General conditions of delivery and payment of the metal goods and SV industry for industrial businesses in the inland
Scope of application
1. 1. These general conditions of delivery and payment apply as soon as the contractual partners agreed upon these in writing or another manner. Business conditions of partners that are not accepted by us are not valid.
2. The contractual partners will confirm oral agreements directly in writing.
3. Orders will not be binding with until our confirmation of the order.
4. All information and drawings set out in brochures and catalogues are approximated values customary within the industry unless we constitute them explicitly as binding.
Long term and order on call contracts, price alignment
5. Permanent contracts can be terminated with a cancelation period of 6 months.
6. If in the case of long-term contracts (contracts with a term longer than 6 months and permanent contracts) substantial amendments regarding wage, material, or energy costs occur both contract partners are able to request negotiations about a reasonable adjustments of prices under with due regard to these factors.
7. In the case that no binding order quantity is declared, we base our calculations on an order quantity that is expected from the partner for a certain period and that is unbinding (goal quantity). If the partner buys less than the goal quantity we are authorizes us to raise the price per item appropriately.
8. Unless otherwise specified, binding quantities for supply contracts on call have to be given at least 2 months before the delivery date on call. Incremental costs that are caused by our partner and induced by a belated order call or subsequent corrections o the order call regarding time or quantity will be billed to the partner's expense. In this case our calculations are binding.
9. Every contract partner will use all documents (this includes samples, models, and data) and knowledge that come from the business connection only for shared purposes and keep them secret from third parties with the same care they would take for own relevant documents and knowledge. This applies for the case that the other contract partner refers to these documents and knowledge as confidential or shows open interest in a corresponding secrecy. This obligation starts upon the first receipt of the documents or knowledge and ends 36 months after the business connection has expired.
10. The obligation applies not for documents and knowledge that are commonly known or were already known to the contract partner upon receipt without an associated obligation to secrecy or that were afterwards passed on by an authorized third party or that are developed by the receiving contract partner without use of secret documents or knowledge of the other contract partners.
Drawings and descriptions
11. If a contract partner transfers drawings or technical documents about to be supplied articles or their production to the other contract partner, those drawings or technical documents remain property of the submitting contract partner.
Samples and manufacturing equipment
12. Except when otherwise stipulated, the production costs for samples and manufacturing equipment (tools, moulds, stencils, etc.) are charged separately from the to be supplied goods. The same applies to manufacturing equipment that has to be replaced because of attrition.
13. The costs for maintenance and proper storage and also the risk of damage or destruction of the manufacturing tools will be paid by us.
14. Should the partner suspend or terminate the collaboration during the manufacturing time of samples or manufacturing equipment, all previously incurred manufacturing costs will be charged at his expense.
15. The manufacturing equipment will remain in our possession at least until the clearing of the supply contract, even though the partner paid for them. Thereafter the partner is authorised to demand the manufacturing equipment, if a mutual agreement about the time of surrender was made before and the partner met his contractual obligations to the full extent.
16. We store the manufacturing equipment free of charge for a period of three years after the last delivery to our partner. Hereafter we ask our partner by letter to give information about the future use of the equipment within 6 weeks. Our obligation of storage ends within these 6 weeks, if no answer is given or no new order is placed. Then the manufacturing equipment passes in our ownership.
17. Customer specific manufacturing equipment can only be used for the supply to third parties with the prior consent by our partner.
18. Our prices are given in EURO, excl. VAT, packaging, cargo, postage, and insurance.
Terms of payment
19. All bills have to be paid within 30 days from date of invoice. Upon payment within 14 days after billing date 2% discount will be given as long as the partner has no outstanding debts.
20. If we indisputably delivered faulty goods, our partner remains obliged to pay for the faultless goods unless the partner is not interested in the partial delivery. For the rest the partner can only add counterclaims that are undisputed or determined without further legal recourse.
21. If the terms of payment are not met, we are authorised to charge default interest amounting to the interest rate that the bank charges to our account as loan on overdraft, at least equivalent to 8% above the particular base interest rate of the European Central Bank.
22. In case of default we are authorised to stop with the performance of our obligation following a written announcement and until receipt of payment.
23. Drafts and cheques will only be accepted upon previous agreement and only for processing and on condition that they are discountable. Discount charges will be charged starting at the due day. A warranty for a timely submission of the draft or cheque and for the charge of a bill protest is precluded.
24. If after the signing of the contract a considerable danger of our payment claim because of a substantial decline in the pecuniary circumstances of our partners occurs, we are authorised to claim a prepayment or a security within a appropriate period and to refuse the any performance until our claims are fulfilled. If the partner denies this or the deadline remains without effect, we are authorised to withdraw from the contract or to demand indemnity because of breach of contract.
25. Unless otherwise declared we supply "ex factory". Determinative of the compliance of the delivery date or the delivery deadline is our status signal of readiness for dispatch or collection.
26. The delivery deadline starts with the dispatch of our confirmation of the order and will be prolonged in case that the requirements of no. 54 are fulfilled.
27. Partial deliveries are acceptable to a reasonable extent. They will be charged separately.
28. Within a margin of 15 % of the total order excess or short deliveries due to the manufacturing are acceptable. The total price is changed corresponding to extent of the excess or short deliveries.
Shipping and passing of risk
29. Goods that are declared as ready for dispatch has to be taken immediately by the partner. Otherwise we are authorised to dispatch the goods at our own option or to store them at the expense and risk of the partner.
30. For lack of specific agreements we choose the transportation and transport route.
31. After handing over the goods to the German Railways, the shipping company, or the carrier, respectively with start of the storage, but at the latest when the goods leave the factory or store, the risk lies at the partner even when we incur the delivery.
32. If it is foreseeable that the goods cannot be delivered within the delivery deadline, we will inform the partner about this fact immediately in written form. We will give reasons for the delay and try to make an estimate for a new delivery date.
33. If the delay in delivery is caused by one of the cases described in no. 54 or by action or default of the partner, an adequate extension of the delivery deadline will be allowed.
Reservation of proprietary rights
34. We preserve the proprietary rights for the delivered goods until fulfilment of all claims originating from the business connection.
35. The partner is authorised to sell these goods the normal course of business as long as the partner fulfils the obligations arising from our business connection on time. The partner is not allowed to pawn the goods or to pledge them as security. The partner is obligated to secure our rights in case of credited resale of the goods subject to retention of title.
36. In case of violation of duty by the partner, especially in cases of default, and after unsuccessful expiration of the reasonable payment deadline set for the partner, we shall be entitled to withdrawal and redemption. The statutory regulations about dispensability of a release remain unaffected. The partner is obliged surrender.
37. We are allowed to withdrawal from the contract, if an application to initiation of insolvency proceedings has been filed with regard to the assets of the partner.
38. The partner assigns all claims and rights of a sale or an eventually allowed renting of goods that fall under our proprietary rights to us. With this we accept the conveyance.
39. The partner will take in hands an eventual editing or processing of the goods subject to retention of title. If the goods subject to retention of title are processed or permanently combined or blended with subjects that do not belong to our property, we get joint ownership for the new subjects according to the ratio of the invoice value of the goods subject to retention of title to the other processed or combined or blended subjects at the time of processing or combination. If our goods will be combined with movable subjects to an uniform subject or if they are permanently connected and if the other subject is the main part of this combination, our partner will transfer proportional joint property to us provided that the partner owns main part. The partner will store the property or joint property for us. For subjects that were created by processing or combination or blending the same rules apply as for goods subject for retention of title.
40. In case of compulsory enforcement measures by third parties regarding goods subject for retention of title or other securities. The partner is obliged to inform us directly including handover of all documents necessary for an intervention. That also applies derogations of other types.
41. We are prepared to release the securities that with regard to the above mentioned terms are due to us on request of the partner insofar as the value of goods that were delivered under reservation of proprietary rights exceeds debts that have to be covered by security by more than 20%.
42. We guarantee a faultless manufacturing of the goods we supply in accordance with the technical delivery terms we agreed upon. In case that we have to supply according to drawings, specifications, samples ASO presented by our partner, the latter one will take over the risk of acceptability of the designated application. No. 31 is crucial for the condition of the goods as specified by contract at the time of the passing of risk corresponding to.
42a. In each case of delivery the partner will take into account the regulations of the European Union and the Federal Republic of Germany, e.g. the REACH (directive EG Nr. 1907/2006), the law about redemption and environmentally friendly disposal of electric appliances and electronic devices (ElektroG) as national transformation of the directive 2008/95EG (RoHS) and the directive 2002/96EG (WEEE) and the law about scrap cars as national transformation of the EU directive 2000/52/EG.
We will inform the partner about relevant changes at the goods, the ability to supply these goods, possibilities of application, or quality, especially those due to REACH. We will come to an agreement about suitable actions individually.
43. We will not safeguard defects that were caused by inapplicable and improper use, faulty assembly or commissioning by the partner or third parties, fair wear and tear, faulty or careless handling. The same applies to the results of improper unauthorised changes or repair work by the partner or third parties.
44. Unless otherwise specified, the warranty deadline orientates to the law.
45. Open defects have to be contested in written form by the partner immediately after receipt of the goods at the destination, latent defects immediately after detection of the defect or within 6 months after passing of risk.
46. In case that an acceptance of the goods or an initial sample testing was stipulated, a notification of defects is ruled out, if these defects could have detected at a careful acceptance or initial sample testing.
47. We have to be allowed to detect the notified defect ourselves. Rejected goods will be send back to us immediately upon request. We pay the shipping costs, if the defect notification is justified. If our partner does not meet the obligations or applies changes to the rejected goods, possible warranty claims will no longer apply.
48. If the complaint is legitimate and on time, we will choose to either repair or replace the rejected goods. In case of bulk orders, the partner will grant us time to sort the faulty goods out.
49. If we do not fulfil our warranty duties or if we do not fulfil it following to the contract within a specific time, the partner is authorised to set up a deadline in written form within that we have to meet the obligations. After unsuccessful expiration of the deadline the partner can demand a rebate, denounce the contract, or repair self or let it be repaired by a third party at our expense and risk. If the partner or a third party do the repair successfully, all claims of the partner are satisfied by refund of the costs that resulted in the repair.
Other claims, liability
50. Unless otherwise specified, other and further claims against us by the partner are ruled out. This applies especially for compensations claims due to delay, impossibility of performance, culpable violation of contractual secondary obligations, culpability at contract signing, and illegal actions. That is why we are not liable for defects that resulted not at the supplied goods. Particularly, we are not liable for loss of profit or other financial losses of the partner.
51. The limitations of liability mentioned above do not apply in case of malice, wanton negligence by our legal representation or executive staff members, and culpable violation of fundamental contractual obligations. In case of culpable violations of fundamental contractual obligations we are liable except in cases of malice or wanton negligence by our legal representation or executive staff members only for damage that is typical for the contract and reasonably foreseeable.
52. Further, the limitations of liability do not apply in cases in which with regard to the product liability law we are liable for defects a the delivered goods for damage to persons or property that used privately. Additional the limitations of liability do not apply in case that guaranteed features, if this guarantee was meant to secure he partner against damages that were not caused at the goods themselves.
53. As long as our liability is ruled out or limited, this also applies for our employees, works, co-workers, legal representation, and agents.
54. The legal regulations regarding burden of proof remain unaffected.
55. Force majeure, labour conflicts, riots, regulatory actions, nonappearance of supply by our suppliers, and other unforeseeable, inevitable, and serious events extricate the contract partner from the performance duties as long as the disturbance lasts and in the scope of its impact. This also applies when theses events occur at a time, when the affected partner defaults. Within the realms of possibility, the contract partners are bound to give the relevant information immediately and to adjust their obligations to the changed circumstances in bona fide.
Place of fulfilment, place of jurisdiction, and applicable law
56. Unless otherwise specified in the order confirmation, our place of business also is the place of fulfilment.
57. Regarding all legal disputes, our place of business is the place of jurisdiction. This does also apply for draft and cheque processes. We are also authorised to suit at the place of business of the partner.
58. With regard to the contractual relation only the German legislation can be administered. The administration of the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated from April 11th 1980 is excluded.
By Beckfort & Co.