General terms and conditions on sales and deliveries
1 Subject of the Terms and Conditions
Our supplies, services and offers are exclusively based and executed on these General Terms and Conditions. These will, therefore, also apply to all future business relationships, even if they were not expressly agreed upon, once again. These Terms and Conditions will be deemed to be accepted, at the latest, at the moment of receiving the goods or services. Herewith, objection is raised against any counter-confirmation of the Buyer and against any reference to his own general terms on conditions or purchase terms and conditions. Any amendment to these our General Terms and Conditions will only become effective if we have given our written confirmation to such amendment.
2 Offer, Conclusion of Contract and Prices
Our offers are submitted without engagement, unless otherwise expressly indicated or agreed upon. All statements of acceptance and all orders are subject to our written or telecopied confirmation, to become legally effective. Same applies for all supplements, amendments or collateral agreements.
Any drawings, figures, measures, weights or other performance data are only binding, if expressly agreed upon in written form. Our sales people are not authorized to enter oral collateral agreements or to give oral pro mises which would exceed the subject of the written contact.
Decisive are the €-prices, VAT excluded, as quoted in our order confirmation. The prices are to be understood ex our Bremen warehouse, unless stated otherwise.
3 Term of Delivery and Performance
Any terms of delivery and performance, which can be agreed upon as binding or without engagement, have to be stipulated in written form.
We shall neither be responsible for any delays of delivery and performance because of Force Majeure or of events becoming a great handicap for the delivery, or making it altogether impossible, - such events being, in particular, strike, lockout, governmental instruction, etc., nor if such events occured with our own suppliers, even if the respective terms had been agreed upon in a binding manner. Such events will entitle us either to extend the respective term of delivery or performance for the duration of the impediment, including an appropriate gearing-up period, or to rescind the contract, in total or partially, as to the part not yet implemented.
If such impediment exists for more than three (3) months, the buyer will, after having granted an appropriate respite, be intitled to rescind the contract as concerns the part not implemented. In case of any extension of th e term of delivery or, if we were released from our obligation, the buyer will not be entitled to construe any damage claim from such circumstance. We shall only be intitled to invoke such circumstances if we have, respectively, notified the buyer without delay. As far as we were found in default, the buyer will be entitled to claim default damages to the extent of ½ percent for each full week of default, in total, however, to not more than 5 % of the invoice value concerning any deliveries or performances affected by such default. Any further default claims shall be excluded, unless such default had its cause, at least, in gross negligence from our part. We shall anytime be entitled to carry out partial deliveries or performances.
4 Shipment and Packaging
Shipment will be done ex our Bremen warehouse or ex manufacturing works or shipping department. Shipment and transport of the goods will be carried out on orderer’s account and risk, whereas any exceptional agreement concerning freight paid delivery will not concern but ordinary freight units. Shipment and transport will be effectuated, in our discretion, in the most economic manner, by mail, parcel delivery service, railway or forwarding agent, unless any other explicit agreement were entered. We shall not cover any insurance concluded against the risks of break and loss in transit, unless that was specially agreed upon; the respective insurance cost will be to the charge of the buyer.
5 Transition of Risk
Any risk will pass over to the buyer, a soon the shipped goods have been entrusted to the person in charge of the transport, or have left our premises for the purpose of being shipped. If shipment became impossible without our fault, the risk will pass on to the buyer at the moment of us giving notice on the readiness of the goods to be shipped.
6 Guarantee
We guarantee that the goods of our delivery are free from defects in workmanship or material. The guarantee period is six (6) months and starts with the date of delivery. Should any recognized technical procedures not be followed, products in any way be modified or altered or any parts be exchanged or any auxiliary materials, in particular, any welding fillers, be used which are not in conformity with the original specifications or the latest state of the art, any guarantee given will loose its validity, unless the buyer has validly rebutted the substantiated claim that only one of the above mentioned circumstances had led to the failure.
The buyer is obliged to notify the defect without delay, at the latest, however, within one week from receiving the goods of our delivery. Any defects which cannot be detected within such delay, even not in the process of careful checking, have to be notified to us, in written form, immediately upon their detection. In case of the buyer notifying us that the goods delivered are not found in conformity with the guarantee, the customer will be obliged, in our discretion, to return the defective part to us for repair and following re-delivery, or to hold the defective part ready for being repaired by one of our service specialists. Instead of repairing the part, we can also opt for a replacement delivery, in which case any defective part exchanged will again become our property.
If the buyer demands that any work to be done on guarantee be carried out at a site of his choice, we can satisfy such demand subject to the following terms: The parts affected by the guarantee will not be invoiced, whereas working time and travelling cost will have to be paid at our standard rates. Should the repair, however, fail, after an appropriate delay was granted, the buyer will be entitled either to claim a reduction of the amount to be reimbursed or cancellation of the contract. Any liability for normal wear and tear is excluded.
Any guarantee claims against us are only incumbent upon the immediate buyer and are not assignable. The paragraphs stipulated above conclusively contain the guarantee for products, excluding any other guarantee cl aims. This does, however, not apply to any claim for the compensation of damage from warranties given with respect to special characteristics, which were to protect the buyer against the risk of subsequential damages from defects.
7 Restriction of Liability
There are excluded any damage claims arising from any positive infringement of claims, from any fault or negligence in the execution of the contract, from nonfulfillment or from any illegal act, both against us and our assisting officers, as far as there is no case of intentional misbehaviour or gross negligence. Equally excluded is any compensation for mediate or subsequential damage from defects, unless liability is claimed on the grounds of an assurance given for protecting the buyer against the risk of damages. Any liability is restricted to damage which could be reckoned with at the moment of executing the contract.
8 Retention of Title (Property Reserve)
For the period until all demands (including all demands on any balances shown on open accounts) which we might by any legal title have against the buyer are fully implemented, we shall be in possession of the following securities which we shall release, on demand, as far as their value does not persistently exceed the value of the subject claims by more than 20 %.
The goods will remain our property. Any processing or working of such goods will always be done for us, as the manufacturer, however, without any liability for us. For the event that our property title would expire because of unification, there is already now made the agreement that the retention of title of the buyer to the unified matter will pro rata (based on the invoice values) be passed upon us. The buyer will gratuitously safeguard our title of retention. Any goods which we have a retention of title in will, in the following, be mentioned as "goods under property reserve".
The buyer is entitled to work, process and alienate any "good’s" under property reserve", in the orderly run of his operations, as long as he is not found in default. Any bonds or trust receipts are inadmissible. As far as any claims on "goods under property reserve" are concerned, the buyer is already now assigning us all and any claims (including all claims from open accounts) arising from any resale or other title (insurance, illegal act), to their full extent, as a security, We authorize the buyer, until further notice, to collect the claims assigned to us, on his own behalf, for our account. The authorisation of collection can only be revoked if the buyer were found in default of payment.
In case of any reach of third parties on "goods under property reserve", the buyer will refer to our property title and notify us immediately. In case of any behaviour of the buyer in contrary to the contract – in particular, any default of payment – we shall be intitled to withdraw the "goods under property reserve" or to call for the assignment of the restitution claims of the buyer against thirds, as the case may be. Neither the restitution nor any pledging of the "goods under property reserve" by us will constitute a cancellation of the contract, as far as there does not apply the law on payment by instalments.
9 Payment
As far as not otherwise agreed upon, our invoices will be payable in 14 days from data of invoice, without any discount. We are entitled, notwithstanding any terms of the buyer to the contrary, to offset payments, first against his oldest debt. and shall notify the buyer on such offset effectuated. Should there already have accrued any costs and interest, we shall be entitled to offset the payment, first against costs and then against interest and, finally, against the principal payment service. Any payment will only be considered as fulfilled, if we can dispose of the respective amount. In case of payment by means of cheque, payment will be deemed as made only, when the cheque has been collected.
If the buyer is defaulting, we shall be entitled to charge interest, as from the respective date, at the rate of interest charged by business banks on open current accounts, as well as the respective VAT. Such default interest would have to be charged at a lower rate if the buyer can deliver proof on lower interest charges.
If we were to get knowledge of facts casting any doubt on the credit-worthiness of the buyer, in particular, if the buyer did not redeem any cheque, or had suspended his payments, we shall be entitled to demand prepayment or a sufficient security.
The buyer will not be entitled to offset, retain or reduce any amounts to be paid, even if any claims on faulty material or services or any counter-claims had been raised, but on the condition that the validity of such counter-claims had been legally established or their validity were proven beyond any doubt.
10 Applicable Law, Jurisdiction, Partial Invalidity
The General Terms and Conditions and all legal relationships between the seller and the buyer will be subject to German Law.
As far as the buyer is a corporate body by public law, or a public special estate, in conformity with the commercial Law Code, Bremen will be the exclusive forum for all kinds of mediate dispute arising from the execution of the present contract.
Should any clause or term contained in these General Terms and Conditions, or any stipulation within the frame of other agreements entered with the customer, be or become unvalid, the force and validity of all or any other clauses and terms contained in these General Terms and Conditions or in any other agreements shall not be affected.
EUCARO BUNTMETALL
Vertriebs-GmbH
March 1993