Trade terms

 General terms and conditions

1        Definition and scope of application

 1.1    These terms and conditions of sale apply only to entrepreneurs, legal entities under public law or special funds under public law according to § 310 sec. 1 German Civil Code (BGB) .

1.2     Our deliveries, services and offers shall be made exclusively on the basis of these terms and conditions. Any conflicting or deviating terms and conditions of the customer are expressively rejected. We only acknowledge conflicting terms and conditions of the customer if we give our explicit written consent. Our terms also apply if we deliver without reservation in the knowledge of conflicting or deviating terms and conditions of the customer. 

1.3    Deviating terms and conditions or side agreements only apply if they have been confirmed by us in writing.

2        Offers, delivery scope and call orders 

2.1     Our offers are nonobligatory. Contracts are concluded only with our written confirmation of the order or delivery. The written form is also kept by telefax or e-mail. As long as an order is seen as offer according to § 145 BGB, we can accept it within two weeks. 

2.2     The illustrations, drawings, indications of weight and measure are only approximation measures, as far as they are not expressively defined as binding. We reserve ownership and copyrights to the all order-related documents left to the customer such as calculations, drawings etc. These documents shall not be made available to third parties, unless we give our explicit written consent to the customer. 

2.3      Partial shipments are permitted. 

2.4     We are generally entitled to make excess and short deliveries up to 10%. 

2.5     If not expressively stated otherwise in the order, reworking and the related falling below tolerance is permitted at up to 10% of the quantity delivered. 

2.6     If call orders of a certain quantity have been made, they are to be retrieved by the customer within the time agreed upon – if no such agreement has been made, within 12 months on conclusion of the contract. If within the retrieval time the complete agreed delivery quantity is not retrieved, we are freed from the liability of advance performance and entitled to demand the purchase price for the quantity not retrieved step by step for performance. 

               3       Tool costs 

3.1    If we produce special tools for the execution of a delivery order at a customer’s request, these tools are invoiced separately. For firm orders with binding purchase quantities it can also be agreed to allocate the tool costs to the price of the items. In all cases the special tool remain our property. 2 years after the last delivery of a custom-made article we are entitled to scrap the special tools. 

        4      Price and payment 

4.1    For orders at a net value of goods over 1,500,- € the packaging costs are not charged within Germany, except for that we deliver free of charge within the country as cargo from this merchandise value on. Exempt from that is the charging of legal toll and a surcharge for logistics of 5.10/palette. The amount is invoiced in Euros. 

4.2     All payments, if not expressively agreed differently in writing, shall be made immediately on receipt of the delivery without deduction. We reserve the right to demand arbitrary payments via advance payments, PayPal or debit entry. A payment is only deemed to have been made as agreed when we can dispose of the amount at a bank freely. Checks and bills of exchange are only accepted on account of payment. Discount and expenses are payable by the purchaser. 

4.3     At delayed payment we charge default interest in the amount of at least 8% over the base rate without further notice. 

4.4     The detention of payments or a set-off with counterclaims is only permitted, if the counterclaims are assessed to be undisputed, acknowledged or legally effective. 

4.5     In the event of a deterioration of the customer’s financial circumstances that endangers our claims, especially if insolvency proceedings are opened against the assets of the customer, we are entitled at our own choice to withdraw from the part of the delivery contract that has not been fulfilled yet, to demand bailout or cash payment step by step for performance. 

4.6     Appropriate price rises can be made for deliveries that are made after more than 4 months after the conclusion of the contract, whether as agreed or due to circumstances which are beyond our control, if the prices and costs especially for personnel, raw materials and energy, that are subject to the calculation, have increased significantly. 

4.7      As far as not agreed differently, our basic prices already include copper worth 150,--/100 kg. The copper surcharge is invoiced separately on the day the goods are ready for delivery according to the corresponding DEL-notice (LME) plus 1% procurement costs surcharge. 

4.8     If a metal covering and procurement at the DEL-rating is not possible or guaranteed at full volume, we will calculate with the actual metal procurement prices. 

5        Transfer of risks and delivery time 

5.1     The beginning of the delivery time stated by us requires the punctual and proper fulfillment of the customer’s duties. The objection of the unfulfilled contract is reserved.

5.2     In default of a special agreement the risk passes to the customer, as soon as we have handed over the goods to the shipping company or, if delivery is delayed through no fault of our own, as soon as we have announced the goods to be ready for shipment, even if there are partial deliveries or if we have taken over other services such as the delivery charges or transportation. 

5.3     The period of delivery starts with the sending of the confirmation of order, but not before all technical and commercial details of the execution of the order are clarified. The period of delivery is kept when the goods have left the works by the time the deadline expires or the readiness for shipment has been announced, if the delivery is delayed through no fault of our own. 

5.4     If delivery is delayed because of circumstances that are due to the customer (default of acceptance),

·        risk is transferred to the customer at notice of readiness to be shipped;

·        we store the goods at the customer’s costs;

·        if goods are stored at the works we invoice at least 0.5% of the amount invoiced for the stored delivery

·        we reserve the right to withdraw rom the contract or claim damages for non-performance after the expiry of a reasonably set period of non-performance.

 6        Force majeure

 6.1    Change requests of the customer as well as unforeseen, unavoidable events and events which are beyond our control (e.g.  strikes, lockouts, operational breakdowns, difficulties with the acquisition of materials and energy, lack of personnel, energy or raw materials, measures of authorities as well as difficulties with obtaining permits, particularly import and export licenses) extend the delivery times appropriately. The same applies if there are obstacles on behalf of our presuppliers. 

6.2     If the obstacles are not only temporary both contract parties are entitled to withdraw. Damage claims are excluded in this case. 

             7      Retention of title 

7.1     We reserve title to the goods delivered until all payments from the business connection with the customer have been made. If there is a current account relation, the retention of title applies for the acknowledged balance. This also applies for all future deliveries, even if we do not refer to it expressively every time. We are entitled to take back the delivery items if the purchaser acts contrary to the agreement.

 7.2    The customer is obliged to handle the delivery items with care as long as the goods have not passed into the customer’s ownership yet. In particular the customer is obliged to insure the goods at his own costs against theft, fire and water damages at their value when new. If maintenance and technical services must be made, the customer is to perform those services on time athis own costs. As long as ownership has not passed onto the customer, the customer has to notify us immediately in writing if the delivered goods are seized or exposed to interventions of third parties. As long as the third party is not able to refund the costs in and out of court according to § 771 ZPO, the customer is liable for the loss generated for us. 

7.3     The editing and processing of the supplied goods done by the customer is always done for us without obliging us. In this case the expectant right of the customer in the goods purchased will continue in the reconstructed object. In case the processing occurs with objects not owned by us we obtain co-ownership in the new item in proportion to the objective value of the ordered item in relation to the value of the other processed items at the time of processing. The same applies in case of mixing. Provided that the mixture is composed in such a manner the object of the customer is considered as the main component it is deemed to be agreed that the customer assigns joint ownership pro rata to us and that thus resultant sole ownership or joint ownership is retained for us. To secure our claims against the customer, the customer shall also assign to us such claims accruing to him from combination of the goods subject to retention with real property against a third party; we already accept this assignment with immediate effect. In case of processing or mixture of the supplied goods with other goods we obtain co-ownership in the new goods in proportion to the invoiced price of the goods to which title is retained to the invoiced price of the other materials. 

7.4     The customer is entitled to resell the goods to which title is retained in an ordinary course of business; however, he herewith assigns to us all claims proportional to the invoice value of the goods subject to retention of title to the invoice value of other processed materials in advance that might accrue to him from the resale or further use from his customers or other third parties. 

7.5     The customer is entitled to enforce the claims from the resale as long as he complies with his payment obligations from the amounts received, is not in default of payment or in particular has not made an application for opening insolvency proceedings or payments cease to be made. 

7.6     If this is the case, we can revoke the permit for further processing and demand that the customer disclose the receivables assigned and their debtors provide all details necessary for their collection and notify the debtor of the assignment. The taking back of goods subject to retention of title does not constitute any cancellation of the contract. 

7.7     As long as the retention of title exists, the customer is only allowed to mortgage or pawn the object with our written consent. The customer must inform us immediately if there are any accesses of third parties to the goods subject to retention of title. 

7.8     We engage to release the securities we are entitled to to the customer insofar as their value exceeds the claims to be secured by more than 20%.

8        Liability for delay 

8.1     We are liable for delay according to the legal regulations if the customer claims damage compensation which is based on intention or gross negligence of our representatives or vicarious agents. If we are found to be not in breach of contract in connection with a delay, we are only liable for the foreseeable typical damage. 

8.2     We are liable for delay according to legal regulations if we culpably violate an essential contractual obligation. If we are found to be not in breach of contract in this case, we are only liable for the foreseeable typical damage. 

8.3     Liability for culpable injury to life, the body or health remains unaffected. 

8.4     If not agreed differently in the foregoing, liability for default is excluded.

9       Liability for defects 

9.1    The warranty rights of the customer require that the customer has properly fulfilled his obligations of examination and notification of defects under § 377 HGB. Defects or false deliveries must be notified to us in writing immediately, however no later than 10 days after receipt of the goods, defects not apparent upon inspection must be notified within 3 days after discovery. If these deadlines are exceeded, the guarantee claims and all other claims expire under §377 HGB. 

9.2     The limitation period is 12 months as of delivery. The legal limitation period applies for damage claims based on intention and gross negligence, as well as on injury of life, the body and health based on intentional or grossly negligent violation of duty by us. As long as the law under § 438 sec. 1 No. 2 (Construction and construction items), § 445b BGB (claims of recourse) and § 634a sec. 1 BGB (construction defects), as long as the law provides longer periods. Our consent must be obtained prior to any return of goods. 

9.3     Unless agreed otherwise, any customary or technically unavoidable deviations in quality, colour, length or equipment are not considered as defects. The same applies to the usual wear and tear. 

9.4     If we are responsible for a defect, it is in our sole discretion to make a supplementary performance or replacement. In case of a supplementary performance we are obliged to bear the expenditure for work and material costs necessary for the remedying of the defect. The customer’s claims for the expenditure necessary for the supplementary performance, especially transport, road, labour and material costs, are excluded, if the expenditure rises because the goods delivered by us has to be transported to a location other than the place of business of the customer, unless transport is conformal to the normal procedures.

9.5     If the supplementary performance or replacement fails, the customer is entitled to demand a price reduction for that order (demand a reduction) or to withdraw from the contract. 

9.6     In the case of essential purchased components, we have the right at first to limit our liability to the warranty claims we are entitled to from the supplier of the purchased goods unless satisfaction from the assigned right fails or the assigned claim cannot be enforced for any other reason. In this case the customer is entitled to the rights mentioned in 9.4. 

9.7      We are liable for defects according to legal regulations if the customer claims damage compensation which is based on intention or gross negligence of our representatives or vicarious agents. If we are found to not in breach of contract in connection with a defect liability, we are only liable for the foreseeable typical damage. 

9.8     We are liable for defects if we culpably violate an essential contractual obligation. If we are found to not in breach of contract in this case, we are only liable for the foreseeable typical damage. 

9.9     Liability for culpable injury to life, the body or health remains unaffected, so does liability under the German Product Liability Act. 

10      Limitation of liability 

10.1    We assume limited liability for intentional misconduct and gross negligence. 

10.2    We are liable for simple negligence – except for the case of an injury of life, the body or health – only if essential contractual obligations (cardinal duties) are violated. Liability is limited to typical and foreseeable damage. 

10.3    Liability for indirect and unforeseeable damage, loss of production and use, loss of profit, missed savings and economic loss due to third party claims are excluded in the event of simple negligence – except for the case of an injury of life, the body or health. 

10.4    Any further liability – without regard for the legal nature of the claims made – are excluded. The foregoing liability limitations or exclusions, however, do not apply for a statutory no-fault liability (e.g. according to the German Product Liability Act) or as a result of a guarantee unrelated to faultive behaviour. 

10.5    As far as liability according to numbers 2 and 3 are excluded or limited, this also applies for the personal liability of our employees, workers, representatives, organs or vicarious agents. 

10.6    The limitation for claims not being subject to the limitation period of the liability for defects, a preclusive period of 18 months applies. It starts at the time when the customer should reasonably become aware of the defect and the identity of the person responsible for it. The legal limitation period applies for damage claims due to intentional misconduct and gross negligence, as well as injuries of life, the body and health which are due to our intentional or negligent violation of our duties.

 11.     Place of performance, place of jurisdiction, arbitration 

11.1   If not agreed differently, the place of performance for all services of the delivery contracts including payments is our place of business.

11.2   Place of performance and sole place of jurisdiction for all disputes arising from this contract is our place of business. However, we are also entitled to issue proceedings in the court having jurisdiction at the customer’s place of business.

11.3   German law is exclusively applicable under the integration of the UN Convention on contracts for the International Sale of Goods from the 4th of April 1980. 

11.4    If one regulation of these conditions or a part of a regulation should be or become invalid, the other regulations respectively the rest of the regulation remains effective. The regulations are to be interpreted or complemented in such a way that the intended economic purpose is accomplished as closely as possible in a legally allowed manner. The same applies for possible gaps in the contract.                                                                                                                                                    

 

 

 

 

 

 

 

Last updated 2021

 

 

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