Terms & Conditions
General Terms and Conditions of Delivery – 10/2007
1. Scope of validity
1.1 The following terms and conditions apply to all sales, supplies and services (hereinafter uniformly “Deliveries”) of VB Autobatterie GmbH & Co. KGaA, Johnson Controls Autobatterie GmbH and Johnson Controls Hybrid and Recycling GmbH and their subsidiaries. They are applicable to companies, corporate bodies under public law and special assets under public law (customers). By unchallenged acceptance of the general terms and conditions, the customer declares agreement with the sole applicability for the respective delivery and for all subsequent business activities.
1.2 We do not honour other terms and conditions, unless we have expressly accepted them in writing.
1.3 Oral agreements, before or in the course of contract conclusion, require our written confirmation to become effective.
2. Offer, Identifications, Guarantees and Conclusion of the Contract
2.1 Our offers are subject to change.
2.2 Contract documents such as illustrations, drawings and weight specifications are without engagement and only become a binding constituent of the contract when we expressly confirm the latter in writing.
2.3 Data on the composition and durability only applies as guaranteed if it has expressly been defined as such. The same applies to the acceptance of supply risks.
2.4 The contract is only binding upon our written confirmation of order. Oral agreements before, or in the course of contract conclusion, require our written confirmation to become effective.
3. Delivery, Delivery Periods, Delivery Delays, Packaging and Passing of Risk
3.1 Our written order confirmation is decisive for type and complexity of the delivery. Partial supplies and the respective billing thereof is permissible in reasonable quantities.
3.2 Delivery times are only binding if they have been agreed upon in writing. The delivery period begins with the dispatch of our order confirmation, however not before clarification and execution of all the essential questions pertaining to the activities to be completed by the customer in connection with the order. The delivery period by no means begins before the documents to be provided by the customer are obtained, the instalment due is received or the release order agreed upon has been settled by the customer. If the customer is in delay with the release order we reserve the right to ship the goods against invoice or to store the goods and to invoice the customer with the accrued charges at the customary rates.
3.3 Delivery is only possible if the credit line of the customer is not exceeded.
3.4 The delivery period has been complied with if the goods have left our plant or warehouse before expiry of said period, or our readiness for delivery has been notified.
3.5 Force majeure and other unforeseen events beyond our control, which cannot be eliminated at reasonable expense and which may jeopardise a smooth conclusion of the contract, particularly traffic and operational disorders, strikes, material and energy shortage, measures of state authorities as well as import and export restrictions, release us from our obligations to fulfil the contract for the period and complexity of such
impediments. This also applies when our sub-contractors are affected by these incidents. We cannot be held responsible for the above incidents if they occur in the course of a delay already experienced. If, by no fault of our own, the fulfilment of the order is entirely or partially jeopardised by the above mentioned incidents or becomes impossible, we are entitled to completely or partially withdraw from the contract. In such a case we reimburse excess payments already received from the customer without delay. We inform the customer immediately when such hold-ups occur, and again as soon as they have been eliminated.
3.6 Shipping and packaging is executed at the best of our knowledge. Unreserved acceptance of the goods by the forwarder or the carrier provides proof of unobjectionable packaging. If not otherwise agreed upon in writing, we send our goods at the risk and cost of the customer.
3.7 When the goods are sent to the customer the risks of accidental loss and deterioration of the goods pass over to the customer upon handover to the person in charge of transportation – no matter who bears the transportation costs – latest, however, upon leaving the plant or the warehouse. If shipping is delayed upon request of the customer or for reasons beyond our control, the risk passes over to the customer as soon as the latter has received notification of readiness for shipping.
3.8 Re-usable pallets, special crates and other special packaging remain our property and are to be returned to the sender, carriage paid, without interim utilisation. If these items are not returned within eight weeks after delivery we are entitled to invoice the customer in this respect.
3.9 Complaints with regard to transportation delays, deficiency or transportation damage are to be submitted to our forwarder and carrier immediately with respective information sent to us.
3.10 We are not committed to deliver third parties at the behest of the customer.
4. Warranty, Obligations of the Customer when giving Notice of Defects received from the latter’s own
Customers and Liability
4.1 Guarantee claims of the customer imply that said customer has fulfilled the examination obligations and requirements to give notice of defects as demanded by law. The detection of defects must be reported to us without any further delay – in the case of obvious defects latest, however, within a fortnight after receipt of the goods – in writing with a precise definition of the defect and the invoice number. This applies correspondingly in the case of incompleteness of goods. Documents, samples, packing slips and/or defect goods are to be returned to us upon request. Claims of customer resulting from defects or incompleteness of delivery are excluded should these obligations not be complied with.
4.2 If the goods prove to be defective we will either, as we deem fit, make improvements or supply goods without defects. Upon agreement with the customer we can take the goods back and reimburse the purchase price. Missing items are, in as far as possible, delivered subsequently. We reserve the right, upon agreement with the customer, to issue a credit note. We bear the liability for replacement deliveries and repair work to the same extent as for the goods delivered originally; the guarantee period starts a new for replacement deliveries. According to the legal provisions, the customer is entitled to withdraw from the contract or to a reduction of price should subsequent fulfilment fail. § 478 BGB is not affected. The customer is entitled to claims for damages pursuant to number 4.9.
4.3 The customer is committed to inform us without any delay whatsoever about any defect notice received from a subsequent customer involving our delivered item. If the customer does not comply with this obligation, the said customers claims for damages are forfeited as are the claims for compensation of expenses pursuant to § 478 BGB.
4.4 We cannot honour claims arising from marketing statements of our customer made to the subsequent customer or which are drawn up in customer’s promotion material for which our prior agreement has neither been solicited nor given.
4.5 Should our customer revert to recourse for expenses incurred due to a notice of defects of the subsequent customer (§ 478 BGB) we only compensate expenses amounting to a comparative type of subsequent fulfilment. We do not compensate expenses that result from subsequent transportation of the goods to a location other than the branch of the customer, unless this transfer complies with the intended use of the goods.
4.6 Furthermore, customer claims for recourse against us (§ 478 BGB) only apply provided the customer has not concluded agreements going beyond the legal claims for defects with the subsequent customer.
4.7 Claims for damages of third parties arising from the purchase of the goods pending subsequent delivery or from third parties engaged to carry out the subsequent repairs may only be asserted by recourse according to § 478 BGB if the customer granted us adequate time for subsequent fulfilment and this time has lapsed without success.
4.8 In the case of recourse according to § 478 BGB we only bear the burden of proof towards the customer that the defect did not already exist before transfer of risk to the customer for a period of 6 months from handover to said consumer – if not more than 12 months have lapsed between this transfer of risk and the further sale by the customer.
4.9 We are fully liable and bound to the product liability law, in cases of express acceptance of a guarantee or purchase risk and for wilful or grossly negligent breach of duties. We are also fully liable for wilful or grossly negligent harm to life, body or health. We are only liable for the violation of essential contractual obligations (cardinal) in the case of careless damage to material and assets, or if we have abused confidence in a particular manner, however, limited to typical contract damages foreseeable upon conclusion of the contract.
4.10 We are not liable for damages of any kind that result from faulty or improper handling, excessive strain, unsuitable operating materials, disrespect of the handling, inspection and storage instructions for our products, natural wear and tear or other influences, unless we are responsible for the latter. The same applies should the customer or third parties undertake changes or provide improper maintenance for the goods we have delivered.
4.11 If the buyer is entitled to demand compensation for damages in lieu of performance or to withdraw from the contract, he is committed to declare, upon our demand and within a reasonable time, whether he will avail himself of this right. Should the customer not provide such declaration within the period stipulated or if he insists on performance, he may only exercise these rights after a lapse in vain of a further reasonable extension of time.
4.12 If the buyer unjustly reprimands the existence of a defect, we are entitled to charge said buyer with the expenses incurred at a reasonable rate.
4.13 Demands for defects are time-barred 12 months after the transfer of risks. The same applies to defects of title. In the case of wilful breach of duty, claims arising from impermissible handling, lacking guaranteed properties, transfer or exercise risks and the damage to persons, the statutory periods of limitation §§ 438, Section 3 and 479 BGB remain unaffected.
4.14 Claims for damages going beyond the liability, as mentioned and drawn up under paragraph 4, are excluded – no matter for what legal reason such claims have been asserted.
4.15 The aforementioned limitations of liability apply for reason and amount also in favour of our legal representatives, employees and other vicarious agents.
4.16 Regardless of the aforementioned, we by no means bear the liability for indirect damage as, for instance, loss of profit.
5. Prices, Terms of Payment and Default
5.1 Unless otherwise agreed upon in writing, prices are valid on the day of delivery.
5.2 The receipt of payment on our account is decisive for adherence to terms of payment. Payment by draft is only permissible upon prior agreement. Drafts and cheques are accepted by us as conditional payment and only apply as payment upon full redemption. Discounts are not granted for payment made by draft.
5.3 The customer is in default if the reminder which is drawn up on due payment date is not settled upon receipt. The customer is also in default when he does not settle payment on certain dates as agreed upon in the contract. The legal regulation according to which the customer is automatically in default latest 30 days after receipt of the invoice or similar demand for payment remains unaffected.
5.4 We are entitled to set off payment requests against the receivables outstanding longest.
5.5 In case of default we are entitled to demand interest for default amounting to 8 percent annually above the respective bank rate of interest (§ 247 BGB). We reserve the right to provide proof of higher interest rates.
5.6 We are not committed to fulfil the contract before the buyer has fulfilled the obligations arising from other contracts with us, particularly regarding the payment of invoices still due.
5.7 The buyer may only set off against such demands or retain payment in such regard as has been confirmed in writing or has been legally substantiated.
5.8 If a considerable deterioration of the customer's assets is experienced which gives rise, under standard banking benchmarks, to doubt the financial solvency of the customer, or when payment dates are not complied with – even after a reasonable additional respite – we are entitled to deliver against cash in advance only, or against securities. Under the same prerequisites we can turn all receivables from the business relation into due immediately, provided the customer is liable for the payment default.
6 Retention of Title
6.1 We reserve the title to the goods delivered until all the receivables due from the business relation and receivables accumulating, no matter what the legal reason, have been settled. This also applies if payment of particularly mentioned receivables is received.
6.2 The customer is entitled to work and process our goods or their connection with other goods in the scope of orderly business operations. Working and processing reserved goods is carried out for us as manufacturer in the sense of § 950 BGB without committing us. We acquire o-ownership in the objects resulting from the processing or connection to safeguard our demands drawn up under sub-paragraph 6.1, and which the customer already assigns at this stage. The customer will store the items in which we have a co-ownership share free of charge. The share of this co-ownership is determined by the ratio of the invoice values which are contained in our product and in the item resulting from the processing or the connection at the point of time of processing or connecting.
6.3 We permit our customers, revocable, to sell to a subsequent customer in the normal course of business. This right lapses should payment of receivables cease. The customer already at this point cedes all the rights for receivables from subsequent sales and accessory rights; we hereby accept this surrender. For the subsequent sale of items in which we have acquired co-ownership according to sub-paragraph 6.2 the surrender is for that amount relating to the share of co-ownership. If the surrendered receivables are entered into a current invoice, the buyer already at this point cedes a share of the receivables from the current account with the business partner. The surrendered receivables are a security to cover all claims
as drawn up under sub-paragraph 6.1. The customer is entitled to collect the outstanding amounts, provided we do not revoke this power of authority. The collection authorisation lapses, even without express revocation, as soon as the customer stops payments. The customer has to inform us in writing and without delay upon demand whom the goods have been sold to and what receivables are due from said customer from this sale, and to issue, at own expense, notarised documents concerning the surrender.
6.4 The customer is not entitled to enter other acts of disposal for the goods subject to conditional sale or our co-ownership or the receivables of which have been surrendered to us – the customer may particularly not pledge the goods or pledge them as security. The customer must inform us immediately about any distraints by third parties, enforcement measures of third parties or other legal restrictions of the goods/receivables which we own completely or partly .
6.5 We are entitled, after an abortive expiry of an additional respite fixed by us, to demand restitution of the conditional goods, if the customer is in default with a demand for payment. The same applies if his financial status deteriorates considerably.
6.6 If the value of the securities exceeds the value of all the receivables due to us by over 20% we will immediately release such items of security as we deem fit and upon customers' demand.
6.7 We reserve the proprietorship and copyright to cost estimates, samples, drawings and other documents which we hand over to the customer in connection with the offer or our delivery; they may not be made available to third parties and are to be returned to us upon demand.
7. Data Protection
We are entitled to process, store or transmit the data received about the customer in connection with the business relation to a trade protection society, provided this is necessary for the purpose of the contract or to safeguard our justified interests and there is no reason to assume that a predominant interest of the customer meriting protection forbids the latter.
8. Utilisation of Brand Name
Our customer may only utilise the brand names protected for us in his promotion upon receipt of our prior agreement, according to our specifications, in their original layout and for unadulterated original goods. Our agreement may be revoked whenever we deem it necessary. The entire responsibility for the layout of said promotion is borne by the customer.
9. Governing Language
These General Terms and Conditions are drafted in German. They may be translated into any other language provided that the German text shall prevail.
10. Place of Performance, Venue and Applicable Law
10.1 The place of performance for all liabilities arising from the contractual relations is the location of the supplying plant or warehouse.
10.2 The exclusive venue is Hanover, Germany.
10.3 The contract is subject to the law of the Federal Republic of Germany excluding the legal standards of the conflict of laws and of the uniform UN Convention on Contracts for the International Sale of Goods (CISG).
General Terms and Conditions of Purchase – 02/07
§ 1 Applicability
(1) All supplies, services and offers of our suppliers are effected exclusively based on these General Terms and Conditions of Purchase. They are a constituent of all contracts which we conclude with our suppliers for the supplies or services they offer.
(2) The terms and conditions of our suppliers or of third parties are not applied, even if their applicability is not contradictory in the individual case. Even if we make reference to a letter which contains or refers to terms and conditions of business of the supplier or of a third party this does not mean that said terms and conditions have been accepted and are applicable.
(3) Oral agreements must be drawn up in writing to become applicable.
§ 2 Orders and contracts
(1) We are entitled to change time and place of delivery and type of packaging by written notification whenever we deem necessary.
(2) Our orders can be effected by the following mode: delivery scheduling (electronic / by facsimile), Kanban, eprocurement, SAP ordering, written order forms. Furthermore, we reserve the right to introduce further modes of order whenever we deem necessary.
§ 3 Prices, terms of payment, invoice data
(1) The price drawn up in the order is binding.
(2) For lack of contradictory written agreement the price includes delivery and transport to the delivery address drawn up in the contract, including packaging.
(3) If, according to the agreement concluded, the price does not include packaging and if payment is not expressly due for the packaging – not only provided on loan –, such packaging is to be invoiced at verifiable cost price. The supplier is committed, where possible, to use non-polluting, recyclable packaging material.
(4) The terms of payment drawn up in the individual orders apply. The date of invoice receipt or the date of goods receipt / the provision of the services applies as reference date, depending on which date is the later (so-called payment period date).
(5) Payments are effected twice a month, on 1st and 15th of every month. If these days are a public holiday or a weekend, respectively, the payments are effected on the following business day.
(6) Principally our order forms / order confirmation forms are to be used. In all diverging order confirmations, shipping documents and invoices our order number, the order item number, the article number and the supply volume are to be entered. Should one or several of this data be missing and, therefore, in the scope of our standard business processing be delayed, the payment period drawn up under Point (4) above or the terms of payment, respectively, is extended by the time of said delay.
§ 4 Delivery period and delivery, transfer of risk
(1) The delivery period drawn up in the order (delivery period or deadline) is binding. Early deliveries are not permissible.
(2) The supplier is committed to inform us, in writing and without any delay whatsoever, when circumstances occur or become evident as a result of which the delivery time cannot be complied with.
(3) We are entitled, upon delivery delays and upon prior written notice given to the supplier, to impose a penalty for every commenced week amounting to 1.0% up to a maximum of 10% of the order value for delays in delivery. The penalty is to be added to the damage caused by the delay.
(4) The supplier is only entitled to effect partial deliveries upon receipt of our prior agreement.
§ 5 Protection of property
(1) We reserve our title or copyright to all orders and contracts as well as the drawings, illustrations, calculations, specifications and other documents placed at the disposal of the supplier. The supplier may neither make these accessible to third parties nor publish them, utilise them themselves or allow third parties to do so or duplicate them without our express agreement. The supplier shall return these documents and possible copies in full number without requiring prior request as soon as these are no longer required to carry out the transaction in due form, or when
negotiations do not lead to the conclusion of a contract.
(2) Tools, equipment and models which we place at the disposal of the supplier or which are fabricated for the contract and are invoiced separately by the supplier remain our property or pass over into our property. Such items are to be identified as our property by the supplier, are to be stored with all due care, are to be safeguarded against any danger whatsoever, and are only to be utilised in line with demands arising in connection with the contract. The supplier will inform us without any delay whatsoever about any damage incurred, be it minor or major. The supplier is committed,
upon prior demand, to relinquish these items to us in good condition if they are no longer required to fulfil the contracts concluded with us.
§ 6 Warranty claims
(1) We are entitled to all the statutory claims for deficiencies.
(2) We do not relinquish any warranty claims by accepting or approving any samples or patterns put forward.
§ 7 Product liability
The supplier is responsible for all claims brought forward by third parties resulting from personal injury or material damage and which can be traced to a faulty product supplied by said supplier who is committed to release us from any resulting liability. If we are committed to instigate a product recall for reason of a defective product supplied by the supplier, said supplier bears all the costs involved in such a recall campaign.
§ 8 Industrial property rights
(1) The supplier avouches that no industrial property rights of third parties in countries of the European Union, North America or other countries in which said supplier manufactures products or has said products manufactured are infringed upon in connection with the supplies.
(2) The supplier is committed to release us of all demands which third parties may lodge against us due to an infringement of industrial property rights as drawn up under Point (1) and to compensate all the necessary expenses incurred in connection with this claim. This claim remains in force, no matter whether the supplier is at fault or not.
§ 9 Secrecy
(1) The supplier is committed to maintain secrecy with regard to the conditions of the order and all the information and documents placed at disposal for the purpose of carrying out the order (with the exception of information readily accessible to the public) for a period of 5 years after termination of said contract and, furthermore, to only implement them to execute the order. Upon completion of enquires or upon completion of orders the supplier will return said documents immediately upon demand.
(2) The supplier may not make reference to our business relation in advertising material, brochures, etc. and may not exhibit delivery items produced for us without receiving prior written agreement from us. (3) The supplier will bind sub-suppliers in compliance with this § 9.
§ 10 Assignment
The supplier is not entitled to assign receivables from this contractual relation to third parties. This does not apply where monetary claims are concerned.
§ 11 Miscellaneous
The supplier, his employees and his contractual partners shall comply with our ethics policies (www.jci.com/corpvalues/ethics.htm) and sustainability principles (www.jci.com/sustainability.asp).
§ 12 Place of performance, venue, applicable law
(1) Place of performance for both parties and exclusive venue for all disputes arising from the contractual relation is Hanover.
(2) The contracts concluded between us and the supplier are subject to the law of the Federal Republic of Germany with the exception of the UN Convention on Contracts for the International Sale of Goods.