1.1 The present terms and conditions (the "Conditions") shall apply to all products (the "Products") supplied by Atlantic GmbH ("ATLANTIC") to its customers (the "CUSTOMER" or "CUSTOMERS").
1.2 Any terms and conditions that deviate from these Conditions shall not become binding for ATLANTIC except when expressly accepted by ATLANTIC in writing. Any general terms and conditions stipulated by the CUSTOMER are excluded as part of the agreement with the CUSTOMER.
2. Orders and Offers, Samples and Specimens
2.1 Orders placed by the CUSTOMER for Products shall not be binding upon ATLANTIC unless accepted by ATLANTIC in writing. Acceptance of the CUSTOMER's orders for Products shall be at the discretion of ATLANTIC.
2.2 Unless expressly stated otherwise by ATLANTIC, all offers for the supply of Products issued by ATLANTIC to the CUSTOMER shall be non-binding.
2.3 The CUSTOMER shall call-off Products ordered via call-off order within 12 months from the date of ATLANTIC’s acceptance of the call-off order. Upon expiry of the aforementioned 12-months period, ATLANTIC shall have the right to deliver and to charge any remaining quantity of Products not called-off by the CUSTOMER.
2.4 Specimens and sample wheels will only be delivered upon receipt of a written order, and against charge.
3.1 ATLANTIC reserves the right to increase or decrease the quantity for each type of Product ordered by 10%; in such an event the quantity actually delivered will be charged at the agreed unit price.
3.2 ATLANTIC reserves the right to make partial deliveries, in the context of what is reasonable for the CUSTOMER, and to invoice for these separately.
3.3 Except if agreed otherwise between ATLANTIC and CUSTOMER, all shipments of Products to CUSTOMER will be “FCA Bonn” – Incoterms 2010.
3.4 Delivery dates and/or delivery periods for Products shall not be binding upon ATLANTIC, unless expressly accepted by ATLANTIC as binding in writing.
3.5 ATLANTIC cannot be held responsible for a delayed or missing delivery, if such an incident has been caused as a result of circumstances beyond ATLANTIC's control. If delivery is delayed beyond the agreed delivery date for a period of more than 3 months for reasons not attributable to ATLANTIC, each of the parties shall have the right to rescind the contract. Any further claims for compensation by the CUSTOMER are excluded.
3.6 The Products are packaged at the discretion of ATLANTIC, for which a separate charge is made. An obligation to accept returned packaging is excluded.
4. Prices and Payment Terms
4.1 Except if agreed otherwise between ATLANTIC and CUSTOMER in writing, all prices for Products shall be quoted, invoiced and paid in Euros.
4.2 Except if agreed otherwise between ATLANTIC and CUSTOMER in writing, payments by CUSTOMER will be effected within 10 days from the date of ATLANTIC’s respective invoice with 2 % discount or within 30 days from the date of ATLANTIC’s invoice net (without deduction).
4.3 The CUSTOMER is not entitled to offset any sum which he/she owes to ATLANTIC from any sum which ATLANTIC owes to the CUSTOMER, or to withhold payment in view of claims by the CUSTOMER, unless the respective claim by the CUSTOMER has been accepted by ATLANTIC or evidenced by a final court ruling.
5. Security Interests
5.1 Title to the property in the Products delivered by ATLANTIC shall only be transferred to the CUSTOMER when ATLANTIC has received full payment of all amounts owed by the CUSTOMER in accordance with the business relationship between ATLANTIC and the CUSTOMER.
5.2 The CUSTOMER is entitled, in the context of customary business operations, to sell and transfer ownership of the Products to a third party. However, in order to secure his/her liabilities for all payments to ATLANTIC under the individual purchase contracts, the CUSTOMER herewith assigns to ATLANTIC all present and/or future receivables due from a resale of the Products to third parties in the invoiced amount, including value added tax. The CUSTOMER is authorised to collect accounts receivable as a fiduciary agent of ATLANTIC. The right of ATLANTIC to collect its own receivables remains unaffected. As long as the CUSTOMER complies with his/her payment obligations, however, ATLANTIC will not collect the assigned receivables.
5.3 Any processing and/or production of Products by the CUSTOMER shall always be conducted on behalf of ATLANTIC. If the Products are processed or manufactured together with goods belonging to third parties, ATLANTIC shall acquire co-ownership rights with respect to the processed or manufactured goods, with a co-ownership share equal to the value of the Products in proportion to the value of the processed or manufactured goods. In addition, the provisions of clause 5.2 apply accordingly.
5.4 If the Products are intermingled with goods owned by third parties, ATLANTIC shall acquire co-ownership rights with respect to the intermingled goods, with a share equal to the value of the Products in proportion to the value of the intermingled goods. If the intermingling process has been effected in such a manner that the goods are to be regarded principally as goods of the CUSTOMER, the CUSTOMER shall herewith transfer to ATLANTIC a co-ownership share in the goods in the proportion as set out in clause 5.3 above. The CUSTOMER shall safeguard sole ownership or joint ownership of ATLANTIC as a fiduciary agent.
5.5 ATLANTIC shall release any of the securities mentioned in clause 5, if the total value of the securities exceeds the value of payments due by the CUSTOMER by 10 percent or more.
5.6 In the event that any security provided under clauses 5.1 to 5.5 should be invalid and/or unenforceable in any territory to which the Products are supplied by ATLANTIC, the CUSTOMER, upon written request by ATLANTIC, shall be obliged to provide ATLANTIC with a bank guarantee or other equivalent security to secure obligations undertaken in connection with individual purchase contracts concluded between the parties.
6. Warranty for Defects
6.1 Subject to the CUSTOMER's compliance with the terms of clause 6.2 below, ATLANTIC warrants to the CUSTOMER that, for a period of twelve (12) months from delivery, the Products furnished hereunder will be of merchantable quality and free from defects in material, workmanship and design. Any product which does not comply with these assurances is considered a "defective product".
6.2 The CUSTOMER shall inspect and check all delivered Products immediately upon receipt as to whether or not they exhibit any apparent defects. The CUSTOMER shall promptly notify ATLANTIC of any defects detected after such a delivery inspection. In the event that the CUSTOMER becomes aware of a hidden defect (i.e. a defect that is not apparent upon inspection of the delivery), the CUSTOMER shall promptly notify ATLANTIC upon becoming aware of such a defect. ATLANTIC shall not accept any liability for product defects (and the Products shall be deemed accepted as free from defects), if the CUSTOMER fails to provide prompt notice of a defect in accordance with the preceding regulations.
6.3 If a Product has a defect attributable to ATLANTIC pursuant to clauses 6.1 and 6.2 above, ATLANTIC – at its sole discretion – shall remedy such a defect by either
(a) replacing or repairing the defective Product or
(b) reducing the purchase price for the defective Product or
(c) issuing a credit note to the CUSTOMER that is equal to the purchase value of the defective Product.
If ATLANTIC fails to remedy a defect in accordance with the above mentioned terms, or refuses to remedy such a defect within a reasonable time after having received written notice by the CUSTOMER, the CUSTOMER shall be entitled to rescind the individual purchase contract with respect to the defective Product, or to demand a reduction of the purchase price for such a defective Product.
6.4 The warranties covered in article 6 are conclusive. Further liability for material defects will not be assumed by ATLANTIC. Claims for damages and/or reimbursement of costs by the CUSTOMER may only be stipulated in accordance with the provisions of clause 7 below.
7. Limitation of Liability for Damages
7.1 Unless expressly provided otherwise in these Conditions, ATLANTIC shall not be held liable for any claim for damages by the CUSTOMER, for whatever legal reason, including infringement of duties arising from the contract or in tort, and ATLANTIC shall not be held liable for loss of profit or revenue, loss of use of the Product, costs of capital, claims by business partners of the CUSTOMER and/or any special, indirect, incidental or consequential damages whatsoever.
7.2 The disclaimer pursuant to clause 7.1 above shall not apply
(a) in the event of intentional and/or gross negligent behaviour on the part of ATLANTIC and/or its employees or agents;
(b) in the event of death or personal injury and/or damage to a person's health;
(c) to the extent that ATLANTIC shall have guaranteed a specific characteristic of a Product; and/or
(d) to the extent that ATLANTIC is liable for personal injury and/or damage to private property in accordance with the mandatory provisions of the applicable product liability law.
7.3 Furthermore, the disclaimer pursuant to clause 7.1 above shall not apply in the event of a material breach of essential contract obligations by ATLANTIC and/or its employees or agents. In the event of such a breach, however, ATLANTIC's liability shall be reduced to the amount of damage foreseeable and typical to the contract. ATLANTIC's liability pursuant to clause 7.2 above shall remain unaffected.
8. Applicable Law and Jurisdiction
8.1 These Conditions shall be construed in accordance with and governed by the laws of Germany, excluding the application of the UN-Convention on the International Purchase and Sale of Goods.
8.2 The place of jurisdiction for any disputes related to, or in connection with, individual agreements between the CUSTOMER and ATLANTIC shall be Bonn, Germany. ATLANTIC, however, is entitled to instigate legal proceedings against the CUSTOMER at principal place of business of CUSTOMER. Except for preliminary injunctions, the agreement on jurisdiction set forth in this clause 8.2 shall be conclusive.
9. Final Provisions
9.1 Deviations from these Conditions require confirmation in writing. This also applies to amendments of this written clause.
9.2 If one or more provisions of these Conditions is or becomes, invalid, the validity of the remaining provisions shall remain unaffected.