Edition January 2015
A. GENERAL PROVISIONS
I. Formation of contract
- All sales are made exclusively upon the following terms and conditions and we hereby reject any different or additional terms or conditions contained in Buyer’s purchase order or any other document submitted by Buyer.
- Our quotations are subject to reconfirmation unless expressively stated otherwise.
- All orders by Buyer must be expressly accepted by us in writing in order to be deemed accepted. Silence cannot act as an acceptance.
- All contract related documents must be in writing; however, a qualified electronic signature is not required unless it is otherwise agreed to with the Buyer.
II. Terms and conditions of payment
- Full payment of the purchase price is due not later than as agreed in the contract.
- Subject to the rights in paragraph A II 5, if it is agreed that Buyer is to take delivery within a specific period after our notification that the merchandise is ready for shipment, then we are permitted to invoice the merchandise at that time and the purchase price, in that case, will be due 30 days after the date of invoice.
- Payment shall be made without any deduction of discounts, in such a manner that we have the sum at our disposal on the date on which payment falls due. Buyer may only offset claims that are uncontested or have legal force; Buyer has a right of retention only insofar as such right is based on the same contractual relationship.
- If the time allowed for payment is exceeded, interest at the rate of 8% above the respective base rate will be charged.
- To the extent that our right to payment is endangered by subsequent events yielding a significant deterioration in financial condition, we have the right to declare due any accepted bill of exchange irrespective of maturity.
- In the case of No. 5, we can require advance payments for deliveries still outstanding.
- Buyer can avoid the legal consequences stated in No. 5 by offering security in the amount of our jeopardized claim for payment. Should the Buyer fail to provide advance payment or appropriate security within a reasonable period of time, we have the right to cancel the contract without liability to Buyer for damages of any kind.
- The statutory provisions concerning default of payment shall remain unaffected.
- In the case of delayed payment relating to a perceptable decline in Buyer’s financial condition, we also have the right to cancel the contract without prior notice.
We are entitled to the usual security, adequate in kind and extent for our claims, even if such
claims are conditional or limited in time.
IV. Retention of Title
- We remain owner of the goods until the price and all other sums owing by the Buyer to us are paid in full.
- The Buyer shall immediately notify us of any seizure or other interference with our rights by third parties.
- If the value of the securities provided exceeds the security claims by more than 10% in all, we shall be obliged, at the Buyer’s request to release securities at our option.
B. PERFORMANCE OF DELIVERY
I. Periods and dates for delivery
- Periods for delivery commence as of the date stated in our order confirmation, but not prior to complete clarification of all order details; the same applies to delivery dates. All delivery periods and dates are approximate, and we shall not be responsible for delays in delivery or performance due to unforeseen causes such as production outages or difficulties in timely obtaining necessary fuels, materials, parts or, to the extent agreed to or common in the trade, complementing quantities.
- If Buyer fails to fulfill in due time any contractual obligations, including ancillary and secondary obligations, such as the opening of a letter of credit, the procurement of domestic or foreign certificates, the effecting of an advance payment, or the like, then we are entitled to defer the periods and dates for delivery in accordance with the requirements of our production schedule, without prejudice to our rights arising from any default on the part of Buyer.
- The date of shipment ex works shall be definitive regarding compliance with the period and dates for delivery.
- In cases of Force Majeure, the delivery periods and dates shall be appropriately extended. Events of Force Majeure include, but are not limited to, strikes or other labor disturbances (include those involving the businesses of third parties), delays in transportation, repairs to equipment, Government actions and other circumstances not reasonably within our control. We shall notify the Buyer of an event of Force Majeure without delay. The Buyer is permitted to cancel the contract no earlier than three months after receipt of such notification.
- In the event of late delivery, the Buyer may exercise the rights in §§ 281, 323 BGB only after setting a reasonable period for delivery, which – to the extent in deviation from §§ 281, 323 BGB – is combined with the declaration that Buyer rejects acceptance of performance after expiration of the period; upon successful expiration of the period, any claim for performance is excluded.
- In the case of late delivery, we shall be liable for delay damages established by Buyer pursuant to the conditions and limitations contained in paragraph C. We shall promptly notify the Buyer of the foreseeable length of the delivery delay. After being notified of the length of the delivery delay, the Buyer shall promptly notify us of the amount of the foreseeable delay damages. If the estimated damages for delay exceed 20% of the value of the merchandise subject to the delay, the Buyer is required to promptly make a purchase of substitute goods (“cover”), or, as the case may be, take advantage of the cover possibilities demonstrated by us with cancellation of the contract for the merchandise subject to the delivery delay; the proven additional costs from the cover transaction and the proven delay damages for the interim period shall be reimbursed by us. If the Buyer does not fulfill its damage mitigation obligations according to the previous provision, then our liability for proven delay damages is limited to 50% of the value of the affected merchandise.
II. Dimensions, weight, quality
Deviations from dimensions, weight and quality are admissible within the limits of DIN or other
applicable standards. Weight is determined on our calibrated scales and is definitive for
invoicing. Evidence of weightshall be given by presentation of the weighing record. Where it is
not customary for items to be weighed individually, the total weight of the shipment shall apply
in each case. Differences with respect to thecalculated weight of individual items shall be
distributed proportionally over the total weight.
III.Shipment, packing and passing of risk
- We shall designate the forwarding agent or carrier.
- If the loading or forwarding of the merchandise is delayed for any reason for which Buyer is responsible, we are entitled, at the expense and risk of Buyer, to store the merchandise at our sole discretion, to take all measures regarded as suitable for the preservation of the merchandise, and to invoice the merchandise as delivered. The same applies if merchandise notified as ready for shipment is not called for within four days. The statutory provisions concerning default in taking deliver remain unaffected.
- Where customary, we shall deliver the merchandise packed and protected against rust; Buyer shall carry the cost. Packing, protection and transport materials will not be taken back. Packing or special protection exceeding that necessary for transport, e.g., for long-term holding or warehousing, require an express agreement.
- In the event of any damage occurring during transport, Buyer must immediately arrange for the facts to be established by the appropriate agencies.
- 5. Risk shall pass to Buyer when the merchandise is handed over to the forwarding agent or the carrier, but in no event later than when the merchandise leaves the factory or the warehouse.
- The merchandise conforms to the contract if, at the time of passing of risk, the merchandise does not substantially deviate from the agreed to specifications; conformance of the merchandise to the contract and absence of defect shall be measured exclusively according to the express agreements concerning quality and quantity of the ordered merchandise. Responsibility for a specific use or a specific purpose will only be undertaken to the extent that this is expressly agreed to; otherwise the Buyer exclusively carries the risk of suitability for a particular use or purpose. We are not responsible for deterioration, loss or inappropriate handling of the merchandise after passing of risk.
- The contents of the agreed to specifications and a general agreed to use do not form a guarantee; the undertaking of a guarantee requires an express written agreement.
- The Buyer must inspect delivered merchandise promptly after receipt. Claims for defects or problems can be made only if the Buyer promptly notifies us in writing of the problem or defect; the Buyer must notify us of hidden defects promptly after discovery. After performance of an agreed to inspection, which could have discovered any defects, all claims for defects shall be excluded.
- Promptly after making any complaints, the Buyer must give us the opportunity to inspect the complained of merchandise; upon request, the complained of merchandise or a sample thereof shall be made available to us at our own expense. With respect to unsubstantiated complaints, we reserve the right to charge the Buyer with any freight and transportation costs, as well as the expenses related to inspection.
- For any merchandise that has been sold as downgraded material, e.g., so-called II-a material, Buyer has no rights under warranty regarding defects of which Buyer has been made aware or such defect as would be normal to expect.
- 6. In case of product defect, BUYER’S EXCLUSIVE REMEDY SHALL BE LIMITED TO OUR REPLACING THE MERCHANIDE THAT DOES NOT CONFORM TO CONTRACT OR; AT OUR OPTION – TAKING ACCOUNT OF THE BUYER’S WISHES –, REPAIR OF THE MERCHANDISE. Repair measures will be made by us only in isolated cases. Specifically, the measures must be appropriate to the sales price of the product, in no case over 150% of the sales price. If we do not provide a remedy within a reasonable period of time, the Buyer can establish a reasonable period of time for performance, after which the Buyer may either reduce the purchase price or cancel the contract; any further remedies are excluded.
- With respect to defects in title, we shall have the right to remedy the defect within two weeks after receipt of the merchandise. Otherwise, the last sentence of No. 6 applies.
- All claims related to nonconforming delivery must be brought within one year of delivery. The statutory limitations period for merchandise that according to its normal use is designated for building construction and has caused such to be defective shall remain unaffected.
- Buyer’s counterclaims against us pursuant to § 478 BGB are limited to the statutory extent of the claims made against Buyer by third parties and require that the Buyer has complied with its notification obligations to us pursuant to § 377 HGB.
C. GENERAL LIMITATIONS ON LIABILITY
- Insofar as these terms and conditions provide no other regulation, we are liable for damages due to breach of contractual or extra-contractual obligations only in cases of specific intent or gross negligence of our legal representatives or our senior executives and in cases of fault in breach of material contractual obligations. In case of fault in breach of material contractual obligations, we are liable only for foreseeable damage typical for this type of contract, except in cases of specific intent or gross negligence of our legal representatives or senior executives. WE SHALL HAVE NO LIABILITY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES.
- The previous limitation of liability does not apply to bodily injury or death.
- This provision does not affect claims for personal injuries or damage to privately used property in accordance with product liability law.
I. Proof of Export
If a Buyer who is resident outside the Federal Republic of Germany (extra-territorial Buyer), or
Buyer’s representative agent, collects any merchandise and forwards or ships it to a foreign
country, Buyer must furnish us with any export certificate that may be required for tax purposes.
If such a certificate is not furnished, Buyer shall pay the rate of value added tax on the invoice
amount applicable to deliveries made within the Federal Republic of Germany.
II. Applicable Law
This agreement shall be governed by the laws of the Federal Republic of Germany. The United
Nations Convention on Contracts for the International Sale of Goods (April 11, 1980) is excluded.
III. Place of performance and jurisdiction
Place of performance and jurisdiction for both parties is Düsseldorf. We are also permitted to
bring suit against the Buyer in the jurisdiction were Buyer is located
Last updated: 20.06.2017