General terms and conditions

Terms of delivery and payment of Schmies Edelstahl GmbH & Co. KG

I. OFFER
The documents belonging to the offer, such as illustrations, drawings, weights and dimensions, are approximately binding only unless they are expressly designated as binding. The seller reserves the right of ownership and copyright to cost estimates, drawings and other documents. They may not be made accessible to third parties.

II. DELIVERY SCOPE
The seller’s written order confirmation shall be binding for the delivery scope. In the case of an offer by the seller with a time limit and acceptance within a prescribed time limit, the offer shall be sufficient unless an order confirmation is received in good time. Additional agreements and amendments require the written confirmation of the seller.

III. PRICE AND PAYMENT

  1. Unless otherwise agreed, prices shall be ex works or ex warehouse, including loading at the factory or warehouse, but excluding packaging. Value added tax at the statutory rate is added to the prices.
  2. Payment must be made without discount deduction in such a manner that the seller shall have the amount at its disposal on the due date. The buyer may offset only against undisputed or legally established claims. The buyer shall be entitled to rights of retention only insofar as they are based on the same contractual relationship.
  3. Payment must be made without discount deduction in such a manner that the seller shall have the amount at its disposal on the due date. The buyer may offset only against undisputed or legally established claims. The buyer shall be entitled to rights of retention only insofar as they are based on the same contractual relationship.
  4. Interest on arrears (§363 German Commercial Code) and interest on arrears shall be charged at 2 % p.a. above the discount rate of the Deutsche Bundesbank, plus VAT in each case. The interest rate must be higher or lower if the seller can prove a charge with a higher interest rate or of the buyer can prove a lower charge. If instalments have been agreed, the entire remaining debt – irrespective of the due date of any bills of exchange – shall become due for payment immediately if

a) the buyer, who is not registered as a merchant in the commercial register, is in default with at least two consecutive instalments in whole or in part and the amount in default of payment is at least 1/10 of the purchase price.

b) the buyer, who is entered in the commercial register as a merchant, is 14 days in arrears with an instalment, suspends payment or composition or bankruptcy proceedings have been applied for against the buyer’s assets.

IV. DELIVERY PERIOD

  1. The delivery period shall commence with the dispatch of the order confirmation, but not before the orderer has provided the documents, authorisations and approvals to be procured and an agreed advance payment has been received.
  2. The delivery deadline shall be deemed to have been met if the delivery item has left the factory or readiness for dispatch has been notified by the time it expires.
  3. The delivery deadline shall be extended appropriately in case of measures within the scope of labour disputes, particularly strikes and lock-outs, as well as during the occurrence of unforeseen events that are outside the seller’s intention, insofar as such obstacles demonstrably have a considerable influence on the completion or delivery of the delivery item. This also applies if the circumstances occur at subcontractors. The seller shall not be responsible for the aforementioned circumstances even if they occur during an already existing delay In important cases, the seller shall inform the buyer of the beginning and end of such obstacles as soon as possible.
  4. If the buyer incurs damages due to a delay caused by the seller’s own fault, the buyer shall be entitled to claim compensation for delay to the exclusion of any further claims. For each full week of delay, this shall amount to 1/2 per cent, but in total not more than 5 per cent of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay.
  5. If shipment is delayed at the buyer ‘s request, the buyer shall be charged the costs incurred for storage starting one month after notification of readiness for dispatch but at least 1/2 per cent of the invoice amount for each month if the goods are stored at the seller’s factory. However, the seller shall be entitled to dispose of the object of purchase otherwise after setting a reasonable deadline which has expired without result and to supply the buyer within a reasonably extended deadline.
  6. Meeting the delivery deadline presumes performance of the contractual obligations on the part of the buyer.

V. TRANSFER OF RISK AND ACCEPTANCE

  1. The risk shall pass to the buyer at the latest upon dispatch of the object of purchase or parts thereof, even if partial deliveries are made or the seller has assumed other services, e.g. shipping costs or delivery and installation. At the buyer ‘s request and expense, the seller shall insure the shipment against theft, breakage, transport, fire and water damage and other insurable risks.
  2. If shipment is delayed due to circumstances for which the buyer is responsible, the risk shall pass to the buyer from the day on which the goods are ready for dispatch.
  3. Delivered items, even if they have minor defects, are to be accepted by the buyer regardless of the right under Section VII.
  4. Partial deliveries are permissible.

VI. RETENTION OF TITLE

  1. The seller retains title to the purchased item until all claims have been fulfilled, in particular also the respective balance claims to which it is entitled within the scope of the business relationship. This also applies to future and conditional claims.
  2. Any processing or remodelling of the purchased item by the buyer shall always be carried out for the seller. 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 value of the purchased item to the other processed items at the time of processing.
  3. If the purchased item is mixed with other items not belonging to the seller, the seller shall acquire co-ownership of the new item in the ratio of the value of the purchased item to the other mixed items at the time of mixing. In this case, the buyer hereby already assigns the rights of ownership or attorney’s rights to the new stock or item to us to the extent of the invoice value of the goods subject to retention of title, in the case of processing in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used, and shall store them free of charge for the seller.
  4. The buyer may resell the reserved goods in the ordinary course of business only at its normal terms and conditions and as long as it is not in default, provided that it reserves ownership and the claims from the resale are transferred to the seller. It is not authorised to dispose of the goods subject to retention of title in any other way. The buyer’s claims arising from the resale of goods subject to retention of title shall hereby be assigned to the seller. They serve as security to the same extent as the goods subject to retention of title within the meaning of Clause 1.
  5. If goods subject to retention of title are resold by the buyer with other goods, the claim from the resale shall be assigned to the seller in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods. In the event of the sale of goods in which the seller has co-ownership shares in accordance with Clauses 2 and 3, a part of the claim corresponding to his co-ownership share shall be assigned to the seller.
  6. The buyer is authorised to collect claims from the resale until revoked. At the request of the seller, it is obliged to disclose the assignment to its customers and to provide the seller with the information and documents required for collection. The buyer shall never be authorised to assign the claim.
  7. The buyer must inform the seller immediately of any seizure or other impairment by third parties.
  8. The seller undertakes to release the securities to which it is entitled at the request of the buyer to the extent that the value of this security exceeds the claims to be secured by more than 20 %.

VII. WARRANTY RIGHTS

  1. In the event of justified, immediate notification of defects, the seller shall be entitled and obligated, at its discretion, to either take back the goods and deliver a replacement or to repair the delivered goods. Only if the seller does not fulfil these obligations within a reasonable period of time shall the seller be entitled to the other statutory warranties. Claims for damages, in particular for loss of profit or due to other financial losses of the buyer, are precluded unless the claims are related to intentional or grossly negligent damage by the seller, a legal representative or an agent of the seller. In cases of the absence of warranted features, we shall be liable for damages only to the extent that the purpose of the warranty was to protect the purchaser against such actual damage.
  2. The buyer must immediately give us the opportunity to ascertain the defect ourselves, in particular to make the rejected goods or samples thereof available on request.
  3. After an agreed acceptance procedure has been carried out, a notice of defects that can be detected during this acceptance procedure is precluded.
  4. In the case of goods sold as declassified material, the buyer shall not be entitled to any warranty rights with regard to the stated defects and those that it must expect as a general rule.

VIII. PLACE OF FULFILMENT AND JURISDICTION, APPLICABLE LAW

  1. The place of fulfilment and jurisdiction for both parties to the contract shall be the local court responsible for Schmies Edelstahl. The seller shall also be entitled to sue the buyer at its general place of jurisdiction.
  2. The law of the Federal Republic of Germany shall apply exclusively to the relationship between the seller and the buyer.

Eisenstraße 5 – 7, 30916 Isernhagen – 2011