Status August 2012
We sell exclusively on the following terms and conditions of sale, delivery and payment. The buyer’s terms and conditions of purchase are hereby expressly rejected. Our general terms and conditions of business shall apply to the entire future business relationship unless the buyer is not a merchant within the meaning of the German Commercial Code (HGB).
§ 1 Conclusion of contract
As a rule, offers of the seller are subject to change and non-binding. The delivery contract shall only be concluded upon our acceptance of the buyer’s order (order confirmation). Block orders (= call-off orders) require express agreement, as do redispositions. For goods purchased on call, the longest period is five months, within which the goods must be accepted in full, unless expressly agreed otherwise. Amendments to the contract and verbal subsidiary agreements shall only be effective if confirmed in writing. Transactions for delivery by a fixed date require a special agreement.
§ 2 Price
The prices are based on the cost structure on the date of the order confirmation. If a binding price agreement has been concluded, the seller may nevertheless adjust the prices if four months have passed since the conclusion of the contract and the delivery or service is subsequently affected directly or indirectly and made more expensive by additional public charges, ancillary charges, freight charges or their increase or other statutory measures or a change in cost factors such as wages or material costs on which the seller’s prices are based. This does not apply to services to a non-merchant. Unless otherwise agreed, the prices are ex Seller’s warehouse. Packaging will be charged separately and will not be taken back. All prices quoted are exclusive of the statutory value-added tax applicable at the time of delivery, which will be charged and shown additionally.
§ 3 Tolerances
§ 3.1 Technical tolerances
The tolerances customary in steel construction apply to the fulfilment of the technical properties of our products.
§ 3.2 Quantity tolerances for special articles
An order shall be deemed to have been fulfilled by the Seller in terms of quantity if the delivery has been made on the basis of the Buyer’s order quantity with a tolerance of +/- 10 %.
§ 6 Limitation of Liability and Statute of Limitations
We shall only be liable for breach of contractual and non-contractual obligations, in particular for impossibility, delay, culpa in contrahendo and tort – including for our executive employees and other vicarious agents – in cases of intent and gross negligence, limited to the typical contractual damage foreseeable at the time of conclusion of the contract. These limitations shall not apply in the event of culpable breach of material contractual obligations, insofar as the achievement of the purpose of the contract is jeopardised, in cases of mandatory liability under the Product Liability Act, in the event of injury to life, limb or health and also not if and insofar as we have fraudulently concealed defects in the item or guaranteed their absence. The rules on the burden of proof shall remain unaffected. Unless otherwise agreed, contractual claims which the Buyer has against us on the grounds of or in connection with the delivery of the goods shall become statute-barred one year after delivery of the goods. This period shall also apply to such goods which have been used in accordance with their customary manner of use for a building and have caused its defectiveness, unless this manner of use has been agreed in writing. This shall not affect our liability for intentional and grossly negligent breaches of duty or the limitation of statutory rights of recourse. In cases of subsequent performance, the limitation period shall not start to run again. Our invoices are due within 30 days (payment term) after the invoice date. The buyer shall be in default at the latest 10 days after the due date of our claim without the need for a reminder. Discount deductions are inadmissible.
§ 7 Payment and default
Counterclaims disputed by us or not legally established entitle the buyer neither to retention nor to set-off. If the payment deadline is exceeded, at the latest from the time of default, we shall be entitled to charge interest at the respective bank rates for overdraft facilities, but at least interest at the rate of 8 percentage points above the base interest rate, in the case of non-merchants at the rate of 5 percentage points above the base interest rate. We reserve the right to claim further damages for default.
§ 8 Retention of title
The delivered goods remain the property of the seller until full payment of all claims of the seller against the buyer. Insofar as it is part of his normal business operations, the buyer is entitled to resell and process the goods subject to retention of title. However, resale shall only be permissible if the Seller’s retention of title is preserved and secured by the Buyer. Pledging or transfer of ownership by way of security of the reserved goods by the buyer is not permitted. The buyer hereby assigns to the seller the buyer’s claim arising from the resale of the reserved goods up to the amount of the seller’s total claim as security and shall inform its customer of the assignment to the seller on a case-by-case basis. The seller accepts the assignment. Notwithstanding the assignment, the Buyer shall be entitled to collect the assigned claim from his customer as long as he fulfils his obligations towards the Seller and does not suffer a loss of assets. If the value of the securities existing for the Seller exceeds the Seller’s claims by more than 20% in total, the Seller shall be obliged to release securities of the Seller’s choice at the Buyer’s request. The buyer is obliged to inform the seller immediately of all circumstances in connection with the reserved property – resale and assignment of claims, combination, mixing, processing, collection of assigned claims, possible enforcement measures by third parties against the goods or claims replacing them, etc. – in each case. If the reserved goods are combined, mixed or processed with other goods not belonging to the Seller, the Seller shall be entitled to the resulting co-ownership share in the new item. If the Buyer acquires sole ownership of the new item, the contracting parties agree that the Buyer shall grant the Seller co-ownership in proportion to the value of the reserved goods in the new item. If the goods subject to retention of title are resold together with other goods, whether or not combined, mixed or processed, the advance assignment agreed above shall apply only to the amount of the Seller’s total claims. In the event of enforcement measures by third parties against the goods subject to retention of title or claims in lieu thereof, the Buyer undertakes to provide the Seller free of charge with the documents and information necessary to pursue its rights. In the event that the Seller’s rights are endangered, the Buyer undertakes to return the reserved goods to the Seller upon request, but only up to the amount of the Seller’s outstanding total claims.
§ 9 Place of performance, place of jurisdiction, applicable law
For these terms and conditions, for orders and deliveries between the Seller and foreign customers, it is agreed that the law of the Federal Republic of Germany shall apply to the entire business relationship, irrespective of the business basis on which it is based. The Uniform Law on the Sale of Goods (EKG) and/or other interstate law is also excluded for customers belonging to a contracting state. The contractual language for our business relations is German. The place of performance for all claims arising from this contract is the registered office of the seller. The place of jurisdiction for all disputes arising from the contractual relationship as well as for disputes concerning its origin and validity (also for actions on bills of exchange and cheques) is – insofar as the contractual partner is a registered trader, a legal entity under public law or a special fund under public law – the registered office of the seller.
§10 Severability clause
Should any of these terms and conditions be void for any reason, this shall not affect the validity of the remaining terms and conditions. The invalid clause shall be replaced by a provision which comes as close as possible to what the parties intended.