General Terms and Conditions of Business
Terms and Conditions of Delivery and of Payment of Schmies Edelstahl GmbH & Co. KG
Documents associated with the offer such as illustrations, drawings, weights and measures data etc. are approximations unless specifically stated to be binding. The seller retains title and copyright in costing proposed, drawings and other documents. Same may not be made accessible to third parties.
II. SCOPE OF DELIVERY
Scope of delivery is governed by the seller’s written order confirmation. If an offer from the seller has a deadline and acceptance is within the time set then the offer suffices if no punctual order confirmation exists. Any and all ancillary provisions and/or amendments are subject to the seller’s written confirmation.
III. PRICE AND PAYMENT
1. Prices are ex works or warehouse unless otherwise agreed and include loading at the works or warehouse but excluding packaging. Prices quoted are subject to VAT.
2. Payment is to be rendered net without any deduction for prompt payment. The seller must dispose of the amount payable on its due date.The buyer may offset only claims that are uncontested or res judicata. The buyer only has a right of retention in the same contractual relationship.
3. Interest payable after the due date (§363 German Commercial Code [HGB]) and for arrears is 2% over the discount rate of the Deutsche Bundesbank plus VAT in each and every case.Same may be amended if the seller can prove a higher interest rate applies or the buyer a lesser one.
4. If part payment is agreed then the entire residual debt falls immediately due and payable regardless of the due date of any bill of exchange if
a) a buyer who is not registered in the Commercial Register as a merchant defaults on at least two consecutive installments be it in whole or in part and the amount of the arrears is equal to at least 1/10 of the purchase price.
b) A buyer is registered in the Commercial Register as a merchant and is in arrears of at least a fortnight with at least one installment, ceases to make any payments at all or legal bankruptcy or settlement proceedings are applied for against their assets.
IV. DELIVERY PERIOD
1. The delivery period begins when order confirmation is sent but not before the orderor has supplied the required documents, approvals, permits and releases and any deposit agreed.
2. The delivery period is considered adhered to if the goods to be contractually rendered have left the works or its/their readiness for shipment has been advised before it expires.
3. The delivery period is extended appropriately in the event of industrial disputes, especially strikes and lockouts, and if any unforeseeable events beyond the seller’s control occur, insofar as it can be proved that same significantly hinder the manufacture or delivery of the items to be contractually delivered.The same applies mutatis mutandis to the buyer.The seller cannot accept any liability whatsoever for the aforementioned events or circumstances if they occur during any extant delay. The beginning and end of any such hindrance prevailing will be advised the orderor by the seller in important cases as soon as possible.
4. The buyer is entitled to assert claim for any damage they suffer due to any delay for which the seller can be held liable. They then have no right to assert any further claim for damages due to any such delay.Damages due to any such delay are 0.5% for each week or part thereof but not more than 5% of the value of the part/s of the total shipment that could not be punctually or contractually utilized due to said delay.
5. If shipment is delayed at the buyer’s request then the buyer will be invoiced the storage / warehousing costs incurred beginning one month from advice of readiness for shipment. Said costs will be at least 0.5% of the invoiced amount per month or part thereof if the goods are stored / warehoused at the seller’s works.The seller is entitled to otherwise dispose of the object of purchase after fruitlessly setting a suitable period of grace and to then supply the orderor after appropriate delay.
6. Adherence to the period of delivery laid down predicates fulfillment by the buyer of their contractual obligations.
V. TRANSFER OF RISK AND ACCEPTANCE
1. The risk passes to the buyer at the latest when the object of purchase is shipped even if part shipment is made or the seller has assumed responsibility for other goods and/or services such as shipment costs or delivery and installation. Shipments can be insured against theft, breakage, shipment damage, fire and water damage and other insurable risks at the buyer’s request.
2. If shipment is delayed for reasons for which the buyer can be held liable then the risk passes to the buyer on the date of readiness for shipment.
3. Goods supplied are to be accepted by the buyer regardless of any right/s in Section VII even if they have minor defects.
4. Part shipments are permissible.
VI. RESERVATION OF TITLE
1. The seller reserves title in the object of purchase until all their demands have been met – particularly for settlement of account – under the terms and conditions of the relevant commercial relationship/s.This also applies to future and to conditional demands.
2. Processing or modification of the object of purchase by the buyer is always on behalf of the seller.If the object of purchase is processed together with other items not belonging to the seller then the seller acquires title in the resultant item/s pro rata to the value of the object of purchase to the other processed item/s at the time same was carried out.
3. If the object of purchase is mixed with other items not belonging to the seller then the seller acquires title in the resultant item/s pro rata to the value of the object of purchase to that of the other mixed item/s at the time said mixing was carried out.In such case the buyer herewith assigns us the property and expected future rights in the new item/s in the scope of the invoice value of the item/s subject to retention of title; in the event of processing pro rata of the invoice value of the item/s subject to retention of title to that of the other item/s used and keeps same free of charge for the seller.
4. The buyer of the item/s subject to retention of title may only sell same subject to their usual terms and conditions of business in the course of their normal business and as long as they are not in arrears provided they reserve title therein and the right/s to assert claim/s arising from such sale is/are transferred to the seller. They are not entitled to otherwise dispose of the item/s subject to retention of title.The buyer’s right/s to assert claim/s arising from said sale of the item/s subject to retention of title is/are herewith assigned the seller.They serve to the same extent as security as do/es the item/s subject to retention of title within the meaning of number 1 above.
5. If the item/s subject to retention of title are sold by the buyer with any other item/s then the seller is assigned the right/s to assert claim/s arising out of said sale pro rata of the invoice value of said item/s to that of the other item/s involved. When selling items in which the seller has a pro rata share of title per 2 and/or 3 above part/s of the right/s to assert claim/s are assigned the seller pro rata to their title share.
6. The buyer is entitled to assert claim/s arising out of such sale unless and until otherwise agreed. They are obliged on the seller’s request to reveal said assignment to their buyer/s and provide the seller with the information and documentation needed to make such assertion.The buyer is not entitled to assign any right/s to assert any such claim/s.
7. Hypothecation or other impairment by any third party must be advised the buyer by the seller promptly.
8. The seller undertakes to release any securities due to them to the extent their value exceeds any claims to be secured by over 20% at the request of the buyer.
VII. GUARANTEE / WARRANTY RIGHTS
1. In the event of justified prompt complaint of any defect the seller is authorized and obligated either to take the item/s back and replace it/them or to remedy same.The seller is only entitled to the remaining guarantee rights in law if they do not meet said duties within an appropriate period of time.Any right to assert claim for damages, particularly for loss of profits or any other damage to the buyer’s assets, is excluded unless same is/are associated with deliberate or grossly negligent damage by the seller, their legal representative/s or vicarious agent/s.If promised characteristics are lacking we will assert claim for damages only to the extent said promise had the purpose of safeguarding the buyer against the damage suffered.
2. The buyer must promptly allow us to determine the defect/s concerned ourselves and in particular make the item/s complained of or samples thereof available on request.
3. Once an agreed formal acceptance procedure has been carried out defects that could have been detected during same cannot be complained of.
4. Items sold as declassified material are not subject to any guarantee or warranty for the buyer where the defect/s given and those which they must make allowance for in the normal course of business is/are concerned.
VIII. APPLICABLE LAW, PLACE OF PERFORMANCE AND OF JUDICATURE
1. Place of performance and of judicature for both contracting parties is the county court holding jurisdiction for Schmies Edelstahl.The seller may also institute proceedings against the buyer at the latter’s place of judicature.
2. German law is the sole applicable law to the legal relationship between buyer and seller.
Eisenstrasse 5 – 7, 30916 Isernhagen – 2011