General Contractual Terms and Conditions (GTC)

Transcription

1 1 Application The general contractual terms and conditions below (hereinafter referred to as GTC ) shall exclusively apply to entrepreneurs within the meaning of 14 of the German Civil Code (BGB) (natural persons or legal entities or a legally responsible business partnerships) as far as those act in pursuance of their commercial or self-employed professional business. These GTC shall govern the prerequisites and contents of our delivery agreements, their handling and the related payments. These GTC shall also apply to all future businesses with the client. Any of the client s deviating contractual terms and conditions shall only be acknowledged by us on condition we expressly agree. Oral, telephonic or other special agreements shall require written confirmation to become effective. Then, they shall prevail any general contractual terms and conditions. 2 Conclusion of agreement All parts of our quotations are not legally binding. We shall only be contracted after having confirmed the conclusion of agreement in writing. 3 Prices Our prices are based on the cost situation at the time the agreement is concluded. In case of an alteration to the cost situation, especially an alteration to steel prices, we reserve the right of the relevant modifications. Then, the price on the day of delivery according to our price list shall apply. Prices are meant in EURO plus legal vat. Should order-related costs (e.g. for raw material, consumables, wages, freight charges or public charges) be subject to substantial alterations after the conclusion of agreement, we shall be entitled to alter the price in due consideration of the alteration to cost using equitable discretion. Further to that, 313 German Civil Code shall be excluded. 4 Delivery deadlines Delivery deadlines are deemed stipulated only approximately. The period starts with our confirmation of order, however, not before all details of design have been clarified and all requirements to be met by the client have been met, especially not unless all documents required for the execution of the order have been supplied as well as all prepayments stipulated have been implemented. The delivery deadline is deemed met, when the goods purchased have left the factory by the expiry of the delivery deadline or in case of the message of readiness for dispatch in due time dispatch is impossible without our fault. The date of delivery shall be the day of dispatch; in case of a stipulated pick-up by the client it shall be the day the goods are collected or in case of dispatch the relevant day shall be the day the message of readiness for dispatch is sent. In case of an order on call the delivery deadline shall begin on the working day following the call. We shall be entitled to early delivery or partial delivery. We cannot be held responsible for delay in delivery due to force majeure or unforeseen events which we cannot avert despite the exercising of care being reasonable because of the circumstances of the individual case (e.g. disruption of operations, effect of industrial action), even if mandatory deadlines and terms were stipulated, and this includes such delays which occurred with our suppliers and their subsuppliers. In such cases the delivery deadline is extended appropriately. We shall inform our client as soon as possible about circumstances which are followed by considerable delays of deliveries. P.W. LENZEN GmbH & Co. KG Edition: October / 5

2 If a delivery deadline is exceeded by us for more than four (4) weeks, whatever the reason may be, the client shall grant an appropriate period of grace and can - after a potential expiry of that period withdraw from the contract, if fulfilment is no longer a matter of interest for him. The 323 II, III, IV, 324 German Civil Code shall be excluded. We shall only be liable for compensation due to non-fulfilment should we be responsible for intent or gross negligence. In such cases the title to compensation shall be limited to compensation for that damage which was imaginable at the time of the conclusion of contract. Should delivery on call or according to the client s specification be implemented and that call or specification be belated, we shall after the deadline turned out to be ineffective - be entitled at our option to organise the dispatch ourselves and deliver the goods ordered, claim compensation due to non-fulfilment or withdraw from the agreement. Excess delivery or reduced delivery may be permitted for up to 10 %. Deviations concerning dimensions, weight and grade shall be permitted in compliance with DIN or applicable practice. Weights shall be determined by us or our representatives and shall be decisive for calculation. Weight shall be evidenced by the presentation of the weight note. Should weighing not be the usual individual weighing, the total weight of the consignment shall apply. Deviations from the calculatory individual weights shall be distributed proportionally to them. 5 Packing material In the absence of ulterior agreements we shall deliver without packing ex storage place or works. Potential packing material shall be used upon the client s express or tacit wish. Commercial recycling packing shall be made available on loan and remain our property. Should this packing material not be returned to us within two (2) months in good order and condition, carriage prepaid and free of charges, the full cost for the packing material shall be due without delay and without discount. Specific packing material shall be invoiced and cannot be returned. As far as customary in the trade, we shall deliver goods packed and protected against rust; the client shall be charged with the relevant cost. In case of carriage prepaid delivery the prepayment of freight and other charges should only be considered an advance of funds. Packing material which can face the normal challenges of transportation is weighed as well, not invoiced separately and cannot be returned. 6 Dispatch and hazards Hazards are transferred to the client when goods leave our factory or, in case of stipulated pick-up by the client or dispatch to him, are made available to him. If goods are sent to the client upon his wish, the hazard of accidental loss or accidental deterioration shall be transferred to the client when goods are dispatched, however, when leaving the factory / storage place at the latest. This shall apply irrespective of the dispatch of goods being effected from the place of fulfilment or the party carrying freight charges. We can only be held liable for damage due to transport for which we can be held responsible, but which could not be detected externally at the time of reception on condition that a proper recording of facts is submitted to us. If goods are returned for reasons for which we cannot be held responsible, the client shall bear the risk until goods arrive at our factory. Unless prescribed otherwise by the client, the mode of shipment shall be up to us. We cannot accept liability for the most economic kind of dispatch. Unless we have received an instruction concerning the shipping agent, we decide on the shipping company or the carrier. Unless stipulated otherwise, the client pays for the cost of dispatch. Potential payments of freight charges are considered advances of funds at the client s charge. Insurances covering damages or loss shall only be effected upon the client s express wish. If either consignment or shipping of the goods is delayed for a reason for which the client is responsible, we shall be entitled to store goods at the client s cost and risk using equitable discretion, take all actions required for the preservation of the goods and invoice the goods as delivered. The same shall apply when goods reported ready for dispatch are not called within four (4) days. P.W. LENZEN GmbH & Co. KG Edition: October / 5

3 7 Warranty Liability for information on planning, counselling and processing etc. shall only be accepted when we added the special remark of bindingness in writing to the client s written proposals when returning them. Defects in our scope of supply are exclusively defined on the basis of the term defect as being used in the German Civil Code; irrespective of a short legal obligation to give notice of defects obvious defects shall be notified in writing immediately after their detection not later than eight (8) days after the reception of goods. In case of defects justifying a claim we shall decide within the scope of cure whether the defect is to be eliminated or a new item without defect is to be supplied. If the cure fails, the client can decide either in favour of a reduced price or the withdrawal from the contract. Further claims by the client, especially claims for the compensation for consequential damage, shall be excluded, unless our legal representatives, our general management or our senior managers can be held liable should the defect be considered caused by intent or gross negligence. In such cases the title to compensation shall be limited to compensation for that damage which was imaginable at the time of the conclusion of contract. We shall be given the chance to ascertain the defect notified. Upon request goods claimed shall be returned to us immediately. If the client does not meet this obligation or does not follow the state of the art notified by us or acknowledged by himself or performs alterations to the product, any warranty shall become inapplicable. The warranty deed shall be three (3) months after the detection of the defect, but not more than six (6) months after the transfer of risk. We do not accept a guarantee within the meaning of 443 German Civil Code. In individual cases we shall reserve the right to accept the return of goods claimed without compensation delivery with the amount invoiced being credited. 8 Industrial property rights If supplies are based on the client s specifications and third parties industrial property rights are violated by them, the Client shall indemnify us from all claims. In case of violations of the contract by the client the latter s industrial property rights shall not be an obstacle to a contractual utilisation by us. 9 Payments The client shall be obliged to transfer the purchase price to one of our accounts. Any discount shall be illicit. Payment shall be effected not later than thirty (30) days from date of invoice. From the 31 st day after the date of invoice we shall be entitled to interest amounting to 8 % above the relevant base interest rate without giving any further notice of default. Drafts, cheques and any other remittance documents shall only be accepted under reserve and only as payment. The due date of our claim shall not be affected by that. Discount and collection charges shall be at the client s charge. We shall supply goods to clients being unknown to us or insolvent only against cash on delivery or prepayment (at our option). P.W. LENZEN GmbH & Co. KG Edition: October / 5

4 10 Reservation of title We shall reserve retain the title of the goods supplied by us till the complete fulfilment of all claims we are entitled to resulting from the business relationship with the client (current account retention). The client shall have the right to sell goods under reserve in the course of ordinary business. Any other disposals shall be prohibited. The client shall cede all claims resulting from the dispatch of the goods under reserve to us in advance. If the goods under reserve are sold together with foreign objects or used as material within the scope of contracts to produce a work, the cession shall only cover the amount conforming to our co-ownership. The client shall be entitled to collect the amount receivable ceded to us in the course of proper business transactions only. The client shall immediately inform us of third parties seizure of goods under reserve or ceded claims. Cost for a potential intervention shall be borne by him. The above authorisations conceded to the client shall lapse when terms of payment are not met. In that case we shall be entitled to take possession of the goods under reserve. Cost resulting from that shall be at the client s charge. This is no withdrawal from the contract. In that case we shall be entitled to collect the goods under reserve from the client s factory premises or those of a third party upon the latter s permission. Further to that, we shall be entitled to the disclosure of the assignment of claim, should the terms of payment not be met. The client agrees to make required information and documents available to us to enforce the claim ceded. Treatment and processing of the goods under reserve shall be implemented for us as being the manufacturer within the meaning of 950 German Civil Code without obliging us. In case of any processing, compounding and mixing of those goods under reserve with foreign goods by the client we shall be entitled to the co-ownership of the new product; this co-ownership is governed by the ratio of the amount invoiced for the goods under reserve and the amount invoiced for the foreign goods used. As far as our title expires by compounding or mixing the client shall already now transfer to us his industrial property right with respect to the state or new object, videlicet the co-ownership to the amount invoiced for the goods under reserve. Goods shall be stored for us free of charge. In compliance with our co-ownership the new product shall be considered goods under reserve. If the co-ownership or cession based on German law in whose purview the goods are is not legally binding, the collateral conforming to the reservation of title or cession in this area shall be deemed stipulated. Should the cooperation of the client be required, he shall take all actions required for the grounds and preservation of such rights to grant us the collateral required. If the value of the existing collateral exceeds the amount receivable by more than 10 % all in all, we shall be obliged to release collaterals at our option upon the client s demand. If the client sells his claim within the scope of genuine factoring, the amount receivable from the factor shall be ceded to us and the portion of the proceeds shall be transferred to us without delay. In any case, we shall be notified of genuine factoring to allow us to take further protective action, should this be deemed necessary. If that does not materialise, we can withhold (further) supplies. P.W. LENZEN GmbH & Co. KG Edition: October / 5

5 11 Lien Owing to the amount receivable based on the business relationship we shall be entitled to the right of retention as well as a contractual lien on the client s property acquired by us in the course of the business relationship. The right of retention and the contractual lien can also be asserted by us because of amounts receivable from former supplies and other services. The right of retention and a contractual lien shall also be stipulated for the case that the contract item will be brought to us at a later point of time and claims resulting from the business relation exist. The right of retention and the lien shall remain applicable, when one of our amounts receivable is integrated into a current invoice and a balance is struck or acknowledged. Legal liens shall remain unaffected by these provisions. In case of over-collateralisation to the above extent we can proceed conforming to 10, penultimate paragraph. 12 Right of retention / offset Offsets against our amounts receivable shall only be permitted with undisputed or legally established claims. The right of retention or the right to withhold performance exercised by the client shall only be acceptable when the latter declares a right legally enforceable or holds acknowledged counterclaims and such ones which result from a breach of contract with respect to which our legal representatives, our general management or our senior managers can be charged with intent or gross negligence. Claims against us can only be ceded upon our approval. 13 Export certificate If a buyer whose residence is outside the Federal Republic of Germany or his representative collects goods and ships or sends them abroad, the buyer shall have to furnish the export certificate required by the tax office. If that certificate cannot be furnished, the buyer shall have to pay the v.a.t. rate applicable to the amount invoiced before dispatch. 14 Miscellaneous In our business relationship just German law with the UN Convention on Contracts for the International Sale of Goods being excluded shall apply, i.e. the stipulated agreements, especially as amended by our GTC. Should individual provisions in these GTC turn out to be or become ineffective, the remaining provisions shall remain unaffected by that. The contracting parties agree to replace the ineffective provision(s) by an effective settlement which is close to the economic targets. The place of fulfilment and the venue generally conform to the location of our factory or storage place. Responsibility either by the local court or the regional court depends on the amount in dispute. We reserve the right to take action at the client s head office or residence. P.W. LENZEN GmbH & Co. KG Edition: October / 5