General Terms and Conditions of Delivery and Performance Issue: 03 / 2006
These terms and conditions constitute part of all our offers and contracts for deliveries and performance in all current or future business relationships. Deviating agreements, in particular conflicting terms and conditions of our customers and collateral agreements require our express written consent in order to become part of the contract.
1. Offer and Conclusion of Contract
1.1 Our offers are non-binding.
1.2 Contracts and amendments to contracts shall only be concluded with us if we have accepted the order in writing, have agreed with the customer to the amendment in writing or have delivered the products or services ordered by the customer.
1.3 We shall only be obligated to provide deliveries and/or services which are expressly specified in our quotations and/or cost estimates.
1.4 All documents (e.g. technical descriptions, drawings, illustrations as well as colour, dimensional and weight data) made available to our customers provide only approximate values as are customarily provided in the industry. We are entitled at any time to make improvements and to changes to these documents, data and the products themselves - e.g. in materials and colours - without prior notice inasmuch as these improvements and/or changes are not unreasonable for the customer. In the case of products supplied in conformance with specific technical standards, the tolerances specified in the standard shall apply.
2.1 Our prices are quoted strictly net "ex works", excluding transport, packing and other incidental costs, which we will invoice separately to the customer.
2.2 Value-added tax is not included in our prices. It is however shown separately in our invoices.
2.3 We shall be entitled to demand the price for the products/services delivered which corresponds to the price charged to our other customers at the time of delivery in the event there is a period of more than 4 months between conclusion of the contract and delivery.
2.4 In the event we deliver to locations within the European Community, the customer involved must without delay provide us his VAT I.D. number and all other necessary information (e.g. confirmations of transport and final destination).
3. Deadlines and Dates
3.1 Deadlines and dates are only binding for us if they have been expressly agreed in writing with our customers.
3.2 Any agreed delivery and/or performance periods shall commence on the date of our written declaration of acceptance or order confirmation.
3.3 Force majeure and other extraordinary circumstances, such as labour disputes, machine failures, bottlenecks in raw material supply, sovereign measures and transport disruptions, regardless of whether these circumstances have affected us or our suppliers, shall release us for the duration of their effects from our obligation to deliver the products/services and, in the event they make performance impossible, shall release us completely from our obligation to deliver the products/services. We shall also be released from our obligation to pay any agreed contractual penalty arising due to such circumstances.
4.1 Our payment claims shall become due 8 days after the date of our notification of availability and/or our invoice.
4.2 Deductions, in particular cash discounts, are only permissible upon separate written agreement.
4.3 We do not accept bills of exchange. Cheques shall only be credited to the customer when their equivalent value is at our disposal without restriction. Any resultant costs shall be reimbursed to us.
4.4 From the due date we shall be entitled to interest at a rate of 5% p.a., from default at a rate of 8 % above the currently valid base interest rate. We reserve the right to assert further claims for damages caused by delay.
5. Receipt and Acceptance
5.1 The customer shall receive or accept the deliveries/services immediately, but at the latest within 8 working days after our request, in the factory/warehouse designated by us.
5.2 Should the customer not receive/accept the delivery/service in due time (Clause 5.1), we may, after unsuccessful reminder, withdraw from the contract after setting a reasonable deadline and demand damages, either compensation for the damage incurred or, at our discretion, 10 % of the agreed price without proof of the damage. The customer shall be entitled to establish by adequate proof that we have incurred no damage or only substantially less damage. Goods notified by us as ready for dispatch must be accepted by the customer without delay. If the goods are not accepted or are accepted with delay for reasons for which we are not responsible, this shall not affect the agreed due date for payment. Storage costs in the usual amount shall be borne by these customers along with all other costs incurred as a result of non-acceptance or delayed acceptance.
5.3 A deposit will be charged to the customer for returnable mesh-box pallets. After returning of the pallets in faultless condition, the customer shall receive a credit note in the corresponding amount.
5.4 No deposit will be charged for returnable winding drums. These will be collected by us or the owner after we or the owner have received a pick-up notification from the customer. In the event additional costs arise due to deadhead runs, false notification or necessary repairs to returnable winding drums, these costs shall be borne by the customer.
6. Transfer, Retention and Set-off
6.1 The customer shall not be entitled to transfer claims or rights directed against us to third parties without our written consent.
6.2 The customer may only offset counterclaims inasmuch as such counterclaims have been legally established or are undisputed.
6.3 The customer shall only be entitled to exercise rights of retention and rights to refuse performance only inasmuch as pursuant to the contractual relationship from which his counterclaim is derived ; Clause 6.2 shall also apply in this respect.
7. Place of Performance, Transfer of Risk and Insurance
7.1 We supply our customers ex works Achim / Germany.
7.2 Partial deliveries and services are permissible.
7.3 The risk of accidental loss or accidental deteriorationfor deliveries/services performed by us shall pass to the customer upon receipt or acceptance on the part of the customer, in any event however upon their leaving our factory/warehouse. This shall also apply to partial deliveries/services, even if we have been commissioned with provision of other services (e.g. transport or transfer).
7.4 If the receipt/acceptance or the dispatch from our factory/warehouse is delayed for reasons for which the customer is responsible, the risk shall pass to the customer at the latest after expiration of the period stipulated in Clause 5.1 above.
8. Retention of Title
8.1 We retain title to the items delivered and/or installed by us (hereinafter: “reserved goods”) until complete settlement of all claims, irrespective of their legal basis, against the customer to which we are entitled from contracts and the business relationship with the customer now or in the future, including those having arisen before and those arising after the conclusion of the contract. The following applies to this retention of title:
8.2 The customer shall be entitled to resell, process, mix or combine as well as subsequently sell reserved goods within the scope of extended retention of title, provided that this takes place in the ordinary course of business. The customer shall not be permitted to pledge or transfer the reserved goods by way of security.
8.3 Any processing or transformation of the reserved goods shall be carried out by the customer exclusively on our behalf. If reserved goods are combined or mixed by the customer with other goods not belonging to us, we shall acquire co-ownership of the new item in the ratio of the invoiced value of the reserved goods to the total value of the new item. The new item resulting from the processing shall also be deemed as reserved goods within the meaning of these terms and conditions.
8.4 The customer shall assign to us in advance as security all claims in connection with the sale of reserved goods including related ancillary rights and any related claims against insurers to which they are entitled. Furthermore, in the event of the export of reserved goods, the customer hereby assigns to us all claims to which they are or will be entitled in connection with the export sale against domestic and foreign credit institutions, in particular claims from collection orders, letters of credit or confirmations of letters of credit as well as from sureties or debt guarantees. Should the customer sell reserved goods in conjunction with other goods not belonging to us, whether without or following processing, these claims shall be deemed assigned to us in the amount of the invoiced value of the reserved goods. The above assignment shall in no way be construed as deferring any of the customer's payment obligations.
8.5 The customer shall remain authorized to collect the claims assigned to us even after the assignment. Our authority to collect the claims ourselves shall remain unaffected thereby. We undertake, however, not to collect the claims as long as the customer is not in default of payment, no application has been made for insolvency proceedings to be instituted against their assets and the customer has not suspended payments. Should one or more of these cases be in fact given, this customer shall immediately inform us of the assigned claims and their debtors, provide all information and documents necessary for the collection of the claims and inform the debtors of the assignment.
8.6 The customer shall maintain the reserved goods in proper condition, store them separately and mark them as being our property.
8.7 At the customer's request, we shall return to the customer the title to the reserved goods and the claims assigned to us insofar as their value exceeds the value of the claims to which we are entitled against the customer by more than 20%.
9.1 The customer shall notify us in writing of any defects immediately after their discovery.
9.2 Before other actions are taken we shall first be provided the opportunity to perform subsequent performance within a reasonable period of time, at our option either by remedying the defect, delivering a defect-free item or reperforming the service in question.
9.3 In the event (alleged) defects/damage are discovered on pipes that have already been laid, we or an expert commissioned by us shall be provided the opportunity to inspect the (alleged) defect/damage before the defect/damage is remedied and before the (pipe-laying) work is continued. Should this not be possible due to time constraints or not be reasonable for the customer due to other reasons, the preservation of evidence shall be realized by means of videos/photographs made by the customer. We will bear reasonable costs for colourants and video and photographic materials incurred thereby provided that the suspected defect/damage is in fact confirmed. Any delivered products (e.g. pipes) replaced shall be kept available until we or an expert commissioned by us have inspected them. We shall reimburse the customer for any resulting storage or warehousing costs – inasmuch as in accordance with customary local rates and otherwise reasonable – in the event the suspected defect/damage is in fact confirmed.
9.4 In the event the subsequent performance ultimately fails, cannot be reasonably expected of us or of the customer or is only possible with disproportionate costs or efforts, the customer shall be entitled – without prejudice to any claims for damages – to withdraw from the contract or reduce the remuneration.
9.5 Claims of the customer for expenses incurred for the purpose of subsequent performance - in particular transport, travel, labour and material costs - are excluded to the extent that the expenses increase due to subsequent transport of the objects delivered to a location other than the customer's nearest branch office, unless said transport is in conformance with their proper intended use.
9.6 The customer's statutory rights of recourse against us shall exist only to the extent that the customer has not entered into any agreements with his customer which go beyond the scope of statutory rights with regard to defect claims. The scope of the customer's right of recourse against us shall in addition be limited by Clause 9.5 above.
9.7 After having provided a notice of defects, the customer shall be entitled to withhold payments to an extent which is reasonable in relation to the defects that have occurred. Should the defect notice be unjustified, the customer shall be obligated to reimburse the resultant expenses incurred by us.
9.8 The limitation period for material defects and defects of title is one year and begins at the point in time of transfer of risk. This shall not apply insofar as and to the extent that longer periods apply pursuant to § 438 Paragraph 1 No.2, § 479 Paragraph.1, § 634a Paragraph 1 No.2 or § 651 BGB (German Civil Code), the defect was fraudulently concealed or one of the liability cases mentioned in Clause 10.1 below exists.
9.9 Our obligation to restitute damages shall be governed by Section 10 below.
9.10 The above provisions shall not imply any reversal of the burden of proof to the disadvantage of the customer.
10.1 Claims by the customer against us for damages or reimbursement of expenses (hereinafter: "Claims for Damages"), for whatever legal grounds, are excluded unless they are based on the provisions of the Product Liability Act, an intentional or grossly negligent breach of contractual or statutory obligations on our part, impairment of health or bodily injury suffered by the customer due to a breach of duty for which we are responsible, a guarantee given for the existence of a certain characteristic or a breach of essential contractual obligations on our part.
10.2 Damages for breach of essential contractual obligations shall be limited in scope to the foreseeable damage typical for this type of contract, unless we are liable for intent or gross negligence with respect to impairment of health or bodily injury or a guarantee given for the existence of a certain characteristic.
10.3 A breach of duty on our part or on the part of our legal representative or vicarious agent shall be deemed one and the same
10.4 Clause 9.10 shall apply accordingly.
11. Data Protection
We are entitled to store data relating to the customer within the framework of the business relationship in our computer system and process and use this data for our operational purposes in accordance with the statutory provisions.
12. Place of Jurisdiction, Applicable Law and Partial Invalidity
12.1 The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship - including disputes arising from documents, bills of exchange and cheques - shall be the court competent for our registered office. However, we remain entitled to bring action against the customer before courts having jurisdiction for his place of business.
12.2 The law of the Federal Republic of Germany shall apply. The United Nations Convention on Contracts for the International Sale of Goods is excluded from application.
12.3 Should any individual provision of a contract for products and/or services of which these Terms and Conditions form a part be or become invalid, the validity of the remaining provisions of that contract shall not be affected thereby.