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General Terms and Conditions Basedo Steel GmbH
(Status 5.2014)
I. General
1. These General Terms and Conditions of Business and Delivery apply to all – including future – contracts for deliveries and other services. In the case of third-party business, the conditions in the price list of the commissioned delivery plant also apply. The purchaser's terms and conditions of purchase are not recognized even if we expressly object to them again after we have received them.
2. Our offers are non-binding. Orders from the buyer are only binding for us if they have been confirmed by us in writing. The same also applies to changes to orders. However, we are entitled to accept an order by executing the order without prior confirmation. Acceptance can take place within a reasonable period of time after receipt of the order. The written form is also maintained in the case of transmission by fax or other electronic transmission (e.g. e-mail).
3. Oral agreements, promises, assurances and guarantees by our employees in connection with the conclusion of the contract only become binding after our written confirmation.
4. In case of doubt, the most recent version of the Incoterms shall be decisive for the interpretation of trade clauses.
II. Prices
1. Unless otherwise agreed, the prices and conditions of the price list valid at the time of the conclusion of the contract shall apply. The goods are charged "gross for net".
2. Unless otherwise agreed, the prices are ex works or ex warehouse plus freight, value added tax and import duties.
3. If the sum of the costs incurred outside our company and included in the agreed price changes later than four weeks after the conclusion of the contract, we are entitled to adjust the prices to the appropriate extent on the first of the calendar month.
4. In the event that the adjusted price exceeds the starting price by more than 10%, the buyer has the right to withdraw from the contract with regard to the quantities affected by the price adjustment when the price adjustment takes effect. The right of withdrawal can only be exercised within one week of becoming aware of or being able to become aware of the price adjustment.
III. Payent and Settlement
1. Payments must be made in the currency in which the price is stated on the invoice.
2. Payment must be made - without deduction of discount - in such a way that we can dispose of the remaining amount on the due date. The buyer bears the costs of payment transactions. The place of fulfillment for the payment is the registered office of the seller.
3. If a deviating discount deduction has been agreed, this always refers only to the invoice value excluding freight and requires the complete settlement of all due liabilities of the buyer at the time of the discount. Unless otherwise agreed, discount periods begin from the invoice date.
4. If, after conclusion of the contract, it becomes apparent that our claim for payment is jeopardized by the buyer's inability to pay, or if the buyer is in default of payment of a significant amount, or if other circumstances arise that indicate a significant deterioration in the buyer's financial situation after the conclusion of the contract thus the statutory rights to refuse performance. We are then also entitled to call in all claims from the current business relationship with the buyer that are not yet due.
5. If the payment deadline is exceeded or if there is a delay, we will charge interest at the statutory default interest rate, unless higher interest rates have been agreed. We reserve the right to assert further damages.
6. The buyer is only entitled to a right of retention and an authorization to set off insofar as his counterclaims are undisputed or have been legally established.
IV. Delivery times and dates
1. Our delivery obligation is subject to correct and timely delivery to ourselves and, in the case of import transactions, also to the receipt of monitoring documents and import permits, unless the incorrect or late delivery is our fault.
2. Delivery times are approximate. Delivery periods begin on the date of our order confirmation and only apply if all details of the order have been clarified in good time and all obligations of the buyer have been fulfilled in good time, such as providing all official certificates or making down payments.
3. The time of dispatch ex works or warehouse is decisive for compliance with delivery times and dates. They are deemed to have been met upon notification of readiness for dispatch if the goods cannot be dispatched on time through no fault of our own.
4. Events of force majeure entitle us to postpone deliveries for the duration of the hindrance and a reasonable start-up time. This also applies if such events occur during an existing delay. Equal to force majeure are monetary, commercial and other sovereign measures, strikes, lockouts, operational disruptions for which we are not responsible (e.g. fire, machine and roller breakage, shortage of raw materials and energy), obstructions to transport routes, delays in import/customs clearance, and all other circumstances for which we are not to blame, which make deliveries and services significantly more difficult or impossible. It is irrelevant whether the circumstances occur at our delivery plant or at another sub-supplier. If, as a result of the aforementioned events, one of the contracting parties cannot be reasonably expected to carry out the work, they can withdraw from the contract.
V. Retention of title
1. All delivered goods remain our property (reserved goods) until all claims have been settled, in particular the respective balance claims to which we are entitled within the framework of the business relationship. This also applies to future and conditional claims, e.g. from changes of acceptor, and also if payments are made on specially designated claims. This reservation of balance finally expires with the settlement of all claims still open at the time of payment and covered by this reservation of balance.
2. Treatment and processing of the reserved goods are carried out for us as the manufacturer within the meaning of Section 950 of the German Civil Code, without any obligation on our part. The treated and processed goods are considered reserved goods within the meaning of Section 1. If the buyer processes, combines or mixes the reserved goods with other goods, we are entitled to co-ownership of their new item in proportion to the invoice value of the reserved goods to the invoice value of the others goods used. If our ownership expires as a result of connection or mixing, the buyer hereby transfers to us the ownership rights to which he is entitled to the new inventory or the item to the extent of the invoice value of the reserved goods and denies them to us free of charge. Our co-ownership rights are considered reserved goods within the meaning of Section 1.
3. The buyer may only sell the goods subject to retention of title in the ordinary course of business under his normal terms and conditions and as long as he is not in default, provided that the claims from the resale in accordance with Sections 4 to 6 are transferred to us. He is not entitled to other disposals of the reserved goods.
4. The claims from the resale of the reserved goods are assigned to us together with all securities that the buyer acquires for the claim. They serve as security to the same extent as the reserved goods. If the reserved goods are sold by the buyer together with other goods not sold by us, the claim from the resale is assigned to us in the ratio of the invoice value of the reserved goods to the invoice value of the other goods sold. When selling goods in which we have co-ownership shares in accordance with Section 2, a part corresponding to our co-ownership share is assigned to us.
5. The buyer is entitled to collect claims from the resale. This direct debit authorization expires in the event of our revocation, but at the latest in the event of default of payment. Non-payment of a bill of exchange or application for the opening of insolvency proceedings. We will only make use of our right of revocation if, after the conclusion of the contract, it becomes apparent that our claim for payment from this or other contracts with the seller is at risk due to the seller's inability to pay. At our request, the buyer is obliged to inform his customers immediately of the assignment to us and to give us the documents required for collection.
6. The buyer must inform us immediately of any seizure or other impairment by third parties. The buyer bears all costs that have to be incurred to remove access or to transport the reserved goods back, unless they are reimbursed by third parties.
7. If the buyer defaults on payment or does not redeem a bill of exchange when it is due, we are entitled to take back the reserved goods and, if necessary, to enter the buyer's premises for this purpose and to sell the reserved goods at the best possible price, offsetting them against the purchase price. The same applies if, after the conclusion of the contract, it becomes apparent that our claim for payment from this or other contracts with the buyer is at risk due to the buyer's lack of ability to pay. The return is not a withdrawal from the contract. Provisions of the Insolvency Ordinance remain unaffected.
8. If the realizable value of the existing securities exceeds the secured claims including ancillary claims (interest, costs, etc.) by a total of more than 50%, we are obliged to release securities of our choice at the request of the buyer.
VI. qualities, dimensions and weights
1. Grades and dimensions are determined according to the DIN/EN standards or material sheets, references to standards, material sheets or factory test certificates and information on grades, dimensions, weights and usability are not quality statements, assurances or guarantees, nor are statements on the Origin of the goods, declaration of conformity, manufacturer's declarations and corresponding marks such as "Ü" sign, CE and GS
2. The weighing carried out by us or our pre-supplier is decisive for the weights. Proof of weight is provided by presenting the weighing slip. As far as legally permissible, weights can be determined without weighing according to the relevant standards. The usual surcharges and deductions (trade weights) in the steel trade in the Federal Republic of Germany remain unaffected. Weight deviations of up to 0.5% do not justify a complaint.
3. The number of pieces, bundles, etc. specified in the shipping notification are non-binding. If no individual weighing has been agreed, the total weight of the delivery applies. Differences compared to the calculated individual weights are distributed proportionately among them.
VII. Acceptance
1. If an acceptance has been agreed or corresponding material standards provide for such, it can only take place in the supplying plant or our warehouse immediately after notification of readiness for acceptance. The buyer bears the personal acceptance costs, the material acceptance costs are calculated according to our price list of the supplying plant.
2. If the acceptance does not take place through no fault of our own, not on time or incompletely, we are entitled to dispatch the goods without acceptance or to store them at the expense and risk of the buyer and to charge him.
VIII. Shipping, Passing of Risk, Packaging, Partial Delivery, Continous Delivery
1. We determine the shipping route and means as well as the forwarding agent and carrier.
2. Goods that have been reported as ready for dispatch in accordance with the contract must be called off immediately, otherwise we are entitled, after a reminder, to dispatch them at the expense and risk of the buyer at our discretion or to store them at our discretion and to invoice them immediately.
3. If, through no fault of our own, transport on the intended route or to the intended place in the intended time becomes impossible or considerably more difficult, we are entitled to deliver by another route or to another place; the additional costs incurred shall be borne by the buyer. The buyer will be given the opportunity to comment beforehand.
4. The goods are delivered unpackaged and not protected against rust. If customary in the trade, we deliver packed. In our experience, we provide packaging, protection and/or transport aids at the expense of the buyer. They will be taken back at our warehouse. We do not bear the costs of the buyer for the return transport or for their own disposal of the packaging.
5. When the goods are handed over to a forwarding agent or carrier, but no later than when they leave the warehouse or the delivery plant, the risk, including that of confiscation of the goods, passes to the Buyer over.. We only provide insurance on the instructions and at the expense of the buyer.
6. We are entitled to partial deliveries to a reasonable extent. Excess and short deliveries customary in the industry are permitted up to 10% of the concluded quantity.
7. In the case of contracts with continuous delivery, call-offs and type adjustments for approximately the same monthly quantities are to be given to us; otherwise we are entitled to make the determinations ourselves at our reasonable discretion.
8. If the individual call-offs exceed the total contractual quantity, we are entitled, but not obliged, to deliver the excess quantity. We can calculate the additional quantities at the prices valid at the time of call or delivery.
9. Unless otherwise agreed, call orders are to be processed within 356 days of the conclusion of the contract. After the period has expired, we are entitled to store the goods that have not been called up at the expense and risk of the buyer and to charge him.
IX. Liability and Material Defects
1. Material defects in the goods must be reported in writing immediately, no later than seven days after delivery. Defects that cannot be discovered within this period after careful examination must be reported in writing immediately after discovery, at the latest before the end of the agreed and statutory limitation period, with immediate cessation of any treatment and processing.
2. In the case of justified, timely notification of defects, we can choose to remedy the defect (rectification) or deliver goods free of defects (replacement delivery). If the subsequent performance fails or is refused, the buyer can withdraw from the contract or reduce the purchase price after a reasonable period of time has expired without success. If the defect is not significant or if the goods have already been processed or redesigned, he is only entitled to the right of reduction.
3. We shall only assume expenses in connection with supplementary performance if these are reasonable in the individual case, particularly in relation to the value of the defect-free goods, but under no circumstances if they exceed 150% of the purchase price. We do not assume any expenses incurred as a result of the sold goods being taken to a location other than the agreed place of performance.
4. After the buyer has carried out an agreed acceptance of the goods, complaints about defects that were detectable in the agreed type of acceptance are excluded.
5. If the buyer does not immediately give us the opportunity to convince ourselves of the defect, if he does not immediately make the goods complained about or samples of them available for inspection purposes upon request, all rights due to the material defect shall lapse.
6. In the case of goods that have been sold with declassified material, the buyer is not entitled to any rights arising from material defects with regard to the stated reasons for declassification and such defects that he usually has to reckon with. When selling 2a goods, our liability for material defects is excluded.
X. General Limitation of Liability and Statue of Limitations
1. We are only liable for violations of contractual and non-contractual obligations, in particular impossibility, default, culpa in contrahendo and tortious acts – including for our senior employees and other vicarious agents – in cases of intent and gross negligence, limited to the contractually typical foreseeable at the time the contract was concluded Damage. For the rest, our liability, even in the case of defects and consequential damages, is excluded.
2. This limitation does not apply in the case of culpable violation of essential contractual obligations, insofar as the achievement of the purpose of the contract is endangered, in the case of culpably caused damage to life, limb and health and also not if and to the extent that we guarantee the quality of the sold have taken over the item, as well as in cases of mandatory liability under the Product Liability Act. The rules on the burden of proof remain unaffected.
3. Unless otherwise agreed, contractual claims which the buyer has against us as a result of and in connection with the delivery of the goods shall become statute-barred one year after delivery of the goods. Our liability for intentional and grossly negligent breaches of duty, culpably caused damage to life, limb and health as well as the statute of limitations for statutory recourse claims remain unaffected by this.
XI. Impermissible onward delivery / misdirection / proof of export
1. Products that are not expressly sold for export to third countries may not be taken to countries outside the economic area of??the European Union in an unprocessed state. At our request, the buyer must prove the whereabouts of the goods.
2. If the buyer violates this obligation, he has to pay us a contractual penalty of 30% of the agreed purchase price. We are entitled to demand compensation for the actual damage instead.
3. The buyer is responsible for ensuring that the products do not reach any other destination than the one agreed with us.
4. If the buyer breaches this obligation and
- derives an unjustified advantage from this when calculating the freight, he must pay us a contractual penalty of three times the value of this advantage;
- derives an unjustified price advantage from this, he has to pay us a contractual penalty of three times the value of this advantage.
5. At our request, the buyer must prove that he has fulfilled the obligation stated in paragraph 1.
6. In all permissible cases of shipment of goods outside the territory of the European Union, the buyer must present us with the export certificate required for tax purposes upon collection. Otherwise, the buyer undertakes to pay us an amount equal to the applicable sales tax rate for domestic deliveries from the invoice amount.
XII. Place of performance, place of jurisdiction and applicable law
1. The place of performance for our deliveries is the supplying plant for deliveries ex works, and our warehouse for other deliveries. The place of jurisdiction is Düsseldorf or the buyer's registered office, at our choice.
2. For all legal relationships between us and the buyer, the law of the Federal Republic of Germany applies in addition to these conditions, excluding the UN Convention of 11. April 1980 on contracts for the international sale of goods (CISG) application.
XIII. Applicable version
In case of doubt, the German version of these general terms and conditions is authoritative.
XIV. Partial Invalidity
If individual provisions of these general terms of delivery and payment or individual agreements of the contracts concluded on the basis of these terms and conditions are wholly or partially invalid or unenforceable, this does not affect the effectiveness of other provisions. In this case, the parties will replace the invalid or unenforceable provision that corresponds to the economic purpose of the invalid or unenforceable provision as far as permissible.