General terms of sale and delivery

Transcription

1 General terms of sale and delivery I. General 1. The following general terms of sale and delivery are exclusively valid for all supplies and services provided in the course of business with companies, public legal entities or special funds under public law. Any opposing terms of sale and delivery of the customer, or any terms which differ from ours, are not valid unless we have expressly agreed to them in writing. Fulfilment of a contract by us does not negate the requirement for such written confirmation. 2. Our quotations are not binding. 3. We require the customer to provide all the necessary documents for preparation of the offer and execution of the order. 4. The documents belonging to the offer and confirmation of the order, such as illustrations, drawings, data and performance data, including measurements, weights, technical data and other information relating to condition of the goods, are only binding if they are expressly designated as such. In all other respects, data relating to the supply and performance shall only be regarded as approximate and should only be considered as non-binding outline information. They represent no particular warranty but are simply descriptions and characterisations of the goods. The same applies for references to technical regulations such as DIN standards etc. 5. We only consider orders to be accepted if we have confirmed them in writing. Information, recommendations, advice or agreements provided by our employees are, likewise, only binding on us following our written confirmation. 6. Verbal agreements, retrospective contract modifications and deviations from these conditions are only binding following our written confirmation. II. Prices 1. Our prices are net prices plus the legally required value-added tax and are valid for the agreed delivery time of up to three months and for deliv ery within three months. For later delivery dates, we reserve the right to increase the price if conditions alter after conclusion of the contract, in particular if an increase in the price of raw materials or in wage or transport costs occurs. In such a case, the price adjustment is only possible within the same framework and in order to reconcile the price with the increase in costs. 2. For deliveries to customers within the Federal Republic of Germany, delivery is free for orders with a value greater than 5000 euros; in the case of deliveries to the customer's clients the shipping costs are their responsibility. 3. For completion of small orders having a net value of less than 300 euros, a net handling charge of 50 euros will be applied for each order processed. 1

2 III. Delivery 1. The customer may not reject partial deliveries unless these are unreasonable for the customer. 2. Unless otherwise agreed, the goods will be bundled, unpacked and not protected against corrosion. 3. Unless otherwise agreed, manufactured lengths are supplied as per DIN EN IV. Transfer of risk, shipment 1. If we provide transport of goods, the means of transport and routes are at our discretion and we will determine the carrier or freight forwarder. 2. Goods which are declared ready for dispatch must be called up immediately; otherwise we are entitled to store them at the expense and risk of the customer, at our own discretion, and to invoice them as ex-factory. 3. Insurance is only contracted following an instruction from the customer and at its expense. 4. All risk is transferred to the customer on handing over of the goods to the carrier or freight forwarder. This also applies to freight forwarder deliveries, CIF, FOB and similar transport clauses. In the case of transport by our vehicles and employees, all risks are transferred to the customer on completion of the loading procedures. In the event of delivery delays for which we are not responsible, all risks are transferred to the customer on the day that the goods are ready for dispatch. 5. The Inco terms from the version valid at the time the contract is concluded are to be applied for interpretation of the commercial clauses. V. Inspection 1. If an acceptance inspection has been agreed upon, then, in the absence of an agreement to the contrary, this takes place at the supplier's site. The inspection must be performed immediately following notification that the delivery is ready. Unless agreed otherwise, each party bears its own costs relating to the inspection. 2. If the customer requires any special methods of packing, e.g. seaworthy packing, or if special quality specifications have been agreed, the customer is obliged to take part in an inspection on our request. 3. In the event of a delay in the inspection for reasons which the customer has to declare, we are entitled to carry out the delivery without inspection or to store the goods at the expense and risk of the customer. 2

3 VI. Delivery times and delivery delays 1. Provided the order confirmation does not expressly state otherwise, the indicated delivery dates are not binding and no guarantee is provided that they will be observed. 2. Agreed delivery times are only valid if all the details of the order are clarified in good time. They refer to the time of dispatch from the supplier and if the goods are unable to be sent in time, for reasons not attributable to us, are considered to be satisfied when the ready for dispatch notice is sent. In the event of circumstances and events for which we or our suppliers are not responsible, which prevent the delivery or make it substantially more difficult, the delivery time is extended by the duration of the obstruction and an appropriate start-up time. If the obstruction lasts for more than two months, we or the customer may withdraw from the contract at the end of this period. 3. The customer's right to cancellation at that time exists only with respect to the unfulfilled part of the contract, unless the partial deliveries already supplied are demonstrably not usable by the customer. 4. If the dispatch is delayed on the wish of the customer or for reasons which the customer has to demonstrate, beginning one month after announcement that the goods are ready for dispatch we will invoice the customer for the cost of storage at our site for at least 0.5% of the total invoice amount for each month begun. The assertion of further rights relating to the delay remains unaffected. VII. Warranty, incorrect deliveries With respect to the transfer of risk for deficient goods, we provide warranty according to the following provisions: 1. The customer is required to examine the goods for any obvious deficiencies. The completeness of the delivery in accordance with the waybill, delivery notice and enclosed packing list must also be checked. Any obvious or recognised deficiency, including objections relating to the quantities, must be notified immediately in writing, as well as any deviations in terms of treatment or processing. Claims for failings are not possible in the absence of these inspections and fulfilment of the obligation to provide notice of deficiencies. 2. The customer is entitled to remedy of any claim for deficiencies. In this respect we guarantee to provide repair or replacement, according to our choice. If both forms of remedy require disproportionate costs in the sense of paragraph 439 of article 3 of the German Civil Code (BGB), we are entitled to refuse both types of remedy. 3. If the remedy fails or is refused by us in a justified manner, the customer may demand cancellation of the contract (rescission) or reduction in the remuneration (price reduction). In the event that the breach is only minor, in particular through minor defects only, the customer is not entitled to rescind the contract. 3

4 4. Claims for deficiencies by the customer including claims for damages by the customer because of deficiencies lapse one year after the delivery of the goods. Other claims are only valid if we have wilfully concealed the deficiency or they relate to a building, or goods which are used as part of a building in their normal method of use and this has brought about their deficiencies. 5. Negotiations between the parties do not lead to an extension of the limitation date in accordance with article 203 of the German Civil Code. 6. Warranty claims are not possible in the following cases: Production-related unevenness; process-related tube length differences; minor crosssection deformations caused by bending; minor rolling marks and scoring; in the event that our instructions for processing, assembly, handling or use of our goods are not observed; unsuitable or inappropriate use; defective assembly or commissioning by the customer or a third-party; non-observance of regulations or official instructions; the non-performance of preventative measures against corrosion or white rust, inappropriate storage conditions, handling or packing by the customer or a third party; the combination of our goods and system components with goods or system components from other manufacturers, except where our instructions expressly foresee such a combination. 7. The customer is exclusively responsible for ensuring that the quality and condition of the goods is suitable for the particular purpose intended. Any unsuitability, therefore, may not constitute grounds for a claim, unless we have expressly assured, in writing, the suitability of the goods for the intended purpose. VIII. Liability criteria, extent of liability 1. Claims for damages to the customer are not possible on any legal basis. This does not apply if our legal representatives or agents have been deliberately or grossly negligent, or if we are held liable according to product liability legislation for damages which are directly attributable to us in the form of injury to life, body or health or breach of substantial contract obligations. Payment of damages for substantial breaches of contract obligations is however limited to the foreseeable damages typical for the contract, provided no malice or gross neglect is involved or liability is mandatory for damages attributable to us through injury to life, body or health or in accordance with product liability law. 2. We are not responsible for the provision of official permits or observance of existing processing, safety or environmental regulations. IX. Retention of ownership 1. The delivered goods remain our property (reserved goods) until settlement of all outstanding debts, in particular the respective requests for settlement of balances to which we are entitled in the context of the business relationship with the customer. In the event of delay in payment by the customer we are entitled to enforce our rights of retention of ownership, without cancellation of the contract. 4

5 2. Treatment and processing of the reserved goods are undertaken in the sense of article 950 of the German Civil Code, without obligation to us. The treated and processed products are considered as reserved goods in the sense of item 1. Processing, incorporation or mixing of the reserves goods with other goods, by the customer, entitles us to co-ownership of the new products in the ratio of the invoice value of the reserved goods to the invoice value of the other goods employed. If our property is used up by incorporation or mixing, then in so doing the customer transfers to us the ownership of the new product or item, to the extent of the invoice amount of the reserved goods, and holds it without charge to us. Our jointly owned products are considered as reserved goods in the sense of item The customer may sell on the reserved goods only in the usual course of business under its normal trading conditions, if it is not in arrears and provided that it agrees retention of ownership with its customer and the outstanding debts from the resale are transferred to us according to items 4 and 5. It is not entitled to make any other dispositions of the reserved goods. Resale includes also the use of the reserved goods for fulfilment of contracts for work or for work and materials. 4. The customer assigns to us, in full, the legally entitled debts related to the reserved goods that are due to the customer through resale or through other means, as well as entitlements for payment of compensation for damage to or destruction of the reserved goods, regardless of whether this involves contractual or legal requirements against the at-fault party, an insurance company or other third-party, and for compensation related gains. 5. If the customer resells the reserved goods in combination with other goods which were not supplied by us, then the debts on the resale are assigned to us in the ratio of the invoice amount for the reserved goods to the invoice amount of the other goods. In the event of resale of goods for which we have co-ownership in accordance with item 2, a portion of the debt appropriate to our co-ownership will be assigned to us. 6. If the aforementioned outstanding debt of the customer is applied to an account relationship, then the outstanding balance for the account will be surrendered to us in full. After offsetting the debt, it is replaced by the balance up to the assigned level of the amount that the original debt on the account constituted. In the event of ending of the account relationship, this accordingly applies to the concluding balance. 7. The customer is entitled to collect debts on the resale or settlement of outstanding balances, unless we revoke the collection authorisation. On request from us, it is obliged to inform its customer immediately of their transfer to us - unless we have already done this ourselves - and to provide us with the information and documents necessary for the collection. 8. On no account is the customer entitled to assign the debt to anybody else. This also applies to factoring businesses; the collection authorisation also prohibits the use of such businesses by the customer. We are, however, willing to agree the use of factoring businesses in individual cases, provided that the equivalent value from this goes to the customer and the payment of our outstanding invoices is not endangered. 5

6 9. In the event of delayed payment or any endangering of our outstanding accounts through reduction in the credit worthiness of the customer, we are entitled to prohibit the treatment, processing and resale of the reserved goods. In these cases, as well as in the event of breach by the customer of its obligations according to item 3, we can also require the return of the reserved goods, at the customer's expense, under exclusion of a right of ownership retention. The customer authorises us, even now, to enter its factory and take back the reserved goods. The taking back of the goods is not considered as cancellation of the contract. 10. If the total realisable value of the existing securities exceeds the secured debt by more than 20 % we are, on request from the customer, obliged to release the securities at our discretion. The customer must immediately inform us of any seizing or other impairment of the goods by a third party. X. Payment 1. Unless otherwise agreed, our invoices are payable in cash without deduction immediately on receipt. 2. In the event of delay in payment we are entitled, to withhold delivery or other services from all contracts until the payment in full of all the customer's outstanding debts to us. The customer can avoid this right of lien through provision of a directly enforceable and unrestrained bond provided by a credit institution to the value of all outstanding debts. Following the expiration of an unfulfilled fixed payment deadline for the customer, we are also entitled to withdraw from all contracts not yet implemented. We reserve the right to claim for any damages caused by such delay. 3. The customer has a right of lien and an authority to off set only in so far as its counterclaims are undisputed or validly determined. The customer only has the right of lien arising from the provisions of the same contractual relationship. XI. Data-processing, place of delivery, area of jurisdiction, applicable law 1. We are entitled to process the personal data received in the context of our business relationships in accordance with the data protection act. 2. The place of delivery and the area of jurisdiction for these general terms of delivery and sale, for all disputes arising from either company, is our registered place of business. This applies to claims that are made both by us and against us. We are, however, also entitled to sue the customer in its own general area of jurisdiction. 3. The relevant law of the Federal Republic of Germany applies exclusively for all legal relations between us and the customer and for all legal relations with domestic parties. The application of dispute rights and the UN purchasing rights is thus excluded. 4. If any of the individual clauses of these general terms of sale and delivery should be or become void, this will not affect the applicability of the remaining clauses. In 6

7 place of the void clause the legally applicable regulation which comes closest to the purpose intended by the void clause applies. Date: March