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Conditions générales d'affaires

§ 1 Scope of Application

 

(1) All deliveries and services effected by us in respect of the customer are executed exclusively in accordance with the following conditions. These apply for all current and future business relationships between the contract parties, even when not repeatedly explicitly stipulated.

 

(2) Digressive, conflicting or supplementary General Terms and Conditions from the customer will not be accepted as an integral part of the contract, even if we are aware of their existence, unless we specifically agree their validity in writing.       

 

§ 2 Conclusion of the Contract, Offer Documents

 

(1) Our offers are not binding.

 

(2) Through placing an order for merchandise, the customer makes a binding declaration of his intention to purchase the merchandise. We are entitled to accept the contract offer contained in the order within four weeks following the date of the order.

 

(3) For the acceptance, coverage and execution of the order, solely the agreements received in writing/by Fax are applicable. Verbal arrangements or supplements to an agreement must be confirmed by the parties in writing in order to obtain validity. Our employees are not authorised to agree to alterations in delivery and payment conditions.

 

(4) For the raw materials and the specifications of the ordered goods, the customary deviations or DIN tolerances for dimensions, form and weight are permissible. We produce in accordance with the following DIN regulations: 6930, 24041, 24043 and 791. For planarity tolerances it will be assumed that the sheets will be machine-rolled in compliance with the latest technology.

 

(5) Unless specifically agreed, we are not obliged to guarantee special surface properties for the basic material, particularly regarding their being lubricant-free.

 

(6) Overdeliveries of up to 10% and underdeliveries of up to 5% are permissible.

 

(7) The regulations shown in § 312 e Abs. 1 Satz 1 No.1-3 and Satz 2 BGB (German Code of Civil Law) do not apply.

 

(8) For illustrations, drawings, calculations and other documentation we reserve the right to proprietary right of ownership and copyright entitlements. Availability to third parties is not permitted. This applies particularly in the case of written documentation designated as being „confidential“; a forwarding of such is only permissible with our written approval.

 

 

 

§ 3 Liability, Delivery Times

 

(1) The conclusion of the contract is effected under the proviso that we receive correct, complete and punctual delivery of material from our suppliers. This applies only in the event of our being not responsible for non-delivery or incorrect or delayed delivery and for which we have negotiated a congruent cover transaction with the supplier.

 

The customer will be promptly informed of non-available services. Payments already effected by the customer will be promptly reimbursed.

 

(2) Delivery dates or deadlines, which can be stipulated as binding or non-binding, must be agreed in writing. Delivery dates are only deemed as binding when we have specifically confirmed in writing that they are binding.

 

The delivery time begins with the date of order confirmation.

 

The delivery time is deemed to have been observed when the goods leave the factory prior to the end of the delivery time. The observance of the delivery time is dependent on the punctual provision of all required documents from the customer and all necessary authorisations as well as the fulfilment of agreed obligations.

 

(3) In the event of our or our suppliers suffering hindrance imposed by force majeure, we shall be exonerated from the obligation to supply for the duration of the hindrance. Agreed delivery times shall be extended – this also applies to delayed deliveries – to an appropriate degree. Force majeure is particularly valid for war, strikes and lock-outs at preliminary suppliers or – provided that strike and/or lock-out is lawful – at our premises, civil commotions, terrorist attacks and natural disasters.

 

(4) In the case of unlawful industrial action (particularly strike and lock-out) within our company, we shall be exonerated from liability provided we can be accused merely of slight negligence.

 

(5) Should the hindrance included in the terms of Paragraph 3 of this regulation be of a lasting nature, we withhold the right to withdraw from the contract unless the hindrance was, with appropriate diligence, discernable at the time of formation of the contract; claim to damages on the part of the customer shall not be thereby accrued. In this case we shall, in accordance with Paragraph 1 of this regulation, inform the customer promptly and effect prompt reimbursement of payments.

 

In the case of a lasting hindrance under the terms of Paragraph 3 of this regulation, the customer is similarly entitled to withdraw from the contract.

 

(6) In the case of subsequent amendments to the contract which could influence the delivery time, the delivery time shall be extended to an appropriate degree.

 

(7) We reserve the right to effect partial deliveries. Partial deliveries shall be invoiced immediately.

 

(8) Provided the services owed by us are determined only by category, we are solely obliged to deliver from our own manufacture. Should we on this basis not be obliged to deliver, we shall, in accordance with Paragraph 1 of this regulation, promptly inform the customer and effect prompt reimbursement of payments.

 

(9) In the case of service delays, the duration of the appropriate period of grace for the customer will be set at a minimum of three weeks. The inception of the period is determined by receipt of the grace period notification.

 

(10) In the case of delivery delays for which we are responsible, the customer’s entitlement to compensation is limited to 1% of the delivery value (without VAT) up to a maximum of 5% of the delivery value (without VAT) for each full week of delay. This is not valid in the case of death or injury to body or health or if we are accused of premeditation or gross negligence.

 

(11) In the event that the customer is in default of acceptance or is culpable of failing to fulfil his obligation to co-operate, we shall be entitled to demand reimbursement of the damages caused to us including any possible additional expenditure. In this case, the risk of incidental loss or deterioration of the goods is transferred to the customer from the point in time at which he became in default of acceptance.

 

 

§ 4 Retention of Proprietary Rights

 

(1) We reserve the proprietary rights to the goods until all requirements of the current commercial relationship have been honoured, irrespective of legal basis (retained goods).

 

(2) The handling and processing of retained goods is effected by us under the terms of § 950 BGB, without substantiation of our obligations. Processed goods are considered to be retained goods. In the case of retained goods being bonded or compounded with other goods, our share of the joint ownership of the newly created goods or stock goods is in proportion to the invoice value of the retained goods compared to the invoice value of the other goods. Should our ownership expire through bonding or compounding, the customer simultaneously transfers to us his right of ownership for the new item or the new stock goods to the extent of the invoice value of the retained goods. The customer shall gratuitously keep custody of the new property for us.

 

(3) In the case of retained goods being sold together with other goods, the assignment of claim through resale is valid only for our invoice value of the retained goods. In the case of sales of goods for which we have joint ownership, the assignment is valid only for the value of the joint ownership proportion.

 

(4) The customer is obliged to take due care of the goods. Should maintenance and service work be necessary, the customer is obliged to regularly effect these measures at his own cost.

 

(5) The customer is obliged to promptly inform us of seizure of the goods through third parties (e.g. distraint) as well as of possible damage or destruction of the goods. The customer is also obliged to promptly notify us regarding change of ownership of the goods as well as a location change of the customer.

 

(6) We are entitled, in the case of customer conduct deemed to be contrary to contract, particularly in the case of delayed payment or negligence of contractual duties under the terms of paragraphs 4 and 5 of this regulation, to withdraw from the contract and to demand release of the goods. In this respect we are also entitled, should the customer cease payment and/or insolvency proceedings are initiated or if circumstances arise which entitle us, in accordance with §5 paragraph 9 of this regulation, to do so, to demand immediate settlement of the entire remaining unpaid debt.

 

(7) Should we demand release of the goods under the terms of paragraph 6 of this regulation, the customer is obliged to promptly comply upon first request.

 

The customer authorises us access to the premises in which retained goods are stored, for the purpose of repossession of said goods.

 

(8) The customer is granted a revocable entitlement to resell the goods in the regular course of business. The fulfilment of a service contract or contract for work and materials, or the installation on property or equipment connected to property by the customer is deemed to be resale.

 

(9)  In the case of a customer installing or commissioning the installation of retained goods as an integral element of a third-party property, the customer exempts us with immediate effect from any demands from the third party for reimbursement with all ancillary rights (including claims to the concession of an equitable mortgage); we accept the cession.

 

Should retained goods be installed as an integral element of the customer’s property, the customer exempts us with immediate effect from any demands for reimbursement arising from the sale of the property or the property rights with all ancillary rights; we accept the cession.

 

(10) The customer exempts us with immediate effect from any demands for reimbursement incurred by him through the resale to third parties up to the value of the invoice. We accept the cession. Following cession the customer is entitled to collection of payments under his own name and on his own account. We reserve the right to collect payment ourselves, should the customer fail to fulfil his obligation to pay and be in arrears.

 

(11)  In the case of resale of the goods on credit, the customer is obliged on his part to reserve ownership of said goods. The customer exempts us from any rights and demands arising from this reservation of proprietary rights; we accept the cession.  

 

(12) In the case of the customer’s entitlement to claims against third parties, particularly insurance providers, arising through damage, deterioration, loss or destruction of retained goods or for other reasons, the customer exempts us with all ancillary rights to the value of our demands with immediate effect therefrom. We accept the cession.

 

(13)  We pledge to release, at our own choice, securities to which we are entitled should their value – not only temporarily – exceed our demands by in excess of 20%.

 

 

§ 5 Payment, Default of Payment, Offset

 

(1)  Prices are quoted net and are subject to the applicable statutory value added tax valid on the day of delivery.

 

(2) Should, as an exception, fixed prices be agreed, we reserve the right to increase the price if, between the formation of the contract and delivery, our costs are increased due to an escalation in the prices of material and elements, wages and salaries or through other cost increases.  

 

(3) Our prices are quoted ex works excluding insurance and packaging costs unless otherwise agreed in writing.

 

(4) Our invoices are to be settled by the customer promptly and without deductions.

 

(5) The customer is deemed to be in default of payment if our invoice has not been settled within 14 days of receipt. Receipt of payment for all means of payment is the day on which the sum is at our disposal, unless otherwise agreed in writing.

 

(6) For the duration of payment default the customer is liable for interest on the debt to the value of 8 percentage points over the base rate. We reserve the right to enforce further claims for damages.

 

(7) The customer is entitled to offset, to right of retention or to the enforcement of rights in accordance with §§ 438 Para. 4 and 5 as well as 634a Para. 4 and 5 BGB solely when his counterclaims are lawfully established or indisputable.

 

(8) Cheques or drafts shall be accepted only as a substitute for execution. We expressly reserve the right to refuse cheques or drafts. Any fees arising therefrom are the responsibility of the customer and are to be settled immediately.

 

(9)  Should we become aware of circumstances which could challenge the creditworthiness of the customer, particularly in the case of a cheque not being honoured or the customer ceasing payment, we shall be entitled to demand immediate settlement of the entire debt. Such circumstances entitle us to effect outstanding services only against advance payment or to demand provision of a security.

 

(10) Should the customer definitively cease payment and/or should insolvency proceedings in respect of his assets or judicial or extrajudicial settlement proceedings be filed against him, we shall be entitled to withdraw from the unfulfilled part of the contract.   

 

(11) We reserve the right, even if in opposition to his stipulation, to offset payment from the customer against older debts. Should costs and /or interest have already arisen, we shall be entitled, even if in opposition to customer stipulation, to offset the payment initially against the costs, thereafter against the interest and finally against the principal claim.

 

(12) Representatives are not authorised to collect debt without a written power of attorney.

 

 

 

§ 6 Relinquishment of Rights

 

Entitlements on the part of the customer against us may only be relinquished following our prior written agreement.

 

 

§ 7 Provision of Security

 

Should we become aware, following despatch of the order acknowledgement, of reasons which could justify the assumption that the financial status of the customer is worse than originally assumed, we shall be entitled to demand provision of security independent of the payment regulations stipulated in the order acknowledgement.

 

 

 

§ 8 Call-Off Orders

 

(1) Call-off orders are to be called within one year following order placement at the latest.

 

(2) Should call-off orders not be called in accordance with the contract conditions, we shall be entitled to calculate the due call quantities and, following the expiration of a further two-week period, send these together with any processed or unprocessed material to the customer and to demand immediate settlement of the agreed payment or at least the value of our total expenditure. 

 

(3) In the case of current scheduled deliveries, the customer is obliged to inform us as soon as possible – however, with a minimum of 6 months prior to discontinuation - regarding the phasing-out of deliveries. Non-compliance will result in the customer being obliged to reimburse all material and production expenditures. This does not affect the possibility of further claims.  

 

 

§ 9 Passing of Risk, Carriage

 

(1) The risk of coincidental loss or damage to the goods shall pass to the customer at the time of handing over or, in the case of sales by carriage, when the goods are handed to the forwarding agent, freight carrier or other delivery person or establishment for delivery to the customer. From this moment onwards, the customer is responsible for damages suffered by third parties. This also applies to carriage-paid deliveries.

 

(2) The despatch route, the method of despatch and the type of despatch, which shall be the most economical available, shall be left to our choice and we shall be thereby exempt from liability and warranty.  

 

(3) Should the delivery be delayed or not effected at the request of the customer, the risk shall be transferred to the customer from the moment that the notification of readiness to despatch is issued. Furthermore, we shall be entitled to invoice the customer, following the expiration of a one-month period after notification of readiness to despatch, for storage costs in our premises at a minimum of 0.5% of the invoice value.

 

(4) The customer can request that deliveries are insured in his name and at his own cost. The customer is obliged to submit this request in writing at the time of ordering.

 

(5)  Reclamations concerning missing parts must be lodged within a maximum of one week following receipt of the delivery.

 

 

 

§ 10 Packaging

 

The goods shall be packaged, should this be requested by the customer or if we regard it as necessary. The packaging will be invoiced at cost price unless otherwise agreed in writing. Customer claims regarding deficient packaging shall be excluded unless they are due to premeditated or gross negligent conduct on our part.

 

 

§ 11 Guarantee

 

(1) Guarantee claims from the customer presume that the customer has fulfilled his duty regarding inspection, notification, and rejection in accordance with §§ 377 and 378 of the Handelsgesetzbuch (HGB), the German Commercial Code, otherwise the goods shall be deemed as having been approved and the entitlement to claim guarantee shall be excluded.     

 

The customer is also obliged, in accordance with § 377 HGB, to inspect and reject the goods contained in a false delivery. Should a prompt rejection not be notified, the goods shall be deemed as having been approved.

 

(2) Should the goods be despatched to a third party and not to the customer, the customer shall be obliged to ensure that the goods are promptly inspected and accepted, otherwise the goods shall be deemed as having been delivered in accordance with the contract.

 

(3) We reserve the right to either repair or replace faulty goods. Multiple repairs of up to three attempts are permissible.

 

The customer is obliged to hold the rejected goods, in the condition in which they were found at the time of rejection, for our inspection.

 

(4) Should the repair attempts fail or should we decline to repair, the customer is entitled to demand reduction of payment or the rescission of the contract. In the case of minor infringements of contract, particularly in the case of minor defects, the customer is not entitled to withdraw from the contract.

 

(5) Should the customer decide to withdraw from the contract as a result of failed supplementary performance, he shall not be entitled to claim for damages for the defects.

 

(6) Public announcements, targeting measures or advertising statements on our part or on the part of the manufacturer do not constitute contractual specification guarantees for the goods shown.

 

(7) The limitation period for defect claims is, for the cases according to §§ 438 Para. 1 No. 2 and 634a Para. 1 No. 2 BGB, one year following delivery of the goods. This does not apply if we can be accused of fraudulent intent or gross default. Furthermore, this does not apply for claims from the customer concerning damage to life, body or health. The obligation regarding punctual notification of defects in accordance with Para. 1 of this regulation remains unaffected.

 

(8) In other cases the limitation period for defect claims is one year following delivery of the goods. This does not apply if we can be accused of fraudulent intent or gross default. Furthermore, this does not apply for claims from the customer concerning damage to life, body or health. The obligation regarding punctual notification of defects in accordance with Para. 1 of this regulation remains unaffected.

 

(9) Should the customer receive defective installation instructions, we shall merely be obliged to deliver instructions which are free of defects and only then if the defect in the instructions prevents the correct installation of the goods.

 

 

(10)  Should the customer fail to comply with our operating or servicing instructions, undertake alterations on the products, substitute parts of the product or deploy unsuitable expendable material, all guarantee claims shall be excluded, provided that the customer does not deny that the defect was caused by one of these measures.  

 

(11) The customer shall not receive a guarantee under the meaning of the law from us.

 

 


§ 12 Limitation of Liability

 

(1) In the case of slight negligence concerning breach of duty our liability is restricted - irrespective of the legal foundation subject to the provision in Para. 3 of this regulation – to the predictable, typical of contract and direct damage relevant to the type of goods. This also applies in the case of slightly negligent breach of duty on the part of our legal representatives or auxiliary persons.   

 

(2) We and/or our auxiliary persons or vicarious agents shall not be held liable, irrespective of the legal foundation subject to the provision in Para. 3 of this regulation, in the case of slight negligence concerning insignificant contractual obligations.

 

(3) The limitation of liability in Para. 1 and 2 of this regulation does not apply to product liability claims on the part of the customer. Neither does it apply to claims from the customer concerning damage to life, body or health.

 

 

 

§ 13 Final Provisions

 

(1) The law of the Federal Republic of Germany applies with the exclusion of the UN Convention on Contracts for the International Sale of Goods.

 

(2)  Alterations or supplements to the contract between us and the customer must be effected in writing, whereby the notification per Fax is adequate. This also applies to a waiver of the requirement for written form.

 

(3) If the customer is a tradesman, judicial person of a public institution or public special assets, the place of fulfilment and sole place of jurisdiction for disputes arising from this contract shall be our official business location. This also applies should the customer have no general place of jurisdiction in Germany or his place of residence or usual abode is unknown at the time of filing of a complaint.  

 

(4) Should any provision of the contract with the customer including these General Terms and Conditions be or become completely or partly void, the validity of the remaining provisions shall not be affected thereby. The void provision shall be replaced by a provision that legally closest resembles the intention of the parties at the time of conclusion of the agreement. The same shall apply should an omission in the contract be detected.

 

(5) We are obliged to indicate that, within the framework of our business relations, incidental personal information will be recorded.

 

 

 

Stand: 01. Januar 2008

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