(last amended March 2019)
I – Validity, conclusion of contract
1. These General Conditions of Sale shall apply for all present and future contracts with commercial buyers, legal entities under public law and special funds under public law relating to the supply of goods and services. The Buyer’s Conditions of Purchase shall not be recognised, even if not we do not expressly exclude them again on receipt.
2. Our offers are non-binding and subject to confirmation. Any verbal agreements, promises, guarantees or statements made by our employees regarding the designated use of our products in connection with the contract shall not be binding until confirmed in writing.
3. Test certificates in accordance with German standard DIN EN 10204 shall only be provided if agreed upon in writing. We are authorised to forward copies of such certificates without specifying the names of suppliers and/or issuers.
4. In cases of doubt, all trade terms shall be interpreted according to the most recent Incoterms.
II – Prices
1. Unless otherwise agreed, prices shall be understood as being ex works or ex warehouse plus freight, value added tax and packing/loading aids.
2. The goods shall be invoiced “gross for net”. Requested test certificates (German standard DIN EN 10204) shall be charged separately and in accordance with the individual arrangement.
III – Payment and settlement
1. Payment shall be made immediately and in full – i.e. without any cash discount deduction – at such a time that we have access to the amount on the due date. This shall also apply in the event that the test certificates (in accordance with German standard DIN EN 10204) that are to be delivered are missing or arrive late. The Buyer shall bear all payment transaction costs. The Buyer shall only be entitled to exercise his/her right of retention or to offset receivables if his/her counterclaims are undisputed or have become legally binding; these counterclaims must also be based on the same contractual relationship with the Seller and/or would entitle the Buyer to refuse performance under section 320 of the German Civil Code (Bürgerliches Gesetzbuch, BGB).
2. Unless otherwise agreed, our invoices shall be due 30 days from date of invoice. Should the Buyer exceed the due date, we shall be entitled (at the latest from the date of default) to charge default interest at the amount specified by law (section 288 BGB), unless higher rates have been agreed upon. We also reserve the right to charge an additional €40.00 for defaults. At the same time, we reserve the right to assert further claims of damages resulting from delayed payment.
3. Should it become evident after the conclusion of the contract that payment is jeopardised by the Buyer’s lack of solvency, or should the Buyer be in default with a considerable portion of the amount due, or should other circumstances arise indicating a material deterioration in the Buyer’s solvency, we shall be entitled to refuse any agreed advance performance. In such cases, we shall be also entitled to demand payment of all receivables not yet due from the current business relationship with the Buyer.
4. Any agreed upon cash discount shall always relate only to the invoiced value excluding freight and shall only be granted if all amounts owed by the Buyer have been settled at the time of the discount. Insofar as nothing to the contrary has been agreed, discount periods shall commence from the invoice date.
IV – Deliveries, delivery periods and delivery deadlines
1. Our delivery commitment is subject to our having been supplied correctly and on time ourselves; in the case of imported material, it is also subject to our receiving surveillance documents and import licences in good time.
2. Delivery times stated shall be approximate. Delivery times shall commence with the date of our order confirmation and shall only take effect provided that all order details are clarified in good time and that all of the Buyer’s obligations – e.g. to provide all required official certificates, provide letters of credit and guarantees, pay instalments, or send drawings approved by the Buyer – are met in good time.
3. Compliance with delivery periods and deadlines shall be determined based on the time at which the products in question were dispatched from the factory or warehouse. These shall be deemed complied with when readiness for shipment has been communicated, even if the goods cannot – through no fault of ours – be dispatched on time.
4. The Buyer shall ensure smooth acceptance of the goods and shall inform us in good time of any difficult delivery conditions. The Buyer shall unload the goods properly and without delay. If we or any third parties assist in unloading, this shall be done without legal obligation and at the risk of the Buyer.
5. In the event of force majeure, we shall be entitled to postpone deliveries for the duration of the hindrance until an appropriate start-up time. This shall also apply if such events occur during an ongoing delay. Force majeure shall be defined as including monetary, trade policy and other sovereign measures, strikes, lockouts, operational disruptions for which we are not responsible (e. g. fire, machine and roller breakage, lack of raw materials and energy), obstruction of transport routes, delays in import/customs clearance, as well as all other circumstances which, through no fault of ours, render performance of deliveries and services considerably more difficult or impossible. It is irrelevant whether the circumstances occur at our premises or at those of the supplier or another upstream supplier. If, as a result of the aforementioned events, one of the contracting parties can no longer be reasonably expected to perform the contract, said party shall be entitled to withdraw from the contract by means of an immediate written notification.
V – Retention of title
1. The delivered goods shall remain the property of the Seller until the purchase price has been paid in full. The Buyer shall take the necessary measures to assert the retention of title – or a comparable security interest in the country of his/her place of business or in a different country of destination – and to provide evidence of this to us on request.
2. As far as permissible under the law of the country in which the goods are located, the following supplementary provisions shall apply:
a. The delivered goods shall remain our property (reserved goods, i.e. goods subject to retention of title) until all claims have been settled, in particular the outstanding balances to which we are entitled within the scope of the business relationship (reservation of balance). This shall also apply to future and conditional claims and also if payments are made on specially designated claims. This reservation of balance shall expire definitively upon settlement of all claims that are still outstanding at the time of payment and that are covered by this reservation of balance. However, the reservation of balance shall not apply for prepayment or cash transactions that are settled after each delivery.
b. Goods subject to retention of title shall be processed and prepared on our behalf as a manufacturer as defined in section 950 of the German Civil Code (BGB) without any obligation on our part. The processed and prepared goods shall be regarded as reserved goods within the meaning of (2a) above. If the Buyer processes, combines or mixes the reserved goods with other goods, we shall be entitled to co-ownership of the new item on a pro rata basis, i.e. based on the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. Should our property cease to exist due to combining or mixing, the Buyer herewith transfers to us the ownership rights of the new stock or the item to which he/she is entitled within the scope of the invoice value of the reserved goods and shall store them for us free of charge. Our co-ownership rights shall be deemed reserved goods within the meaning of (2a) above.
c. The Buyer shall only be entitled to sell the reserved goods in the ordinary course of business at his/her normal business conditions and as long as he/she is not in default, provided that the receivables arising from the resale are transferred to us in accordance with (d) to (e) below. He/she shall not be entitled to dispose of the reserved goods in any other way.
d. The receivables arising from the resale of the reserved goods are herewith assigned to us together with all securities that the Buyer acquires for the claim. These shall serve as security to the same extent as the reserved goods. If the reserved goods are sold by the Buyer together with other goods not sold by us, the receivables from the resale shall be assigned to us on a pro rata basis, based on the ratio of the invoice value of the reserved goods to the invoice value of the other goods sold. If goods in which we have co-ownership shares are sold, a portion corresponding to our co-ownership share shall be assigned to us.
e. The Buyer shall be entitled to collect receivables from the resale. This entitlement shall expire if revoked by us, but at the latest if there is a delay in payment, if a bill is not cashed or if an application is filed for initiating insolvency proceedings. We will only make use of our right of revocation if, after entering into the contract, it becomes apparent that our claim for payment from this or other contracts with the Buyer is endangered by his/her lack of solvency. At our request, the Buyer shall be obliged to inform his/her own buyer about the assignment to us without delay and to provide us with the documentation necessary for collection.
f. The Buyer shall inform us immediately of any seizure or other impairments by third parties. The Buyer shall bear all costs arising in connection with preventing access to, sorting or returning the reserved goods, insofar as these costs are not reimbursed by third parties.
g. Should the invoice value of the existing collateral exceed the secured receivables – including ancillary claims (interest, costs, etc.) – by a total of more than 50%, we shall be obliged, if requested to do so by the Buyer, to release collateral items of our choosing.
VI – Weights
1. Weights shall be determined by the weighing carried out by us or our supplier. We can also determine weights without weighing by length and/or theoretically, whereby we can determine the dimensions according to statistical methods. We shall be entitled to increase the theoretical weight by 2.5% (commercial weight) to compensate for rolling and thickness tolerances and to base the calculation on a commercial weight of 8 kp/dm³.
2. The quantities, bundles, etc., stated in the delivery note shall not be binding for goods calculated according to weight. The total weight of the consignment shall apply unless the goods are usually weighed individually. Differences in relation to the calculated individual weights shall be allocated proportionally.
VII – Inspection and acceptance of goods
1. If inspection has been agreed upon, the goods can only be inspected in our warehouse, immediately after notification of readiness for acceptance. The Buyer shall bear the material and personal inspection costs; normal practice is for us to cover the inspection costs in advance and to settle them with the Buyer afterwards. Inspection costs are not subject to cash discount and are payable immediately on receipt of invoice.
2. If, through no fault of ours, the goods are not inspected, not inspected on time or not inspected completely, we shall be entitled to dispatch them without inspection or to store them at the Buyer’s expense and risk and to charge them to him/her.
3. In the case of inspections that go beyond the agreed standards, the Buyer shall bear all attendant risks and costs.
VIII – Call orders, continuous deliveries
1. In the case of contracts with continuous delivery, the Buyer shall divide the call-ups and grades of the goods into approximately equal monthly quantities; if this is not the case, we shall be entitled to specify these ourselves at our own discretion.
2. If the individual call-ups exceed the total contract quantity, we shall be entitled – but not obliged – to deliver the surplus quantity and to charge it at the prices applicable at the time of call-up/delivery.
IX – Dispatch, transfer of risk, packaging, partial delivery
1. We shall determine the route and means of dispatch as well as the forwarding agent and carrier. Unless otherwise agreed upon in writing, our deliveries shall take place ex warehouse.
2. The Buyer shall call up without delay goods that have been notified to him/her as being ready for dispatch in accordance with the contract; if he/she fails to do so after a reminder has been sent, we shall be entitled to dispatch them at our discretion at the Buyer’s expense and risk or to store them at our discretion and to invoice them immediately.
3. If, through no fault of ours, transport by the intended route or to the intended location is not possible in the scheduled time or is significantly impeded, we shall be entitled to deliver by another route or to another location; in such cases, the additional costs incurred shall be borne by the Buyer. The Buyer shall be given the opportunity to comment on this beforehand.
4. In the case of call-ups, the risk shall pass to the Buyer upon provision of the goods for collection. In all other respects, the risk – including that of confiscation of the goods – shall pass to the Buyer once the goods have been handed over to a forwarding agent or carrier; at the very latest, the risk shall pass to the Buyer once the goods have left the warehouse or the supplier’s works – this shall apply for all transactions, including freight prepaid and freight-free deliveries. We shall only provide insurance if specifically instructed to do so by the Buyer and if the costs are borne by same. The Buyer shall be responsible for unloading the goods at his/her own cost.
5. The goods will be delivered unpacked and without protection against rust. The goods will be delivered packed if agreed upon beforehand. In such cases, we will provide packaging, protection and/or transport aids at the Buyer’s expense, based on our own experience. These will be taken back at our warehouse. We will not bear any costs incurred by the Buyer in returning the packaging or disposing of it him/herself.
6. We shall be entitled to make partial deliveries to a reasonable extent. We shall also be entitled to deliver a reasonable amount more or less than the agreed delivery quantities. The indication of an “approximate” quantity entitles us to deliver up to 10% more or less than agreed.
X – Liability for material defects
1. The internal and external characteristics of the goods, in particular their quality, grade and dimensions, shall – unless otherwise agreed – be determined according to the DIN and EN standards in force when the contract was concluded and according to ASTM/ASME standards; in the absence of such standards, these shall be determined according to practice and custom. References to standards and similar regulations, to test certificates in accordance with German standard DIN EN 10204 and similar certificates as well as information on the qualities, grades, dimensions, weights and usability of the goods shall not constitute warranties or guarantees; declarations of conformity and corresponding markings such as CE and GS shall not constitute warranties or guarantees either.
2. The statutory provisions shall apply for the inspection of goods and notification of defects, provided that the obligation to inspect the goods after delivery also extends to any inspection certificates in accordance with German standard DIN EN 10204 and that we are to be notified in writing of any defects in the goods and inspection certificates.
3. In the event that the goods are to be installed into or attached to another object, the Buyer shall inspect – at minimum by means of random checks – the properties relevant for the designated end use beforehand and shall notify us immediately of any defects in the goods. Should the Buyer, in the event that the goods are to be installed into or attached to another object, fail to inspect – at minimum by means of random checks – the properties relevant for the designated end use, this shall constitute a serious violation of the duty of care towards us in the ordinary course of business (gross negligence). In this case, warranty rights in respect of these properties shall only be considered if the defect in question has been fraudulently concealed or if a guarantee has been given for the quality of the item.
4. In the event of a justified, timely notification of defects, we can choose to either remedy the defect or deliver goods free of defects (subsequent performance). Should said subsequent performance fail or be refused, the Buyer shall be entitled to exercise his/her statutory rights. If the defect is not significant or if the goods have already been sold, processed or converted, he/she shall only be entitled to a reduction of the purchase price.
5. In the event that the Buyer has, in accordance with their type and designated use, installed the goods into another object or attached them to another object, he/she may claim reimbursement of the costs associated with removing the defective goods and installing or attaching the defect-free replacement goods (“dismantling and installation costs”) only in accordance with the following provisions:
Necessary dismantling and installation costs are only those that have resulted directly from the dismantling/removal of the defective goods and the installation/attachment of identical goods, that have been incurred on the basis of competitive market prices and that have been evidenced (at minimum) by the Buyer by means of appropriate written documents.
Additional costs incurred by the Buyer for consequential damages such as loss of profit, downtime costs or additional costs for replacement purchases shall not constitute dismantling and installation costs and are therefore not recoverable under section 439(3) of the German Civil Code (BGB). The same shall apply for sorting costs and for additional costs resulting from the sold and delivered goods being located at a place other than the agreed place of performance.
The Buyer shall not be entitled to request advance payments for dismantling and installation costs or other expenses incurred in connection with subsequent performance.
6. Expenses in connection with subsequent performance shall only be borne by us to the extent that they are reasonable in individual cases and are not disproportionate to the purchase price of the goods. Expenses shall be said to be disproportionate above all in cases where the amount claimed, in particular for dismantling and installation costs, exceeds 150% of the purchase price of the goods invoiced by us or 200% of the value of the defective merchandise. Any costs incurred by the Buyer remedying a defect him/herself without the legal requirements being fulfilled shall be excluded; the same shall apply for dismantling and installation costs, insofar as the goods we delivered were no longer in their original condition having been processed by the Buyer prior to installation. We shall not assume any expenses arising from the goods sold being brought to a place other than the agreed place of performance.
7. Once the Buyer has inspected the goods as agreed, he/she shall not be entitled to complain about material defects that were ascertainable at the agreed type of inspection. If a defect remained unknown to the Buyer due to negligence, he/she can only assert rights for this defect if we have fraudulently concealed the defect or have guaranteed the quality of the good.
8. If goods are sold as declassified material, the Purchaser shall not – with respect to the reasons cited for said declassification or to defects that are normally to be expected – be entitled to any rights regarding material defects. In the case of the sale of second-class goods, our liability for material defects shall be excluded in accordance with section XI(2) of these General Conditions of Sale. Rust shall not constitute a defect unless otherwise agreed and insofar as the agreed standards are complied with.
9. Further claims on the part of the Buyer shall be governed by section XI of these General Conditions of Sale. The Buyer’s rights of recourse in accordance with sections 445a and 478 of the German Civil Code (BGB) shall remain unaffected.
XI – Damages and statute of limitations
1. For us – including our executive employees and other vicarious agents – liability due to breach of contractual and non-contractual obligations, in particular due to impossibility, delay, culpa in contrahendo and tort, shall only apply in cases of intent and gross negligence; in cases of gross negligence, this shall be limited to the typical damage foreseeable at the time the contract was entered into. In all other respects our liability shall be excluded, including for defects and consequential damages.
2. These restrictions shall not apply in the case of culpable breaches of fundamental contractual obligations the violation of which jeopardises the fulfilment of the purpose of the contract, or the fulfilment of which makes the proper performance of the contract possible in the first place and is relied upon by the contractual partner. Furthermore, these limitations shall not apply in the case of culpably caused damage to life, body or health; similarly, they shall not apply if and to the extent that we have guaranteed the quality of the sold item or in cases of mandatory liability in accordance with the German Product Liability Act (Produkthaftungsgesetz, ProdHaftG). This shall not affect the rules regarding burden of proof.
3. Unless otherwise agreed, contractual claims arising for the Buyer against us on the occasion of and in connection with the delivery of goods – including claims for damages for defective goods – shall expire under the statute of limitations one year after said goods have been delivered. This shall not apply where sections 438(1) No. 2, 478 or 634a(1) No. 2 of the German Civil Code (BGB) provide for longer periods; similarly, it shall not apply in the event of injury to life, body or health, in the event of an intentional or grossly negligent breach of duty on our part or in the event of fraudulent concealment of a material defect. In the case of subsequent performance, the limitation period shall not start anew, but shall be suspended until three months after the subsequent performance.
XII – Place of performance, jurisdiction, applicable law
1. The place of performance for our deliveries and for the Buyer’s payments shall be our place of business in Wülfrath, Germany. The place of jurisdiction shall be the competent court in Wuppertal, Germany. We shall also be entitled to file an action against the Buyer in his/her own place of jurisdiction.
2. The law of the Federal Republic of Germany shall apply to all legal relations between us and the Buyer, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11 April 1980.
XIII – Applicable version
The German version of these General Conditions of Sale shall be considered the definitive version.