Drawings, models, templates, samples and similar items may not be handed over or otherwise made accessible to unauthorised third parties. Such items may be reproduced only to the extent required for business purposes and in compliance with copyright law.
(3) Without the Purchaser’s prior written consent, the Supplier shall not be entitled to have the services owed by it performed by third parties, such as subcontractors. The involvement of such subcontractors is therefore subject to notification and approval.
(4) Sub-suppliers shall be placed under corresponding obligations in accordance with paragraph 2.
(5) The contracting parties may advertise their business relationship only with prior written consent.

§7

Delivery Dates and Periods / Shipping Clauses

The delivery dates and periods specified by the Purchaser in its orders shall be binding. Receipt of the goods by the Purchaser shall determine whether a delivery date or period has been met. The Supplier must make the goods available in due time, taking into account the customary time required for loading and dispatch. Deliveries shall be handled in accordance with the Purchaser’s instructions. INCOTERMS 2010 shall apply to all trade terms. Unless the Purchaser specifies a different delivery term in the order, “free domicile” delivery shall be deemed agreed for all orders placed by the Purchaser. The corresponding rules governing transfer of risk shall apply.

§8

Packaging

At the Purchaser’s request, the Supplier shall take back the packaging material in which the ordered goods were delivered, at the Supplier’s expense.

§9

Delay in Delivery

(1) The Supplier shall compensate the Purchaser for damage caused by delay in the amount of 0.5% of the order value for each commenced week of delay, up to a maximum of 20% of the order value. If the Purchaser incurs greater damage caused by delay—which must be proven—arising from lost revenue, including lost contribution margins, contractual penalties imposed by customers or similar losses, the Supplier shall also compensate the Purchaser for such damage.
(2) In the case of slight negligence, damages shall be limited to additional freight costs and, after the unsuccessful expiry of a grace period or where the Purchaser has lost interest in the delivery, to the additional expenditure required for substitute purchases.

§10

Quality and Documentation

(1) For its deliveries, the Supplier shall comply with the recognised rules of technology applicable at the time of delivery, safety regulations, the laws applicable to performance of the relevant service under the applicable legal system, and the agreed technical data. Changes to the goods supplied require the Purchaser’s prior written consent. For initial sample inspection, reference is made to the VDA publication “Quality Assurance of Supplies – Supplier Selection / Production Process and Product Approval / Quality Performance in Series Production / Declaration of Substances”. Series deliveries may commence only after the Purchaser has accepted the samples. Irrespective of the foregoing, the Supplier shall continuously inspect the quality of the goods supplied. The contracting parties shall keep each other informed of opportunities for quality improvement.
(2) If the type and scope of inspections, and the inspection equipment and methods, have not been conclusively agreed between the Supplier and the Purchaser, the Purchaser shall, at the Supplier’s request and within the limits of its knowledge, experience and capabilities, be prepared to discuss the inspections with the Supplier in order to determine the required state of inspection technology. In addition, the Purchaser shall, upon request, inform the Supplier of the relevant safety regulations.
(3) In the case of parts specially identified in the technical documentation or by separate agreement, for example with the letter “D”, the Supplier shall additionally record in special documentation when, how and by whom the goods were inspected in relation to the characteristics subject to mandatory documentation, and the results of the required quality tests. Inspection records shall be retained for 15 years; for the D series, the retention period shall be 20 years. They shall be submitted to the Purchaser upon request. To the extent legally possible, the Supplier shall impose corresponding obligations on its own suppliers. Reference is made by way of guidance to the VDA publication “Documentation and Archiving – Guidelines for the Documentation and Archiving of Quality Requirements and Quality Records, Particularly for Critical Characteristics”.
(4) The required requalification tests under ISO/TS 16949 shall be carried out at the Supplier’s discretion. Corresponding records shall be made available to the Purchaser once per year, free of charge, upon request.
(5) The Supplier warrants that its deliveries comply with Regulation (EC) No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (the REACH Regulation). To the extent required under the REACH Regulation, substances contained in the Supplier’s products shall be pre-registered or, following expiry of the transitional periods, registered, unless the substance is exempt from registration. The Supplier shall provide safety data sheets in accordance with the REACH Regulation or the information required under Article 32 of the REACH Regulation. Upon request, the Supplier shall also provide the information required under Article 33 of the REACH Regulation. If the Supplier breaches any of the aforementioned obligations, we shall at all times be entitled to cancel the relevant order with immediate effect and refuse acceptance of the corresponding delivery without incurring any costs.
(6) The Supplier shall fully comply with the environmental requirements of German and European law, including Directive 2002/95/EC and Directive 2011/65/EU (the RoHS Directive). The Supplier shall reimburse the Purchaser for all losses and expenses, including legal enforcement costs, and indemnify it against all third-party claims resulting from a breach of the aforementioned environmental provisions for which the Supplier is responsible.

§11

Liability / Liability for Defects

(1) If the goods supplied are defective, the Purchaser’s claims shall be governed by statutory provisions unless otherwise provided below. Where operational safety is at risk, there is a risk of unusually high losses, or it is necessary to maintain the Purchaser’s ability to supply its customers, the Purchaser may, after informing the Supplier, carry out rectification itself or have it carried out by a third party. The Supplier shall bear the resulting costs. The Supplier shall be liable for all losses and expenses incurred directly or indirectly by the Purchaser as a result of defects in the goods. Reimbursable expenses shall also include the cost of an incoming-goods inspection exceeding the customary scope where at least part of the delivery has been identified as defective. This shall also apply to a partial or complete inspection of the delivery later in the Purchaser’s or our customers’ business processes. Where the Supplier uses third parties in performing its obligations, it shall be liable for them as for its own agents.
(2) The Supplier shall also reimburse expenses incurred by the Purchaser’s customers or by the Purchaser itself before or in connection with events giving rise to liability for defects, where such expenses are incurred for the early prevention, avoidance or mitigation of damage, for example in connection with recall campaigns.
(3) The Supplier shall reimburse expenses that the Purchaser is legally obliged to bear vis-à-vis its customers and that are attributable to defects in the delivery obtained from the Supplier.
(4) Unless mandatory statutory provisions require otherwise, the Supplier shall be liable for defects occurring within 36 months after receipt of the delivery by us or, where acceptance is required by law or contract, after acceptance. In the event of subsequent performance, the period shall be extended by the time during which the goods cannot be used in accordance with the contract. The same periods shall apply to subsequent performance. Claims for defects shall become statute-barred no earlier than two months after the end customer’s claims have been satisfied. This suspension of expiry shall end no later than five years after delivery to the Purchaser.
(5) For the duration of the supply relationship, the Supplier shall maintain appropriate insurance cover for the risks arising under this Section 11 concerning liability and liability for defects. Evidence of such insurance shall be provided upon request.

§12

Intellectual Property Rights

(1) The Supplier shall be liable for claims arising from infringement of intellectual property rights and applications for such rights through the contractual use of the goods supplied, provided that at least one right from the relevant family of rights has been published either in the Supplier’s home country, by the European Patent Office, or in Germany, France, the United Kingdom, Austria or the United States.
(2) The Supplier shall indemnify the Purchaser and its customers against all claims arising from the use of such intellectual property rights.
(3) This shall not apply where the Supplier has manufactured the goods in accordance with drawings, models or equivalent descriptions or specifications provided by the Purchaser and neither knows nor, in connection with the products developed by it, is required to know that intellectual property rights are thereby infringed.
(4) To the extent that the Supplier is not liable under paragraph 3, the Purchaser shall indemnify the Supplier against all third-party claims.
(5) The contracting parties undertake to notify each other without delay of any known risks of infringement or alleged cases of infringement and to give each other the opportunity to jointly defend against corresponding claims.
(6) At the Purchaser’s request, the Supplier shall disclose the use in the goods supplied of published proprietary or licensed intellectual property rights and applications for intellectual property rights.
(7) The principles governing limitation of liability set out in Section 9(1), Delay in Delivery, shall apply accordingly.

§13

Use of Manufacturing Equipment and Confidential Information of the Purchaser

Models, dies, templates, samples, tools and other manufacturing equipment, as well as confidential information made available to the Supplier by the Purchaser or paid for in full by the Purchaser, may be used for deliveries to third parties only with the Purchaser’s prior written consent. The Supplier shall retain title to all goods supplied by it until payment has been made in full. For this purpose, all deliveries shall be deemed part of one continuous supply transaction. In the case of a current account, retained title shall serve as security for the Supplier’s balance claims. In the case of contract processing, retention of title shall apply up to the value added in each case. If the Purchaser combines the goods with other items to create a single item and the other item is to be regarded as the principal item, the Purchaser shall transfer a proportionate co-ownership share to the Supplier, insofar as the principal item belongs to the Purchaser. If the Purchaser resells the delivered goods in the ordinary course of business, it hereby assigns in advance to the Supplier, until all claims of the Supplier have been fully discharged, all claims arising from the resale against its customer, together with all ancillary rights. Where justified, the Purchaser shall, at the Supplier’s request, disclose the assignment to third-party purchasers and provide the Supplier with all information and documents necessary to enforce its rights. The Supplier shall release security held by it to the extent that its value exceeds the secured claims by more than 20% in total.

§14

Final Provisions

(1) If either contracting party suspends payments or applies for composition proceedings, the other party shall be entitled to withdraw from the unfulfilled part of the contract, provided that an appropriate payment deadline has first been set.
(2) Should any provision of these Terms and Conditions or of any further agreements made be or become invalid, the validity of the remainder of the contract shall not be affected. The contracting parties shall replace the invalid provision with a provision that comes as close as possible to achieving the same economic result.
(3) Unless otherwise agreed, the law of the Federal Republic of Germany shall apply exclusively. The United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods shall not apply.
(4) The place of performance shall be the Purchaser’s registered office. A different place may be agreed for delivery.
(5) The place of jurisdiction shall be the Purchaser’s registered office.
(6) In the case of multilingual contracts, the German version shall govern interpretation.

 

Zorn GmbH
D-35410 Hungen, Ezetilstraße 1, Germany