General Terms and Conditions of igus® GmbH (hereinafter referred to as igus®)
Version: April 2024
I. Scope
1. igus®’s product offers are intended exclusively for entrepreneurs as defined in § 14 German Civil Code. Thus, these General Business Terms and Conditions shall be valid exclusively for companies. An entrepreneur shall be any natural or juridical person or partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.2. These General Business Terms and Conditions shall be valid for all agreements concluded between igus® and its customers. In the case of on-going business relationships, they shall also be valid for any future agreements even if they have not been expressly referenced again if they have been received by the customer for an order previously confirmed by igus®. Any deviating purchasing terms and conditions of the customer shall only be binding on igus® if they have been expressly acknowledged by igus®. If individual provisions of these General Business Terms and Conditions should be or become invalid, then the remaining provisions shall not be affected by this.
II. Conclusion of Agreements
1. Orders shall only become binding after being confirmed by igus®. Quality assurance standards as well as the application of customer-specific agreements must be expressly agreed in writing. Any amendments of and supplements to contractual terms and conditions shall require the written consent of igus®. All offers shall be non-binding unless they have been designated as being binding offers. igus® shall not be obliged to conclude agreements or to accept orders or to approve contractual changes.2. Any declarations and statements of the customer – particularly orders or call-offs of goods, prices, quantities and delivery dates – which are made by way of an electronic data interchange (EDI) shall only be legally binding if they have been expressly confirmed in text form by igus®. This shall also apply if igus® has agreed to an electronic data interchange. igus® shall not be liable for system failures or transmission errors during an electronic data interchange.
III. Prices
Prices shall be ex works excluding freight, customs duties, importing ancillary levies and packaging plus VAT at the applicable rate unless agreed otherwise. In the case of new orders or follow-up orders, igus® shall not be bound to the previous prices. Unless agreed otherwise, the prices shall be valid only for the agreed delivery quantities, delivery batch sizes or minimum order quantities and shall require their fulfilment.IV. Delivery and Acceptance Obligations
1. Delivery dates shall not be fixed dates unless they have been expressly designated and agreed as such. Delivery dates shall begin to run after the receipt of all documents required for the execution of the order, as well as the payment of any agreed down payment and any agreed supply of materials from the customer. If the delivery becomes impossible through no fault of igus®, the delivery date shall be considered met upon notification of the readiness for shipment.2. Unless a fixed date has been agreed, igus® shall only be in default after receipt of a written warning letter and the lapse of a grace period of at least 48 hours. If, after the lapse of the grace period, no delivery has been made due to reasons for which igus® is responsible, then the customer shall be entitled to demand default damages, or to withdraw from the agreement if the customer, when setting the grace period, notified igus® of the rejection of the contractual performance in writing. Except in cases of gross negligence or intent by igus®, any default damages shall be limited to a maximum of 5% of that portion of the delivery which has not been timely delivered.
3. In the case of call-off orders without specific contractual terms, production batch sizes and acceptance dates, igus® may request a binding determination in this regard by no later than three months after the order has been confirmed. If the customer does not meet such request within three weeks’ time, then igus® shall be entitled to set a two-week grace period and, after such grace period lapses, to withdraw from the agreement or reject the delivery and demand damage compensation.
4. If the customer does not fulfil their acceptance obligations, then igus® shall, notwithstanding its other rights, not be restricted by any regulations governing self-help sales but shall rather have the right to sell the delivery goods to a third party after having notified the customer in advance of its intention to do so. If igus® takes back the delivery goods as a goodwill gesture, they shall be required to be in flawless condition, in their original packaging and delivered freight-paid within an agreed timeframe. igus® shall be entitled to charge appropriate costs for the expenses which it incurs by taking back the goods.
5. If an agreement is terminated by the customer for reasons for which igus® is not responsible, the customer shall be obliged to accept all finished products in the quantities already ordered or approved at the agreed prices as well as all unfinished products against reimbursement of the costs incurred by igus® for their production.
V. Force Majeure
1. Force majeure events shall release igus® from its contractual performance obligations for their duration. Force majeure events shall be considered to be particularly (a) natural catastrophes such as fires, floods, earthquakes, hurricanes or other extreme natural events (b) civil unrest, wars, sabotage, terror attacks, epidemics or pandemics and other similar unforeseeable and unavoidable events (c) strikes, lock-outs and other measures within the parameters of labour struggles (d) electrical power outages or the failure of telecommunications lines (e) measures issued by the lawmakers, the government or by courts or government agencies regardless of their legality. Force majeure events shall also include raw materials shortages or delays or bottlenecks in the delivery of raw materials or replacement parts or in the availability of transportation if and insofar as they have been caused by (i) a force majeure event suffered by a supplier of igus® or (ii) severe market disruptions or (iii) are based upon the fact that a supplier of igus® has discontinued the production or delivery of a raw material or of replacement parts owing to reasons for which igus® is not responsible.2. In the case of force majeure events, which are not just temporary but make it permanently impossible for igus® to perform its contractual obligations or – duly taking into account the customer’s interests – make it unreasonable for igus® to perform its contractual obligations, both igus® and the customer shall be entitled to withdraw from the portion of the agreement which has not yet been fulfilled.
3. The customer shall be entitled to retain any payment for goods and services that igus® shall not be obliged to deliver or render as the result of a force majeure event until such event ends. igus® shall not be liable for any damages or costs incurred by, or as a result of, any force majeure event.
VI. Packaging, Shipping, Transfer of Risk
Unless agreed otherwise, igus® shall choose the packaging, shipping method and shipping route in its own best discretion. Even in the case of freight-paid delivery, the risk shall be transferred to the customer when the goods leave the igus® factory. In the case of delays in the shipment due to reasons for which the customer is responsible, the risk shall be transferred upon the notification of the readiness for shipment. Upon the customer’s written request, the goods shall be insured at the customer’s expense against warehousing, breakage, transport damage and fire damage.VII. Reservation of Ownership
1. The goods delivered by igus® (Reserved Goods) shall remain the property of igus® until all payment claims which igus® has against the customer have been settled in full. Insofar as the value of the security rights exceeds the amount of all secured payment claims by more than 15%, igus® shall, upon the customer’s request, release a corresponding portion of the security rights; in the case that such a release is made, igus® shall be entitled to choose between the various security rights.2. During the reservation of ownership, the customer shall be forbidden from pledging the goods or assigning them by way of security, and the resale thereof shall be permitted only in the course of customary business transactions and only subject to the condition that the customer has likewise agreed on a reservation of ownership with its own customer in accordance with the provisions of this Section VII.
3. In case of a resale of the Reserved Goods by the customer, the customer hereby assigns any future payment claims from the resale with all ancillary rights for security purposes to igus® without any additional special declarations being required. In case the Reserved Goods are resold together with other goods without a separate price being indicated for the Reserved Goods, the customer hereby assigns the portion of the overall payment claim to igus® that corresponds to the net price for the Reserved Goods invoiced by igus®.
4. The customer shall be permitted to process the Reserved Goods or to mix or combine them with other goods. Any processing shall be done for igus®; in the case of a combining or a mixing of the Reserved Goods with other goods not belonging to igus®, igus® shall be entitled to the co-ownership to the new goods in a ratio that equals the ratio of the net price of the mixed or combined Reserved Goods invoiced by igus® to the value of the rest of the goods at the time of the mixing or combining. The new goods created through the processing, combining or mixing shall be considered Reserved Goods. The provision regarding the assignment of the payment claim in accordance with the aforementioned Clause 3 shall also apply to the new goods; however, the assignment shall be made only up to the amount of the net price of the processed, combined or mixed Reserved Goods invoiced by igus®.
5. Until revocation thereof is made, the customer shall be authorised to collect the payment claims assigned to igus® for security purposes. In the case of an important reason – particularly in the case of payment default, the discontinuation of payments, the opening of bankruptcy proceedings or justified indications of excessive debt or looming insolvency upon the customer’s part –, igus® shall be entitled to revoke the customer’s authorisation to collect the payment claims. igus® shall be entitled at any time to disclose the assignment of security or to demand the disclosure thereof by the customer.
6. In the case of seizures, confiscations or other third-party disposals or interventions, the customer must promptly notify igus® thereof. Upon igus®’s request, the customer shall be obliged to provide igus® with all information and documents required for the assertion of igus®’ rights against the customer’s end customer.
7. If igus® exercises its right of rescission, the customer shall be obliged to return the Reserved Goods. Taking back the Reserved Goods or asserting the reservation of ownership shall constitute no rescission of the agreement unless igus® has expressly declared this.
VIII. Obligations to Examine and Lodge Notifications of Defects, Liability for Defects
1. The customer shall be obliged to promptly inspect the delivered goods upon their receipt for obvious defects and transport damage. Obvious defects shall also include the absence of manuals as well as the delivery of wrong goods or insufficient quantities. Such obvious defects must be reported in writing to igus® within two weeks after the delivery has been made. In the case of hidden defects, the defect must be reported promptly upon its discovery. In the case of non-compliance with the obligation to examine and lodge notifications of defects, the goods shall be deemed to have been approved with regard to the relevant defect.2. Defects in the delivered goods – including the manuals – shall be remedied within the statute of limitations period after the customer has notified igus® of the defect. At igus®’ option, igus® may either deliver a non-defective replacement part or repair the defect at its own expense. In case of a replacement delivery the customer shall be obliged to return the defective goods to igus®.
3. If the defect cannot be remedied within an appropriate timeframe, or if the rectification or the replacement delivery was unsuccessful for other reasons, the customer may, at its option, demand the reduction of the purchase price or withdraw from the agreement. A failure of the rectification attempt may only be assumed if (i) igus® has been granted sufficient opportunity to make a rectification, or a replacement delivery, without the desired success having been attained, or (ii) the rectification or the replacement delivery is impossible, or (iii) the rectification or the replacement delivery has been rejected or unreasonably delayed by igus®, or (iv) justified doubts exist as to the chances of success of the rectification or replacement delivery, or (v) the rectification or replacement delivery is unreasonable for other reasons.
4. The statute of limitations period shall be 24 months after the transfer of risk.
5. Decisive for the quality and design of the products shall be the outturn samples, which are presented to the customer upon igus®’s request for testing purposes. The assurance of specific features of the delivery goods and for the performances of moulds shall require written confirmation in the order confirmation. The reference to technical norms or standards shall serve merely as a product description and shall not constitute a quality guarantee. If igus® has advised the customer outside the scope of igus®’ contractual performance, igus® shall be liable for the functionality and the suitability of the delivery goods only if and to the extent igus® has expressly given a quality assurance in writing. The state of the technology at the time that the order is accepted shall be decisive.
6. In cases of supply chains where the end customer is a consumer igus®’ recourse liability shall derive from applicable mandatory statutory law. igus® shall not be liable under goodwill arrangement that have not been approved by igus®. igus®’ liability in connection with recall campaigns is limited to recall campaigns that have been mandatorily ordered by the competent authorities; igus® shall not be liable for voluntary recall campaigns.
IX. General Liability Restrictions
1. In all cases in which igus®, in deviation from the above provisions, is obliged to pay damage compensation or to reimburse expenditures under contractual or statutory provisions, igus® shall be liable only if and to the extent igus® or the person(s) whom igus® uses to perform its obligations have acted intentionally or grossly negligently or caused loss of life, physical injury or damage to health. The strict liability under the German Product Liability Act as well as the liability for the fulfilment of a quality guarantee shall remain unaffected.2. Otherwise, igus® shall be liable for simple negligence only in the case of the violation of essential contractual obligations whose fulfilment is essential for the proper execution of the agreement and upon whose fulfilment the contractual partner may rely (cardinal obligations). In this regard, igus®’ liability shall be limited to the contractually-typical and foreseeable damages; in determining the amount of the damage claims to be fulfilled by igus®, the type, scope and duration of the business relationship, any contributory cause and fault committed by the customer and any particularly unfavourable installation situation of the goods must be appropriately taken into consideration. In particular, the damage, costs and expenditures to be borne by igus® must be in a reasonable proportion to the value of the goods. Applying these principles, igus®’ liability shall be limited to the lower amount of the two following amounts: (a) The amount equalling three times the turnover (net) made by igus® with the customer in the last 12 months before the damage event occurred, or (b) the amount of EUR 1,000,000.
3. If products supplied by igus® repeatedly show defects of the same type, the determination of the scope of igus®’s liability based upon a reference market procedure shall require the underlying reference market to encompass at least 40% of the total market.
4. None of the above provisions shall mean or mean to result in any change in the burden of proof to the customer’s detriment.
X. Payment Terms and Conditions as well as Payment Default
1. Unless agreed otherwise, the purchase price for deliveries or other services shall become payable with a 2% discount within 14 days, and without any discount within 30 days after the invoicing date. The granting of a discount shall require all previously-payable, undisputed invoices to be fully settled.2. Agreed payment terms are subject to a positive credit check. igus® reserves the right to carry out a credit check during the term of the contract. If this leads to a different assessment of the creditworthiness of the customer compared to the time of the conclusion of the contract, igus® can demand that the payment conditions be adjusted accordingly, in particular that payment terms are shortened, advance payments are to be made or securities are to be provided.
3. If payment is not made until the agreed payment date, interest shall be charged at the rate of nine percentage points above the respective base interest rate; igus®’s right to document a higher payment default damage amount shall remain unaffected.
4. If the customer is in payment default, igus® shall be entitled to withhold any outstanding deliveries or to demand advance payments as well as, after setting an appropriate grace period, to withdraw from the agreement or demand damages for non-performance.
5. The customer may offset or assert a right of retention only if its claims are undisputed or have been awarded by a final judgment.
XI. Tools and Sampling
1. The tools used for the manufacture of the contractual goods shall always be and remain the sole property of igus®, even if it was exclusively manufactured or acquired on behalf of the customer for certain products, and irrespective of whether the customer has contributed to the costs of the manufacture or acquisition of the tools.2. Any tool and/or set-up costs – including proportional costs – to be paid by the customer shall become payable after presentation of the initial samples of the agreed and proper quality and corresponding documentation in accordance with the AIAG (Automotive Industry Action Group), VDA (Verband der Automobilindustrie e.V.) [German Automobile Industry Association] or the industry standard without a formal approval from the customer or the end customer being required.
3. The costs for a one-time sampling process shall not include the costs for testing and processing devices as well as for changes requested by the customer. The costs for any additional sampling processes that become necessary for reasons attributable to igus® shall be borne by igus®.
XII. Provision of Materials
If it has been agreed with the customer that the customer shall supply materials, such materials must be supplied at the customer’s expense and at the customer’s risk with an appropriate quantity surcharge of at least 5% in a timely and flawless fashion. In case of non-compliance with this obligation, the delivery date shall be ap-propriately extended. Except in cases of force majeure, the customer shall pay any additional costs – particularly for production disruptions – that are incurred by igus® as the result of the materials not being timely supplied or not being supplied in a manner as agreed.XIII. Proprietary Rights
1. All intellectual property rights arising as a result or in connection with the manufacture and delivery of contractual products by igus®, particularly to models, moulds and devices, drafts and sketches designed by igus® or by third parties on igus®’ behalf, shall be the sole property of igus®, unless explicitly agreed otherwise in writing, in particular in cases of joint development projects or cost-based development orders.2. If igus® has to deliver according to the customer’s sketches, models, samples or using parts provided by the customer, then the customer shall ensure that third-party proprietary rights are not violated. The customer shall indemnify igus® from any third-party claims and shall compensate igus® any damage incurred. If igus® is prohibited from manufacturing or delivering contractual products by a third party on the basis of proprietary rights of such third party, then igus® shall be entitled, without any obligation to examine the legal situation, to discontinue any work. Any sketches and models provided to igus® which have not resulted in an order shall be returned upon request; otherwise, igus® shall be entitled to destroy them three months after rendering its offer.
