General Terms and Conditions of Delivery and Payment
1. Scope of the General Terms and Conditions
The Terms and Conditions laid down here after shall exclusively apply to all our deliveries, including the deliveries from future business transactions, unless contrary special conditions have been agreed. The ineffectiveness of individual conditions shall not affect the validity of the remaining conditions. The same shall apply if individual conditions do not become part of the agreement.
2. Conclusion of the agreement
If contracts of purchase and sale are concluded verbally or by telephone and subject to written confirmation, the content of the letter of confirmation shall apply, unless the recipient lodges an immediate protest.
We shall be entitled to fulfill the contractual obligation through partial deliveries. Should a delivery on call be agreed, the Buyer shall be obliged to call for delivery within a reasonable time limit. We shall be entitled to ask for call for complete delivery of the contractual obligation within one year after the conclusion of the present agreement. If the delivery should become impossible or excessively difficult due to force majeure, authority measures, factory shutdown, strike or similar circumstances - also on the part of our suppliers - we shall be freed from any obligation to deliver for the duration of the obstruction and the aftereffects thereof. Such events shall also entitle us to rescind the contract. Should the delivery by our subcontractors not take place in full or insufficiently, we shall be entirely or partly freed from our obligation to deliver. This shall only apply if we have taken all necessary measures to acquire the goods to be delivered by us and if we have notified the buyer of the delivery obstruction without delay. In this case, we shall undertake to assign our claims towards our suppliers to the buyer on his request. We shall undertake, in the event that we are irrevocably freed from the obligation to deliver, to refund any payments already made by the contracting party. Increases in transportation costs, changes in tariffs, surcharges due to freezes, high or low water may be added to the purchase price, if the delivery takes place more than four months following the conclusion of the contract. The shipment – even within the same town – shall take place at the buyer’s expense and risk, even if the goods are transported with our vehicles. The buyer shall also bear all risk in the event of carriage free delivery.
The goods shall be packed in a customary manner at the buyer’s cost. Returnable packaging shall be emptied by the buyer without delay and returned carriage free and in impeccable condition. It may not be refilled with other goods or used for any other purpose.
5. Notice of defect
Reprimands due to obvious defects or deviations of the composition of the goods or due to the delivery of goods obviously different from the ordered ones may only be put forward immediately, but within one week upon the receipt of the goods or after the defect has become obvious at the latest. Should the ordering party be a general merchant, we shall guarantee the faultlessness of our product for the duration of one year as from the delivery date. Notices of defect shall only entitle to a reduction. We shall only be liable for gross negligence in the event of missing guaranteed features. Any losses or damages occurring during the rail transport must be complained against the railroad company and attested by railroad officials prior to the acceptance of the consignment; otherwise the compensation claim against the railroad company shall expire. Defects occurring during the rail transport shall not result in an entitlement to no acceptance of delivery.
Unless expressly stated otherwise, our prices principally do not include statutory VAT. If no other terms have been agreed, the payment shall take place without any deduction, immediately upon receipt of the invoice. In the event of a delivery on credit, the period allowed for payment shall be determined according to the delivery date. A payment by bill of exchange shall only be allowed upon express authorization and, even in this event, shall only be accepted on account of payment. Discount charges, bill of exchange taxes and collection costs shall be borne by the buyer and shall be payable without delay. In the event of payment by cheque not the cheque receipt but its final cashing shall be considered as payment, if the supplier has immediately submitted the cheque to a bank for cashing. In the event of late payment, the customer’s individual invoice amounts on the cheque account will be set on a 8% yearly interest rate over the base interest rate according to paragraph 1 of the DÜG [German Transitional Discount Rate Act] from the due date (receipt of 1st reminder) or one month upon the invoice date of the invoices which form part of the outstanding balance on the account. The buyer may only set off counterclaims which are not denied by the supplier or have been legally ascertained. The buyer may not exercise any right of retention arising from other contractual relationships. Should we grant the buyer installment payment, he must adhere strictly to the fixed times of payment. In the event that the buyer does not adhere to the fixed time of installment payment, this shall be deemed a final, serious refusal to perform, unless the buyer makes a declaration to the contrary within one week upon the expiry of the time of payment. Such effect shall take place without express prior notification to the buyer.
7. Defaults in performance
The purchase price shall become due without delay and without reminder if the buyer definitely refuses to pay the purchase price or does not adhere to the agreed installment payment. In this case, we shall have the right to refuse the fulfillment of the terms of the agreement without setting a grace period and without any warning of refusal, and we shall have the right to claim reimbursement of all costs and expenses incurred, as well as compensation for depreciation. In the event of a default in taking delivery on the part of the buyer, we shall be entitled to store the goods at our premises or with a third party at the buyer’s cost and risk or use them in a manner deemed adequate by us on account of the buyer without prior notification. In the event of a substantial deterioration of the buyer’s financial or income circumstances or the occurrence of a considerable threat to his capital we shall be entitled to request the immediate payment of all claims and make delivery subject to advance payment or the provision of security.
8. Reservation of ownership
We shall remain the owners of the delivered goods until full payment of the purchase price and all present or future claims arising from the business relation with the buyer. If such reserved goods are inseparably mixed or blended with other goods, we shall obtain common ownership of the unifi ed item corresponding to the value of the reserved goods in proportion to the value of the goods mixed with the proportional goods at the time they were mixed or blended. If the conditional goods are treated or processed, we shall obtain common ownership of the new item; it shall be stored by the buyer on our behalf. The buyer shall be obliged to inform the seller on request within one week of the stock of the goods under reservation of ownership stored at his premises and to hand over such goods to the seller without delay. The buyer shall be obliged to insure our goods at our request at a reasonable rate against the usual risks, to bear the necessary costs and to assign the insurance claims to us. We shall furthermore be entitled to pay the insurance premiums on the buyer’s account. The buyer shall only have the right to sell the goods (including the goods created by mixing, blending, treatment or processing) within the scope of his regular business activities. Any other utilization of such goods by the buyer, in particular for the purpose of pledge of transfer of security, shall be prohibited.
As of now, the buyer shall assign all claims arising from the sale of the reserved goods or the goods created by treatment or processing to us. As of now, the buyer shall assign to us a first-rate partial payment from the claims arising from the sale of such goods for which we have obtained common ownership due to mixing or blending, corresponding to our co-ownership share in the sold goods. Should the buyer sell goods of which we are the owners or co-owners together with other goods of which we are not the owners at a total purchase price, the buyer shall, as of now, assign to us a first-rate partial payment of this total claim corresponding to the proportion of reserved goods sold. The buyer shall be authorized subject to revocation at any time to collect the assigned claims arising from the resale. He shall be obliged to inform us at our request of the debtors of the assigned claims, to inform such debtors of the assignment or to hand over to us the notices of assignment. As long as the buyer fulfils his obligation to pay we shall not disclose the assignments. Should the value of the seller’s existing securities exceed the claim by 30% in the aggregate, the seller shall be obliged to release at the buyer’s request securities of his choice.
We shall only be liable in the event of gross misconduct (wrongful intent or gross negligence).
10. Place of performance
Our business premises shall be the place of performance for both parties if the customer is not a merchant according to paragraph 4 of the German Commercial Code, if he is a juristic person under public law or a separate estate under public law or if he is no German resident. The existing law at the place of performance shall be applicable concerning all legal relationships between the customer and us, this shall also apply to any legal proceedings taking place abroad.
11. Legal venue
The parties are in agreement that the stipulations as to the legal venue shall apply as regards place and subject matter. If the customer is not a merchant according to paragraph 4 of the German Commercial Code, if he is a juristic person under public law or a separate estate under public law, we shall be entitled to commence proceedings at the legal venue of the place of performance and proceedings against us may only be commenced at this legal venue.