General Terms and Conditions

§ 1 General

Our deliveries, services and offers are made exclusively on the basis of these terms and conditions, provided that the buyer is a merchant, a legal entity under public law or a special fund under public law. Counter-confirmations of the buyer with reference to his terms and conditions of business or purchase are hereby rejected.

§ 2 Offers, prices, delivery periods

1. The offers are subject to change.
2. The information, drawings, illustrations and performance descriptions contained in brochures, catalogs, price lists or the documents belonging to the offer are approximate values customary in the industry. They do not constitute a quality or durability agreement unless they have been expressly agreed as binding in the contract.
3. Unless otherwise agreed, the guidelines in worksheet H 10 “Gratings in industrial construction”, which can be made available to the buyer on request, shall apply to invoicing.
4. Should the delivery be delayed by more than four months from the conclusion of the contract and should the costs for wages, material, packaging material, freight, taxes or duties have increased in the meantime, the agreed price may be adjusted in accordance with the influence of the aforementioned cost factors.
5. If, for reasons for which the Seller is not responsible, the Seller does not receive deliveries or services from its sub-suppliers or subcontractors, or does not receive them properly or on time, or if force majeure events occur, the Seller shall inform the Buyer in good time. In this case, the seller is entitled to postpone the delivery or services for the duration of the hindrance or to withdraw from the contract in whole or in part due to the part not yet fulfilled, provided that he has fulfilled his above obligation to provide information and has not assumed the procurement risk or manufacturing risk. Force majeure includes strikes, lockouts, official interventions, energy and raw material shortages, transport bottlenecks through no fault of the Seller, operational hindrances through no fault of the Seller, e.g. due to fire, water and machine damage, and all other hindrances which, from an objective point of view, were not culpably caused by the Seller.
6. If a delivery or performance date or a delivery or performance period has been bindingly agreed or if the agreed delivery or performance date or the agreed delivery or performance period is exceeded by more than four weeks due to events in accordance with the above paragraph no. 5 or if it is objectively unreasonable for the Buyer to adhere to the contract in the case of a non-binding performance date, the Buyer shall be entitled to withdraw from the contract due to the part not yet fulfilled. Further rights of the buyer, in particular claims for damages, do not exist in this case.
7. If a specific delivery date or a specific delivery period has been agreed, the due date of the delivery claim or the start of the delivery period shall be subject to the technical clarification of the respective order; the technical clarification shall be understood as the return of the approved outline/installation plans including parts lists to the Seller, whereby the receipt of these documents by the Seller shall be taken as the basis; the Seller shall notify the Buyer of the receipt of the documents without delay. The delivery deadline shall be deemed to have been met if the goods have left the factory/warehouse of the Seller or one of its vicarious agents at the agreed time or if the Buyer has been notified that the goods are ready for shipment if shipment is not possible.
8. The seller does not guarantee the quality of samples and specimens merely by handing them over.
9. Packaging costs shall be borne by the buyer.
10. The Seller reserves the right of ownership to cost estimates, drawings, detailed technical elaborations and similar documents. Such documents may not be made accessible to outside third parties by the Buyer. If the order is not placed, they must be returned to the Seller immediately upon request, including any copies made in the meantime.

§ 3 Delivery and default

1. Delivery free place of destination or free construction site means delivery without unloading. Unloading must be carried out immediately and properly by the buyer.
2. Transport insurance shall only be taken out at the written request and expense of the buyer.
3. Partial deliveries are permissible insofar as they are reasonable for the buyer.
4. If the Seller is unable to take out commercial credit insurance for the Buyer or if such insurance is terminated, the Seller shall only be obliged to provide services if the Buyer provides security equivalent to the consideration. The Seller shall inform the Buyer of this without delay. In this case, the Seller shall be entitled to postpone delivery or services until the Buyer has provided corresponding security.
5. A contractual penalty provision shall only be recognized if it has been individually negotiated with the seller. It requires the written consent of the seller.
6. If the seller is in default, his liability for damages in the event of simple negligence is limited to 5 percent of the purchase price. Further claims of the buyer remain unaffected.

§ 4 Payment

1. In the case of cash sales, the purchase price is due for payment immediately upon receipt of the goods without deduction.
2. The target sale requires a separate written agreement, whereby the written form requirement serves as evidence.
3. If the goods are ready for shipment and shipment or acceptance is delayed for reasons for which the seller is not responsible, the purchase price shall be due upon receipt by the buyer of the notification of readiness for shipment and the seller shall be entitled to issue the invoice.
4. In the case of a cash discount agreement, the cash discount deduction is only permitted if the buyer does not otherwise have any invoices due for payment to the seller that are more than 30 days overdue. Only the value of the goods excluding freight, unloading or assembly costs is eligible for discount. Services are not discountable. If partial deliveries or partial payments have been agreed, the entitlement to discount shall also lapse with regard to the partial deliveries if the last partial delivery is not paid within the agreed discount period.
5. If the Buyer is not likely to be able to meet the existing payment obligations at the time they fall due, if it threatens to become insolvent or if it is not possible to cover a default by taking out commercial credit insurance or if a credit commitment granted is revoked, the Seller shall be entitled to perform further deliveries and services only after prior performance of the consideration or after provision of security for the consideration. The seller shall set the buyer a reasonable deadline for this. If the buyer does not comply with the seller’s justified request within this period, the seller may withdraw from the contract and demand compensation. If the conditions of sentence 1 are met, the seller is also entitled to demand immediate payment of all outstanding invoice amounts (including deferred amounts) and to demand the return of bills of exchange accepted on account of payment or the provision of security.
6. Furthermore, the Seller shall be entitled to withhold deliveries to the Buyer until all claims due from the Buyer have been settled.
7. The buyer must check invoices and balance notifications for accuracy and completeness. The seller’s invoices shall be deemed to have been accepted unless objected to in writing within 30 days of the invoice date. This also applies to the balance notification.
8. The buyer has no right of retention.
9. The Buyer may only assert a right of set-off against the Seller’s claims if the claim asserted for set-off is undisputed or has been legally established.

§ 5 Transfer of risk, warranty and liability

1. The risk shall pass to the Buyer as soon as the goods have been handed over to the carrier or forwarding agent or have left the Seller’s works for the purpose of shipment. If the goods are ready for shipment or if the shipment is delayed or if the shipment or acceptance is not carried out for reasons for which the Buyer is responsible, the risk shall pass to the Buyer upon receipt of the readiness for shipment by the Buyer.
2. If the goods are ready for shipment and shipment or acceptance is delayed for reasons for which the seller is not responsible, the risk shall pass to the buyer upon receipt of the notification of readiness for shipment. From this day onwards, the Buyer shall also bear the storage costs and other expenses incurred for each month or part thereof from notification of readiness for dispatch, unless the Buyer can prove that the actual costs and expenses were lower.
3. The buyer must observe the obligations of § 377 HGB. In addition, the transport company must be notified of any defects recognizable upon delivery and the recording of the defects must be arranged by the transport company. Notices of defects must contain a description of the defect in as much detail as possible. Failure to give notice of defects in due time shall exclude any claim by the buyer.
4. Upon commencement of processing, treatment, combination or mixing with other items, the delivered goods shall be deemed to have been approved by the customer in accordance with the contract. The same shall apply in the event of onward shipment from the original destination.
5. The Seller’s liability for breaches of duty due to material defects is excluded unless defects and associated damage are demonstrably due to defective material, defective construction or defective execution or defective assembly instructions. In particular, the warranty and liability is excluded for the consequences of incorrect use (in particular in the case of assembly that does not correspond to the state of the art or assembly contrary to the assembly instructions) or natural wear and tear of the goods, excessive use or unsuitable operating materials as well as the consequences of physical, chemical or electrical influences that do not correspond to the intended, average standard influences.
6. Any recourse claims of the buyer in the event of resale of the goods shall only exist against the seller to the extent that the buyer has not made any agreements with his customer that go beyond the statutory claims for defects.
7. The limitation period for claims for defects is 12 months. This does not apply to building contracts, to items that have been used for a building in accordance with their normal use and have caused its defectiveness, to claims for injury to life, limb and health and in the case of gross negligence on the part of the seller.
8. The above provisions of § 5 No. 7 do not apply to the sale of used items; these are delivered to the exclusion of any claims for defects. The aforementioned limitation of the limitation period for used items shall not apply to claims for injury to life, body and health or in the event of gross negligence on the part of the seller.
9. Insofar as the item to be delivered is only determined according to generic characteristics, the seller shall only be liable for compensation for damage if he cannot prove that he is not responsible for the non-performance, delay in delivery or defectiveness of the item.
10. Furthermore, the seller’s liability for damages is as follows:
    1. Claims of the buyer against the seller and his vicarious agents for damages are excluded; this does not apply to damages resulting from injury to life, limb or health. Furthermore, the exclusion of liability shall not apply if the damage is based on a grossly negligent breach of duty by the seller or one of its legal representatives or vicarious agents.
    2. Finally, the exclusion of liability does not apply in the event that damages are attributable to a breach of material obligations by the seller. In this case, however, the seller is only liable for damages up to the amount that was foreseeable as a possible consequence of the breach of duty when the contract was concluded or negotiated or was foreseeable taking into account the circumstances that the seller knew or should have known.
    3. Material obligations are those obligations that protect the legal positions of the buyer that are material to the contract and which the contract must grant him according to its content and purpose. Material contractual obligations are also those whose fulfillment is essential for the proper execution of the contract and on whose compliance the buyer has regularly relied and may rely.
    4. The mandatory liability according to the provisions of the Product Liability Act also remains unaffected.
    5. A reversal of the burden of proof is not associated with the above provisions of § 5 No. 10.
11. Under no circumstances does the seller recognize the exclusion of § 341 sentence 3 BGB.

§ 6 Retention of title

1. The seller retains title to the delivered goods until all claims arising from the delivery contract have been paid in full. This shall also apply to all future deliveries, even if the seller does not always expressly refer to this.
2. The buyer is obliged to treat the purchased item with care as long as ownership has not yet been transferred to him. As long as ownership has not yet been transferred, the buyer must inform the seller immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse the Seller for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the Buyer shall be liable for the loss incurred by the Seller.
3. The buyer is entitled to resell the reserved goods in the normal course of business. The buyer hereby assigns to the seller the claims of the customer arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with the seller (including VAT). This assignment shall apply irrespective of whether the purchased item has been resold without or after processing. The buyer remains authorized to collect the claim even after the assignment. The seller’s right to collect the claim himself remains unaffected. However, the seller shall not collect the claim as long as the buyer fulfills his payment obligations from the collected proceeds, is not in default of payment and, in particular, has not filed an application for the opening of insolvency proceedings or has not suspended payments.
4. The treatment and processing or transformation of the purchased item by the buyer is always carried out in the name of and on behalf of the seller. In this case, the buyer’s expectant right to the object of sale shall continue in the transformed object. If the purchased item is processed with other items not belonging to the seller, the seller shall acquire co-ownership of the new item in the ratio of the objective value of the purchased item to the other processed items at the time of processing. The same applies in the event of mixing. If the mixing takes place in such a way that the Buyer’s item is to be regarded as the main item, it is agreed that the Buyer shall transfer co-ownership to the Seller on a pro rata basis and shall keep the sole ownership or co-ownership thus created for the Seller. In order to secure the Seller’s claims against the Buyer, the Buyer also assigns to the Seller such claims against a third party that accrue to it through the combination of the reserved goods with a property; the Seller hereby accepts this assignment.
5. The seller undertakes to release the securities to which he is entitled at the buyer’s request if their value exceeds the claims to be secured by more than 10%.

§ 7 Choice of law, place of performance, place of jurisdiction

1. German law shall apply exclusively to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
2. The place of performance for all obligations arising from the contractual relationship is the seller’s head office.
3. The place of jurisdiction for all claims of the contracting parties (also for actions on bills of exchange and checks) is the court responsible for the registered office of the seller.

Stadtlohn, January 2015