General Terms and Coditions
(Please note: This translation is made to facilitate the reading and the understanding only – in case of a contradiction to the version in German Language only the German GTC are prevailing)
§ 1 General
Our deliveries, services and offers are made based solely on these General Terms and Conditions insofar as the Buyer is a merchant, a legal entity under public law or a special asset under public law. Conflicting confirmations or orders from the Buyer referring to the Buyer's own General Terms and Conditions or Sales Terms are herewith contradicted.
§ 2 Offers, prices, delivery deadlines
1. The offers are subject to change.
2. The information, drawings, illustrations and performance descriptions contained in brochures, catalogues, price lists or the documents belonging to the offer are customary approximate values. They do not constitute any guarantee of quality or durability; unless these would have been explicitly agreed by contract.
3.The worksheet H 10 guidelines "Gratings in industrial construction" for invoicing apply unless otherwise agreed, which can be made available on request to the Buyer.
4. If more than four months exist between entering into the contract and the agreed delivery date and if the costs for wages and salaries, material, packing materials, freight, taxes or fees upon which its calculation is based have increased between the conclusion of the contract and acceptance, the price agreed may be increased appropriately as required, to cover the relevant additional costs.
5. If, despite proper provision, the Seller does not receive, does not receive correctly, or does not receive in due time a delivery of materials or services from its sub-suppliers due to reasons for which it is not accountable, or if events of force majeure occur, the Seller shall notify its Buyer in good time in writing. In such case, the Seller shall be authorised to postpone the delivery or service for the duration of the obstruction, or to withdraw in whole or in part from that part of the contract not yet fulfilled if it has met its foregoing duty to provide information and have not assumed a procurement or production risk. Events of force majeure are strikes, lock-outs, official intervention, power shortages and shortages of raw materials, transport bottlenecks through no fault of the Seller, company obstructions not due to the Seller e.g. fire, water and damage to machinery and any other obstructions that considered objectively were not caused by the Seller's negligence.
6. If a delivery or performance date or time limit for delivery or performance is agreed with binding force and the agreed delivery or performance date or the agreed time limit for delivery or performance is exceeded by more than four weeks due to the above events in § 5, the Buyer shall be authorised to withdraw from that part of the contract not yet fulfilled. The Buyer shall have no further rights, in particular no rights to claim damages in this case.
7. If a fixed delivery date or period is agreed, the due date of the delivery or the beginning of the delivery period first requires the technical clarification of the respective contract; the technical clarification is understood as a return of the approved outline / layout plans including BOMs to the Seller, where the receipt of such documents is to be applied; the Seller shall immediately notify the Buyer of the receipt of the documents. The delivery period is deemed to have been complied with if the goods leave the factory/storage or one of its vicarious agents or if dispatch is not possible, their readiness for dispatch has been notified to the Buyer.
8. If models and samples are delivered, their qualities are not guaranteed by the Seller.
9. Packing costs shall be borne by the Buyer.
10. Cost estimates, drawings, detailed technical papers and similar documents, the Seller reserves the title. These documents can only be made available to outside third parties by the Buyer. They are to be returned to the Seller of the order is not placed, immediately upon request, including any copies made in the meantime.
§ 3 Delivery and delay in delivery
1. Delivery free destination or free construction site means delivery without unloading. The unloading must be promptly and appropriately carried out by the Buyer.
2. Transport insurance is only concluded upon written request and is at the expense of the Buyer.
3. Partial deliveries are permitted, provided they are reasonable for the Buyer.
4. If the Seller cannot conclude a commercial credit insurance for the Buyer or such is terminated, the Seller performance is only if the Buyer provides another security of the same value. The Seller will immediately inform the Buyer thereof. In this case, the Seller is entitled to delay the delivery or rendering of service, until the Buyer has provided a corresponding security.
5. A breech of contract rule causing a penalty for the burden of the Seller is only recognised if such is individually negotiated with the Seller. This requires the written consent of the Seller.
6. If the Seller is in default, then its liability for damages is limited to 5 percent of the purchase price in cases of simple negligence. Further claims of the Buyer shall remain unaffected.
§ 4 Payment
1. With cash sale, the purchase price is due immediately upon receipt of the goods without deduction for the payment.
2. The sale on deferred terms requires the separate written agreement where the requirement for written form of evidence is used.
3.If the goods are ready for shipment and the shipment or acceptance is delayed for reasons for which the Seller is not responsible, then the purchase price is due upon receipt of the notification of shipment readiness by the Buyer and the Seller is entitled to issue the invoice.
4. If cash discount was agreed, this shall only be admissible if the Buyer has met all other liabilities older than 30 days arising from the business relationship with the Seller. Only the value of goods without freight, unloading and assembly costs is eligible for a cash discount. Services are not eligible for a cash discount. If partial deliveries or partial payments have been agreed, the cash discount entitlement does not apply also with regard to the partial deliveries if the last partial delivery has not been paid within the agreed cash discount period.
5. If the Buyer is not able to meet the existing payment obligations at the time of they are due, if the Buyer threatens to become insolvent or if the covering of a failure is not possible through the conclusion of a commercial credit insurance or a granted credit approval is revoked, the Seller is entitled to make further deliveries and services available only after prior payment in kind or provision of a security for the consideration. The Seller sets a reasonable period of time for the Buyer. If the Buyer does not fulfil the legitimate request of the Seller within this period, the Seller can withdraw from the contract and demand damages. If the conditions of Clause1 are met, the Seller is also entitled to immediate payment of all outstanding (also deferred) invoices and require against return as payment taken change cash payment or security.
6. In addition, the Seller is entitled to withhold deliveries to the Buyer as long as all claims due against the Buyer are not paid.
7. The Buyer shall check the invoices and account statements on their accuracy and completeness. Invoices of the Seller are deemed to have been accepted if there are not contradicted in writing within a period of 30 days after the invoice date. This, of course, also applies to the account statements.
8. The Buyer has no right of retention.
9. The Buyer is only entitled to offset the claims of the Seller if his counterclaims are undisputed or legally binding.
§ 5 Passing of risk, warranty and liability
1. The risk passes to the Buyer as soon as the goods have been handed to the carrier or forwarding agent or have left the Seller's premises for the purpose of dispatch. If the goods are ready for dispatch or delivery is delayed or the shipment or acceptance does not take place for reasons for which the Buyer is responsible, the risk passes to Buyer when the Buyer receives notice of readiness of dispatch.
2. If the goods are ready for dispatch or delivery is delayed or the shipment or acceptance does not take place for reasons for which the Buyer is responsible, the risk passes to Buyer when the Buyer receives notice of readiness of dispatch. From this day on, the Buyer shall bear the storage costs and other expenses for each month or part thereof from readiness for dispatch, unless the Buyer can prove that the actual costs and expenses have been lower.
3. The Buyer must observe the obligations of § 377 of the German Commercial Code. The transport company must be notified of any recognisable defects at the time of delivery and must arrange for the defects to be documented. Complaints must contain a detailed description of the defect. Notification which is not made on time thereby precludes any guarantee claim of the Buyer.
4. When handling, processing, combining or mixing with other goods begins, the products delivered shall be deemed approved by the Buyer according to the contract. The same applies in the case of a forwarding from the original destination.
5. The Seller's liability for breaches of duty due to material defects shall be excluded if defects and the resulting damages are not proven due to faulty material, faulty construction or faulty execution or faulty assembly instructions. Warranty and liability shall be excluded in particular for the consequences of incorrect use (especially where use is not state-of-the art and in disregard of the directions for use), where the Buyer makes modifications or carries out repair work incorrectly or there is wear and tear of the goods, excessive use or inappropriate equipment and the consequences of chemical or electrolytic influences that do not correspond with expected average standard influences.
6. Any right of recourse the Buyer may have against the Seller when the goods are resold shall only exist if the Buyer has not reached any agreements with his Buyer which exceed statutory claims based on defects.
7. The statute of limitations period for defect claims is 12 months. This does not apply to building contracts, which have been used for a building structure commensurate with their normal use and have caused defects therein or for claims due to injury to life, limb or health or in cases of gross negligence of the Seller.
8.The above provisions in § 5 No. 7, will not be applicable to the sale of objects which have already been used; these are delivered under exclusion of any warranty claims. The aforementioned limitation to the statute of limitations with used objects does not apply to claims for injury to life, limb or health or in cases of gross negligence of the Seller.
9. As far as the article to be supplied is only specified according to generic terms, the Seller will be only liable for compensation in damages in the case of a defect if he does not verify that he is not responsible for the non-performance, delay in delivery or the defectiveness of the article.
10. Furthermore, the liability of the Seller for damages is as follows:
10.1. Claims of the Buyer against the Seller and his vicarious agents for damages are excluded; this does not apply to damages resulting from the injury of life, body or health. In addition, the liability exclusion will not apply if the damage is based on a grossly negligent breach of the Seller or one of his legal representatives or vicarious agents.
10.2. This liability exclusion does not apply in the case that the injury is caused by a breach of cardinal contractual duties. In this case the Seller is only liable for damages up to the amount that it was foreseeable at conclusion of the contract or during contract negotiations as a possible consequence of the breach of obligation or under consideration of the circumstances which the Seller knew or should have been known to be foreseeable.
10.3. Material contractual obligations are obligations that protect the legal positions of the Buyer, which are material to the contract and which have to be granted to the Buyer under the contract in terms of subject matter and purpose. Material contractual obligations are also obligations whose fulfilment makes the due performance of the contract possible in the first place, which the Buyer regularly relies on and may rely on compliance with such obligations.
10.4. Mandatory legal liability according to the provisions of the Product Liability Act also remains unaffected.
10.5. A reversal of the burden of proof is not associated with the aforementioned provisions in § 5 No.10.
11. The Seller does not acknowledge the exclusion of § 341 para. 3 BGB in any case.
§ 6 Retention of title
1. The Seller reserves the right to title of the delivered goods until full and final payment all claims arising from the delivery contract. This also applies to all future deliveries, even if the Seller does not always expressly refer to this.
2. The Buyer is obliged to treat the goods with care until such time as the title is transferred. Until such a time as the ownership has been transferred, the Buyer must notify the Seller immediately in writing if the delivered goods are seized or exposed to any interference by third parties. As far as the third party is not in the position to refund the legal and extra-judicial costs of a legal action in accordance with § 771 ZPO, the Buyer shall be legally responsible for the deficiency suffered to the Seller.
3 The Buyer is entitled to resell the reserved goods in the ordinary course of business. The Buyer cedes to the Seller any claims by the new customer arising from the resale of the goods in the amount of the mutually agreed final invoice amount (including VAT). This assignment shall apply regardless of whether the purchased goods have been resold without or after processing. The Buyer remains entitled to collect the receivables even after this assignment. The Seller's authority to collect the claim himself remains unaffected. However, the Seller agrees not to collect the accounts receivable as long as the Buyer complies with his payment obligations from the collected proceeds, does not default in payment and, in particular, no petition for the institution of insolvency or composition proceedings is filed or cessations of payment exist.
4. Any processing or transformation of the goods by the Buyer should always be made in the Seller's name and on the Seller's behalf. In this case, the Buyer's vested right in the goods continues with the processed article. If the purchased item is processed with other items not belonging to the Seller, the Seller shall acquire joint ownership of the new item in proportion to the objective value of our goods to the other processed items at the time of processing. The same applies in the case of mixing. If the mixing is done in such a way that the Buyer's item is to be regarded as the main item, it is deemed agreed that the Buyer transfers proportional joint ownership to the Seller and safeguards the sole ownership or co-ownership for the Seller. To secure the Seller's claims against the Buyer, the Buyer shall also assign to the Seller such claims accruing to him from combination of the goods subject to retention with real property against a third party; the Seller already accept this assignment with immediate effect.
5. The Seller undertakes to release any securities due to him to the extent that their realisable value exceeds any secured claims which have not yet been met by more than 10%.
§ 7 Choice of law, place of performance, place of jurisdiction
1. German law applies exclusively with the exclusion of the UN Sales Convention.
2. Place of performance for all obligations arising from the contractual relationship is the headquarters of the Seller.
3. Place of jurisdiction for all claims of the contractual parties (also for bills of exchange and cheques) is the court responsible for the Seller's registered headquarters.
Stadtlohn, January 2015