1. General terms
These General Terms and Conditions as presented here shall apply to all present and future business activities. Any deviating, selecting contrary or amending general terms and positions and terms, even if made known, shall not be constitutive part or potion of this agreement, unless approved prior in writing.
2. Contractual completion
a) Our offers and pricelists are unbinding. Technical modifications and changes in shape, colour, dimensions and/or weight shall remain as accepted with the reasonable. When ordering goods or services the customers bindingly declares the intention actually purchase the ordered goods and/or services. This assumption may be confirmed and asserted in writing by the order confirmation or by the delivery statement to the customer.
b) In case a contract between companies is completed electronically there will be no confirmation of the incoming order.
c) If our order confirmation is not immediately, or no later than within three working days cancelled in writing, the order is binding. Any objections or cancellations regarding the scope of the order confirmation are not possible at the point of invoicing.
d) Any contract completion is subject to correct and timely deliveries from our suppliers, in the case that we are not liable for the delivery default, especially in cases the completion of a congruent supply deal with our suppliers. Our customer will be notified about the non-availability of the service or goods without delay. Any compensation is due immediately.
e) Any deviations of the delivery volume not exceeding ±15% of the ordered amount shall be deemed permissible. The actually delivery volume shall be used as a basis for invoicing. Partial lengths in one packing unit and/or partial delivery shall be permissible, as far as this is reasonable for the customer and unless no other agreements have been made in writing previously. For repeat orders the full identical volume with previous deliveries shall only be warranted if this has been agreed explicitly.
f) If the customer is incorporated faultless goods with minor faults or defects will only be accepted as a return if this has been agreed previously in writing and compensated to up to and no more than 80%.
Unless otherwise agreed in the order confirmation, all our prices are understood as ex works, excluding packaging, which will be invoiced separately. The legally defined and prescribed sales and value added tax is not included in our prices, and this will be shown separately in the invoice at the time of invoicing. All our prices are variable and linked to the quotes of “NEMetallverarbeiter” (high DEL noting). Our order confirmation will show the current DEL noting at the date of the receipt of the order. We therefore reserve the right to adjust our prices appropriately if after the signing of the contract there are increases or decreases of costs, in particular due to material price fluctuations (in our case the price of copper). Upon request we will provide the customer with evidence of such fluctuations. Any discounts are subject to a separate agreement in writing. Unless otherwise agreed in the order confirmation, the purchase price is due for full payment net (without deductions) within twenty days after the invoicing date. The corporate customer will be charged an interest of eight percent above the legal base rate on the amount owed during the default period. We reserve the right to provide evidence to the corporate customer that the default damage was in fact higher and charge the damage determined. The customer shall only be entitled to take any amount into account if the counterclaim were legally determined or recognized and accepted by us. The customer may only exercise the right to retention if the counterclaim is based on the same contract. The minimum order amount is EUR 150.00 plus applicable tax; for orders amounting to less than the minimum amount, a small order surcharge of EUR 15.00 will be added to the invoice.
4. Transfer of all risks
In case the purchasing customer is a corporation, the risk of accidental loss and deterioration of the goods shall be transferred at the time of delivery, in case of mail orders at the time when the purchased goods are handed over to the shipping agent, freight handler or other person or organisation dealing with the dispatch and delivery to the customer, regardless of whether the customer is in default for the acceptance of the ordered goods. Unless otherwise specified in the order confirmation, delivery ex works is mutually agreed.
Packaging is charged additionally. We reserve the right to determine the type of packaging best suitable. Deliveries on Euro-pallets and grid or cage boxes are done on the basis of exchange. We use reusable drums and spools. These are invoiced separately and are part of the contractual object without a special order. If the reusable items are returned to us within six months after the delivery in impeccable and reusable state, the mount charged for the respective item shall be reimbursed. The return of reusable drums and/or spools from third parties is excluded. The return of packaging material is excluded in case the parties make use of the DSD (§11 VerpackVO, German Packaging Ordinance).
6. Delivery times
The beginning of the delivery time quoted by us is subject to the complete clarification of all technical issues, and our obligation to deliver is subject to the timely and proper meeting of all the requirements by the customer. The defence by reason of non-fulfilment of contract remains reserved. If the customer is found to be in order acceptance default or if the customer is at fault for any other lack of collaboration we shall be entitled to claim compensation for any damages resulting including any additional expenses incurred. Further claims shall not be included. The risk of accidental loss or deterioration of the contract goods shall be transferred to the customer at the time of delivery or when the customer has come into acceptance or other default. We are liable according to legal stipulations inasmuch the purchase contract is a fixed business transaction according to § 286 Abs. 2 Nr. 4 BGB (German Civil Code) or von § 376 HGB (German Trade Act). We are also liable according to the legal stipulations if in case of a default of delivery for which we are liable and at fault an interest in the continued performance of the contract has forfeited or lapsed. We shall also be liable according to the legal stipulations in case the delivery default is due to any intentional or gross negligent breach of contract; any fault attributed to our agents or representatives shall be attributed to us; unless we are not at fault for any intentional breach of contract our liability for damages shall be limited to any foreseeable typical damage incurred. Otherwise, we are liable in case of a delivery default for each completed week to the amount of a default compensation amounting to 0.5% of the value of the delivery per each completed week, but not exceeding 5% of the total delivery value. In case of partial deliveries the value of the partial delivery shall be regarded as the delivery value.
a) Corporate customers are required to report any obvious defects or faults within a period of no more than two weeks after the receipt of the goods in writing, otherwise any damages claims will be rejected. The notice of defects shall be deemed in time if it is sent within the period stated above. Corporate customers must provide all complete evidence for the defects and claims; they are also responsible for the time of the determination or identification of the defect and the notice of defect.
b) Product and service properties, characteristics and specifications are only guaranteed if these are explicitly listed in writing in the order confirmation.
c) If a corporate customer reports a fault or defect to the product our warranty shall be for repair or other remedial action, or, at our discretion, replacement of the product. If this action is not effective the customer may in principle reduce the price to be paid or cancel the contract entirely; the latter option shall not be available if the defect is only minor of the breach of contract is only minor. If after a legal or material defect and an unsuccessful remedial action the corporate customer opts for the cancellation of the contract, the customer shall not be entitled to claim any damages. If the corporate customer opts for claiming damages after unsuccessful remedial action in the case of a defect, the goods will remain with the customer, as far as this is reasonable. Damages shall be restricted and limited to the difference in the purchase price and the value of the defective goods. This shall not be applicable if we are found guilty of malicious or fraudulent breach of contract.
d) The warranty period for goods delivered to corporate customers shall be one year from the day of delivery, except if the customer has failed to submit the notice of defect in time (§ 377 HGB German Trade Act).
e) For corporate customers the properties of the goods are exclusively as described and specified in the product description by the manufacturer. Other public statements, advertising or promotions on the part of the manufacturer do not constitute a contractual or legally binding description of the respective goods.
f) We are liable, according to legal regulations, if the customer claims damages for faults or defects caused intentionally or through gross negligence on our part or on the part of our representatives and/or agents. Unless an intentional breach of contract on our part can be proven, the damage liability shall be limited to the foreseeable, typically expected damage incurred.
g) We are liable, according to legal regulations, if we are at fault for a major breach of contract; in this case, however, the damages liability is limited to the foreseeable, typically expected damage incurred. If the customer is entitled to damages instead of remedial action our liability, also after failed remedial action, shall be limited within the scope of warranty and liability laws to the compensation of the foreseeable, typically expected damage incurred.
8. Total liability
a) Any further liability for damage claims, exceeding those set forth in section 7, is, regardless of the legal nature of the claim made, excluded. This applies in particular to damage claims from faults at signing of the contract because of other defaults or because of illegal claims for compensation for material damages according to § 823 BGB (German Civil Code).
b) The restriction according to section 8a) shall also be applicable in case the customer claims compensation for useless expenses instead of claiming a compensation for the damage.
c) Versus corporate customer we are not liable for minor breaches of contract. The aforementioned liability limitations do not affect our product liability.
d) The previously liability restrictions shall not apply to customer claims due to product liability. The liability limitations shall also not apply physical or health damage or the loss of life on the part of the customer.
9. Property retention
a) In case of contracts with corporate customers, we reserve the right to exercise retention rights on goods delivered by us until the entire from one single contract is done and settled. The customer is required to take good care of the retained material. If during this time inspections and/or maintenance work become necessary, the customer will perform or commission this work to a third party at their own costs. The customer is obliged to bear the costs of said work.
b) The customer is also obliged to notify us without delay, if and when there are claims by other parties, such as seizure, confiscation, other damages and natural nature incidents and acts of force majeure, as well as other damages or destruction, by timely and immediate notice; furthermore, the residential address changes, or the sale of originally own products; as long as this is the case, the seizure, material damage or the destruction must be communicated without delay.
c) We are entitled, in the case the customer is in breach of contract, especially in default of payment or violation of any of the previously mentioned regulations regarding the customer obligations, to cancel the contract and demand the return of the goods.
d) The corporate customer is entitled to sell the goods in a normal and proper transaction. The seller assigns all claims amounting to the amount of the invoice incurred by the reselling to a third party to us. We herewith accept the assignment. After the assignment the customer/seller is entitled to recover the claimed amount. We reserve the right to recover the amount ourselves if the corporate customer does not fully satisfy the payment obligations or goes into payment default.
e) Working on and processing the goods by the corporate customer is always on our behalf and order. If during processing parts or components not in our property are involved, through this we will gain co-ownership at a share corresponding to the value share of the goods supplied by us in the new goods. The same shall apply if goods supplied by us are installed in conjunction with other goods not supplied by us. This co-ownership does not include the assumption of any obligations by us.
f) The customer will also assign the claims as a security for our claims against the customer, which are incurred in conjunction with the transaction of a purchase of real estate against a third party. We herewith accept this assignment.
g) We agree to release the securities we are entitled to on request by the customer to the extent that the realizable value of the securities exceeds the value of the claims secured by these securities by 10 percent; the selection of the securities to be released is at our discretion.
10. Intellectual property rights
The supplier reserves all and any intellectual property rights including the copyright on all tenders, offers, estimates, drawings and all other documents. This may only be made accessible to others subject to the approval by the supplier. General copyright in intellectual property right legislation remains applicable.
11. Legal court of justice
a) In case the customer is a business, a legal entity of public law or public legal special asset entity, the court of jurisdiction for all disputes arising from this contract shall be our corporate headquarters; we are, however, also enabled to file suit against the customer at the court of jurisdiction or the customer's registered address. The same shall apply if the customer has no court of jurisdiction in Germany or if the residence or normal address is not known at the time the suit is filed.
b) Applicable law are the laws of Germany. The Vienna UN Convention for the International Sale of Goods shall not be valid and is explicitly excluded.
c) Unless otherwise agreed in the order confirmation, the place of completion is our headquarters.
12. Severability clause
In case individual passage of this agreement are or become ineffective this shall have no effect on the validity of other passages in this agreement. Invalid passages shall be replaced by such valid passages reflecting the intended sense and meaning of the agreement.
Subject to amendments and modifications – version: July 2009