General Terms and Conditions of Sale
§ 1 General Terms
(1) Where the Customer is acting in the course of his business or is a corporate body under public law the following standard terms and conditions shall govern all goods and services supplied by us to the Customer. Any terms of the Customer which contradict or deviate from the terms and conditions below shall not apply except where we have expressly agreed to the same in writing.
(2) These terms and conditions or the then current version thereof shall apply as a framework agreement for future contracts for the sale or supply of movable goods with the same Customer irrespective of the absence of an express indication to such effect for any future single transaction with the Customer; we shall inform the customer of any changes these terms and conditions without delay.
(3) Any individual agreements made with the Customer (including ancillary agreements, supplements or changes) shall take precedence over these terms and conditions. A written contract or our written confirmation shall be definitive in terms of the content of any such agreement.
(4) Any material declarations or notifications submitted by the Customer after the contract date (e.g. deadlines, notification of defects, rescission or a price reduction) must be made in writing.
(5) Any indications made as to the application of statutory provisions are for the sake of clarity only. In the absence of any such indication the statutory provisions still apply except where such statutory provisions are amended or expressly excluded.
§ 2 Contract Conclusion
(1) Our quotations are without obligation. This shall also apply where we provide the Customer with catalogues, technical documentation, (e.g. drawings, plans, calculations, cost estimates, referrals to EN standards) and any other product descriptions or documents – including where they are provided in electronic form – to which we retain all proprietary rights and copyright.
(2) A contract shall be concluded where we acknowledge the order in writing or text form or where orders are executed by us.
(3) Where trade terms in accordance with the International Commercial Terms (INCOTERMS) are agreed, the INCOTERMS 2010 shall apply.
§ 3 Prices, Terms of Payment
(1) Except where otherwise agreed our prices are subject to the price list valid at the date of the contract. They are EXW (ex works) our stores, and do not include packing, freight, customs duties, ancillary import charges, insurance and VAT. VAT shall be charged at the rate current at the date of performance.
(2) Where the delivery or performance date is more than 3 months after the contract date we are entitled upon timely notification to the Customer and prior to delivery or performance to adjust the price in such a manner as is necessitated by any general price development beyond our control (e.g. exchange rate fluctuations, currency regulations, customs duties changes, increases in material and production costs) or by changes of suppliers. For supplies of goods or services within three months from the contract date the contract price shall apply in any event. In relation to framework agreements with a price clause the three month period shall begin to run upon the effective date of the agreement.
In relation to framework agreements with a price clause the three month period shall begin to run upon the effective date of the agreement.
(3) Except where otherwise agreed the Customer shall remit payment of the agreed price without deduction within 14 days after supply of the goods or services. Upon expiry of the payment term the customer shall be deemed in default of payment.
(4) Cheques and bills of exchange shall only be accepted as conditional payment, bills of exchange by special agreement only. All charges incurred for bills of exchange and other ancillary payment cost shall be for the account of the Customer and are due immediately.
(5) Where after the contract date it becomes apparent that our claim to the price is at risk due to the inability of the Customer to remit payment (e.g. due to institution of insolvency proceedings), we shall be entitled to rescind the contract in conformity with the German statutory provisions, where appropriate upon the expiration of a reasonable deadline. For contracts for the manufacture of fungible goods (custom made items) we shall be entitled to rescind the contract with immediate effect; any statutory provisions as to dispensability of a deadline shall remain unaffected.
(6) The Customer may only set off undisputed counterclaims or counterclaims against which we have no further recourse to appeal. The Customer shall only be entitled to rights of retention in so far as these are based on the same legal transaction
§ 4 Delivery Date / Term
(1) The commencement of the delivery term quoted shall be subject to clarification of all technical matters and proper and timely performance by the Customer of his obligations.
(2) Where we fail to deliver upon an agreed delivery date and such failure is caused by an act or omission on our part the Customer shall grant us an extension in writing of not less than 3 weeks. Where upon the expiry of the grace period, delivery is still not forthcoming and the Customer desires to rescind the contract or demand damages in lieu of performance, the Customer shall prior thereto set a final and reasonable deadline in writing expressly indicating his intention. The Customer is obliged at our request to declare within a reasonable period whether he shall rescind the contract due to the delay in delivery and/or demand damages in lieu of performance or insist upon performance.
(3) In the event of act of god we are entitled to suspend performance of our obligation to deliver. Where there is a considerable change in the circumstances prevalent at the formation of the contract, we reserve the right to rescind the contract. The same shall apply in relation to shortages of energy or raw materials, strikes, governmental decrees, disruption of operations or infrastructure or where, for the above reasons, a sub-supplier fails to supply us properly, on time or at all.
§ 5 Shipment, Transfer of Risk, Default of Acceptance
(1) We supply our goods and services EXW warehouse. The risk of loss, destruction or damage to the Goods shall transfer to the Customer upon loading from our warehouse or where the goods are unable to be shipped or are to be collected upon notification of readiness for shipment.
(2) We reserve the right to select the transport route and the mode of transport. The goods shall be supplied without packaging and without protection against rust. Where it is customary in the trade the goods shall be supplied with packaging. We shall select the packaging, protection aids and / or means of transportation on the basis of our experience at the expense of the Customer. Packaging materials and protection and shipment aids are non-returnable except where otherwise agreed in writing. Extra costs incurred by special shipping requirements of the Customer shall be for the account of the Customer. The same applies to increases in freight charges that occur after the contract is concluded, any additional costs for re-routing, warehouse charges etc. except where delivery carriage paid is agreed.
(3) Supply of goods or services by installment is permitted except where unreasonable for the Customer
(4) In relation to make and hold orders approximately the same quantities shall be called off each month except where otherwise agreed in writing. The entire order quantity shall be deemed called off one month after the expiration of the call off deadline, or in the absence thereof twelve (12) months after the contract date. Where the Customer fails to assign goods ordered to a certain delivery within one month after the expiry of the deadline for such assignment, or in the absence of an agreed deadline, within one month of our request for such assignment, we reserve the right to assign the goods at our discretion and deliver the same.
(5) Excess or short deliveries are permitted insofar as they are within the limits which are customary in the trade.
§ 6 Dimensions, Weight, Quality
(1) Dimensions and quality shall be determined in accordance with EN norms or the requisite material requirements except where foreign norms have been agreed in writing. Where neither of the aforesaid exist the corresponding European norms shall apply or in the absence thereof such quality and dimensions as are customary in the trade.
(2) The weight determined during weighing by us or by our sub-suppliers shall be definitive in terms of determining the weight of the goods. The weight shall be evidenced by the weighing certificate. The weight determined shall only be contested on the basis of an official weighing carried out immediately after delivery. Deviations in weight of up to 2% cannot be reprimanded. Where legally permissible, weight can be determined on the basis of the EN norms without weighing. Reductions which are customary in the steel trade in the Federal Republic of Germany shall remain unaffected. Where the price of the goods is based on weight, deviations of up to 10% from the number of items, bundles confirmed in the order acknowledgement are permissible.
§ 7 Retention of Title
(1) Goods sold shall remain our property until full payment of all existing and future claims arising under the contract or an on-going business relationship has been received from the Customer (Reserved Goods).
(2) The Customer shall not mortgage or transfer the Reserved Goods as a security to third parties prior to having paid the price in full. The Customer shall inform us in writing of any attempts by third parties to gain access to the Reserved Goods.
(3) Where the Customer is in breach of the contract, to include without limitation failure to pay the price on the due date, we shall be entitled to rescind the contract in accordance with the requirements provided at law or to demand the surrender of the goods. Any demand that the goods be surrendered shall not be construed as a declaration of rescission; rather we are entitled to demand the surrender of the goods thereby reserving the right to rescind the contract. Where the Customer fails to pay the price on the due date our right to exercise the rights set out in this sub-paragraph are subject to the expiration of a reasonable deadline except where such deadline can be dispensed with at law.
(4) The Customer shall have the right to resell the Reserved Goods in the normal course of his business and to process the same. In such circumstances the following shall apply:
a) Title retained by us shall extend to the full value of the products created as a result of the manufacturing, mixing or combining process, whereby we shall be deemed the manufacturer. Where on completion of the manufacturing, mixing or combining process third party rights are still in existence, we shall acquire co-ownership in proportion to the invoice values of the manufactured, mixed or combined goods. The resulting product shall be subject to the same retention of title provisions as are set out herein.
b) Any claims against third parties based on the resale of the goods or of the resulting products are herewith assigned by the Customer to us in their entirety or to the value of our co-ownership as set out in a) above. We hereby accept the assignment. The Customer’s obligations set out in sub-paragraph 2 shall continue to apply in relation to assigned claims.
c) In addition to ourselves the Customer shall remain authorised to collect the debt. We undertake to refrain from collection provided that the Customer fulfills his payment obligations to us, is not in default of payment, is not subject to insolvency proceedings and there is no other doubt as to his ability to perform his duties under the contract. Where this is the case we shall be entitled to demand that the Customer discloses to us details of the assigned debts and the debtors together with all details required to enable collection, surrenders any documentation relating thereto and informs the debtors (third parties) of the assignment.
(d) If the value of the securities provided to us exceeds our claims by more than 10 percent, we undertake to release securities of our choice on demand by the Customer.
(5) In the event that the above retention of title clauses are void or unenforceable according to the law of the state/country in which the goods are situated, the collateral security which corresponds to the retention of title in that state/country is deemed to be agreed
§ 8 Customer’s Rights in the case of Defects
(1) The goods supplied by us correspond to the German regulations and standards currently in force. We give no guarantee that the goods comply with other national regulations. Where the goods are to be put into operation overseas it is the responsibility of the Customer to ensure that the goods are in conformity with the relevant legal requirements and standards and where required to make appropriate adaptations.
(2) The Customer shall not be entitled to make a claim based on defective delivery or performance where the reduced value or merchantability of the goods delivered or services supplied is nominal.
(3) Where the goods delivered by us are defective and the Customer has notified us of the same in writing not later than 28 days after the delivery date we shall at our option deliver a replacement or remedy the defect. The Customer shall grant us a reasonable period of not less than 15 working days to carry out the same.
(4) The Customer is entitled to demand reimbursement of the costs incurred by reason of the replacement delivery or remedying of the defect insofar as such costs are not increased due to the subsequent transportation of the goods delivered to a location other than the original shipment location unless the purpose for which the goods are intended requires the same. Where it subsequently becomes apparent that the Customer has no justified claim to reimbursement we retain the right to demand reimbursement of any monies paid.
(5) In the event that we are not in a position to remedy the defect or deliver a replacement the Customer is entitled to rescind the contract or to demand a reasonable reduction in the purchase price. Rescission of the contract is only permissible where the Customer prior thereto sets a final and reasonable deadline in writing expressly indicating his intention.
(6) The Customer shall retain a statutory right or recourse against us insofar as the Customer has not agreed terms with its customer which exceed the statutory liability for defects.
§ 9 Damages
(1) Except where otherwise provided below any claim of the Customer for damages other than those claims set out in § 8 aforesaid are hereby excluded irrespective of the legal grounds upon which it is based. Accordingly we do not accept liability for any damage not incurred by the goods themselves nor do we accept any liability for loss of profit or any other pecuniary loss suffered by the Customer. To the extent that our contractual liability is excluded or limited, such exclusion or limitation shall apply in relation to the personal liability of employees, representatives and vicarious agents.
(2) The aforesaid limitation of liability shall not apply where the damage incurred has been caused by willful default or by gross negligence, due to fraudulent misrepresentation as to the absence of a defect or breach of guarantee or where personal injury has been suffered or where damages are claimed under the product liability act.
(3) Where we are in negligent breach of a material term of the contract our liability to compensate damage to property shall be limited to such loss as was typically foreseeable at the time the contract was made. A material term of the contract shall be any term which places the Customer in the legal position provided for under the contract in terms of its content and purpose and any term which must be complied with in order to ensure proper performance of the contract and upon the performance of which the Customer relied or could be reasonably expected to rely.
(4) Beyond the aforesaid we shall only be liable to the extent of our insurance coverage insofar as the damage which has been incurred is insured and subject to payment of the insurance benefit
(4) Any other liability in damages is hereby excluded.
(5) Any assignment of the Customer’s claims provided for in § 8 and 9 above is not permitted, insofar as this prohibition is permissible at law.
§ 10 Limitation
(1) The limitation period for claims based on the supply of defective goods and services (§8) as well as for claims for damages (§9) is one year from the date of delivery or acceptance.
(2) The limitation period aforesaid shall not apply in relation to claims based on wilful default, gross recklessness, fraudulent misrepresentation of the absence of a defect, breach of guarantee or to personal injury claims and to claims under product liability laws (§9 sub-para. 2). The limitation period aforesaid shall further not apply where longer limitation periods are prescribed by law.
§ 11 Prohibition of Delivery to Third Parties
(1) The Customer and his customers shall not carry out any of the following:
Tender unprocessed material which has not been expressly sold for export for sale outside the Federal Republic of Germany;
Allow material which has been sold for export to remain in the Federal Republic of Germany, or to supply or transport such material back to the Federal Republic of Germany or to transport or supply the material to any country other than the country specified in the purchase order. Such material shall not at any time be processed in the Federal Republic of Germany.
(2) The Customer shall produce evidence of the whereabouts of the material where we so request.
(3) Where there is a breach of the aforesaid in the supply chain the Customer shall pay a penalty in the sum of 10 % of the purchase price but not more than 5,000€. Where as a result of the Customer’s action we are sued for loss of profit the Customer shall also reimburse the loss of profit suffered by our suppliers subject to production of evidence of the same.
(4) The Customer undertakes to:
impose the conditions set out in sub-sections 1-3 aforesaid upon his customers coupled with an obligation that the same conditions be imposed throughout the supply chain and to inform us without delay of any breaches by any customer in the supply chain of which he becomes aware;
sue his customers where they are in breach of the aforesaid conditions or to assign his right to sue to us where we so request.
(5) For goods which are the subject of the European Coal and Steel Community Contract export shall mean the supply to a country outside the sovereign territories of the European Coal and Steel Market and the sovereign territory of the kingdom of Norway. These territories are for the purposes of these terms and conditions of sale deemed to be the same as Federal Republic of Germany.
(6)Where the goods are transported to a location and/or address other than the delivery address specified in the invoice the Customer shall, irrespective of the lack of evidence of his default, reimburse all financial concessions made on the basis of the recipient specified together with an additional 50.00€ per tonne of the misdirected goods but not more than twice the value of the concessions.
§ 12 Choice of Law, Jurisdiction
(1) For Customers whose principle place of business is situated in the European Union all disputes arising out of these terms and conditions shall be resolved before the courts with appropriate jurisdiction located at our principle place of business. We reserve the right to sue the Customer at its principle place of business.
For Customers whose principle place of business is situated outside the European Union all disputes arising out of these terms and conditions shall be finally settled in accordance with the Rules of the German Institution of Arbitration e.V. (DIS) without recourse to the ordinary courts of law. The place of arbitration shall be Frankfurt am Main, Germany.
(2) The laws of the Federal Republic of Germany shall govern all the legal relationships between us and the Customer.