General Terms and Conditions GKS Stahl- und Maschinenbau GmbH
Last amended August 2012
We sell exclusively on the basis of the Terms and Conditions of Sale, Delivery and Payment set out below. Terms and Conditions of Procurement of the Customer are hereby expressly rejected. Our General Terms and Conditions apply to all future business relations insofar as the Customer is not a Registered Trader under German Law within the meaning of German Commercial Code (HGB).
§1 Conclusion of the contract
Offers made by the Seller are generally without engagement and non-binding. The delivery agreement shall not enter into force until acceptance on our part of the order of the Customer (confirmation of order). Block orders (= blanket orders) and rescheduled orders require express agreement. The maximum deadline for goods purchased on a requisition basis shall be five months, within which time the goods are to be requisitioned in full insofar as no express agreement to the contrary has been made. Amendments to the contract and verbal side agreements shall not be valid unless made in writing. Forward transactions shall require special agreement.
Prices are based on the cost structure on the day of confirmation of order. In the event that a binding price agreement has been concluded, the Seller may adjust prices notwithstanding any such price agreement in the event that four months have elapsed since the conclusion of the contract and in the event that delivery and service have been directly or indirectly affected and rendered more expensive by additional public levies, ancillary fees, freight costs or an increase in such fees and costs or by changes to cost factors such as wage or material costs on which the prices of the Seller are based. The above shall not apply to services rendered to a Customer who is not a Registered Trader under German Law. In the absence of any agreement to the contrary, prices are quoted ex works. Packaging is charged separately and will not be taken back. All prices stated are subject to statutory Value Added Tax at the prevailing rate at time of delivery. VAT is shown and charged separately.
§ 3 Tolerances
§ 3.1 Technical tolerances
The usual tolerances accepted within the polyurethane sector shall apply with respect to fulfilment of technical properties.
§ 3.2 Quantity tolerances for special articles
An order shall be deemed to have been executed by the Seller if delivery takes place within a tolerance of +/- 10% with regard to the quantity ordered by the Customer.
§ 4 Delivery
Risk shall pass to the Customer at the time when goods are handed into the care of a forwarding agent or carrier and no later than at the time when the goods leave the warehouse or, in the case of third party fulfilment, at the time when the goods leave the delivery plant. Insurance will only be taken out on the instruction of, on behalf of and for the account of the Customer. Delivery deadlines and dates shall be deemed to have been fulfilled if goods have left our warehouse by the time when such delivery deadlines and dates expire. Said delivery deadlines and dates shall be extended by an appropriate degree in the event of measures undertaken within the scope of industrial action, in particular strikes and lockouts, and in the event of unforeseeable hindrances which are beyond our control insofar as it can be demonstrated that such hindrances exert a significant influence on the manufacture or delivery of goods. The above shall also apply in cases where such circumstances affect pre- suppliers. We shall notify the Customer of circumstances of this nature without delay. In the event that such circumstances render the execution of the contract unreasonable for one of the parties, said party may to this extent withdraw from the agreement. We shall be entitled to make partial deliveries comprising reasonable quantities.
§ 5 Liability for defects
The Customer shall immediately inspect goods received for defects and shall notify the Seller in writing of any obvious defects without delay. Goods shall be deemed to have been accepted as being in a proper condition if no such notification of defects is received in the correct form and/or in a timely manner. In such a case, the Customer shall not be entitled to assert claims of any kind. The above shall not apply to services rendered to a Customer who is not a Registered Trader under German Law. If and insofar the purchaser's notification of defects is justified and insofar as such a notification has been made without delay we may, at our discretion, choose to remedy the defect or deliver non-defective goods (supplementary performance). In the event that we fail or decline to render such supplementary performance, the Customer may reduce the purchase price or else withdraw from the contract upon the elapse of an adequate deadline set by the Customer. In the event that a defect is minor in nature, the Customer shall only be accorded the right to reduce the purchase price. We shall bear costs arising in connection with supplementary performance only insofar as such costs relate to individual cases and in particular to the extent to which such costs are appropriate to the purchase price of the goods. We shall not bear any costs arising as a result of transportation of goods sold to any location other than the domicile of the Customer insofar as such a transportation was not in accordance with the contractually agreed use of the goods. The Customer shall have no recourse to make a claim for defects to goods insofar as the
Customer does not afford us the opportunity to ascertain such defects, in particular by not making the goods forming the object of the complaint or samples of such goods available to us on request. Further claims are excluded pursuant to the present § 5. This shall particularly apply in respect of claims relating to compensation for damages which have not occurred in the goods themselves (consequential loss). Properly delivered goods shall only be taken back by the Seller in exceptional circumstances, without acknowledgment of legal obligation, only within the bounds of possibility and only if such goods are in a proper condition and are not made to order. We shall in such circumstances be entitled to retain 25% of the value of the goods and a minimum amount of €50 in order to cover costs incurred.
§ 6 Limitation of liability and limitation of claims
Our liability for breach of contractual or extra-contractual obligations, in particular in respect of impossibility of delivery, delay, breach of duties prior to the contract and tortuous acts and including our responsibility for our managerial staff and other vicarious agents, shall be restricted to damages caused by wrongful intent or by our gross negligence and shall not exceed the foreseeable damages characteristic for the type of contract at the time when the contract was concluded. The aforesaid restrictions shall not apply to such cases where we are in culpable breach of material contractual obligations insofar as such a breach of contract endangers the contractual purpose. The aforesaid restrictions shall further not affect our statutory liability pursuant to the German Product Liability Act, nor shall such restrictions apply to damage to life, limb or to health or to any cases where we have deliberately and wilfully concealed defects of the goods or guaranteed the absence of such defects. This shall be without prejudice to any statutory rules regarding the burden of proof. Insofar as nothing to the contrary has been agreed, all contractual claims the Customer may assert against us for cause or which may arise in connection with the delivery of the goods shall lapse one year after the delivery of the goods. The above deadline shall also apply to such goods as have been used for construction works in accordance with their usual purpose and which have caused defects in said construction works insofar as such a use has been agreed in writing. This shall be without prejudice to our liability arising from intentional and grossly negligent breaches of contract and without prejudice to the lapsing of statutory rights of recourse. The period of limitation does not recommence in cases of subsequent performance. Our invoices shall fall due for payment within 30 days of date of invoice (payment deadline). The Customer shall be deemed to be in default of payment no later than 10 days after our claim falls due. No reminder shall be required in this regard. Deductions for cash discounts are not permitted.
§ 7 Payment and default
The Customer shall not be entitled to retain or set off payments in circumstances where counterclaims are disputed by us or not established in law. In the event that the deadline for payment is exceeded, we shall be entitled, from the time at which the Customer is in default, to
charge interest in the amount of the relevant bank overdraft rates. The minimum interest payable shall be in the amount of 8% above base rate and 5% above base rate in the case of Customers who are not Registered Traders under German Law. This shall be without prejudice to the right to assert further claims for damages caused by a delay in payment.
§ 8 Retention of title
Goods delivered shall remain the property of the Seller until such time as full payment has been made of all the Seller’s claims. The Customer shall be entitled to resell and process goods subject to retention of title insofar as such resale and processing forms part of the Customer’s ordinary course of business. Notwithstanding this, such resale shall only be permissible if the Seller’s retention of title is maintained and secured by the Customer. The Customer shall be prohibited from pledging goods subject to retention of title or offering goods subject to retention of title as collateral. Customers shall with immediate effect transfer to the Seller as collateral any rights resulting from resale of goods subject to retention of title to the full amount of the claim of the Seller and shall notify their own customers on a case-by-case basis of such an existing assignment to the Seller. The Seller hereby accepts assignment of such rights. Notwithstanding such an assignment, Customers shall be entitled to collect claims thus assigned from their own customers to the extent that they fulfil their obligations to the Seller and do not suffer deterioration of assets. In the event that the value of existing collateral for the Seller exceeds the amount of the claims due to the Seller by more than 20%, the Seller shall, at the request and discretion of the Customer, be required to release collateral to such an extent. The Customer shall be required to notify the Seller without delay of all circumstances arising in connection with goods subject to retention of title. Such circumstances include onward sale and assignment of claims, combination, mixing, collection of claims assigned, possible enforcement claims asserted by third parties in respect of the goods and superseding claims. In the case of combining, mixing or processing of goods subject to retention of title with other goods which do not belong to the Seller, the Seller shall acquire a co-ownership right in a new product thus created. In the event that the Customer acquires sole ownership of the new product created, the contractual parties agree that the Customer shall accord the Seller a co-ownership right in the new product in the ratio of the value of goods subject to retention of title contained within said new product created. In the event that goods subject to retention of title are resold together with other goods regardless of any combining, mixing or processing of goods, the prior assignment of rights hereinabove agreed shall only apply to the amount of the total claims of the Seller. In the event of enforcement measures undertaken by third parties in respect of goods subject to retention of title or superseding claims, the Customer shall be required to provide the Seller free of charge with the documentation and information necessary to pursue the Seller’s rights. In the case of any jeopardy to the rights of the Seller, the Customer shall be required on request to return to the Seller the goods subject to retention of title. The Customer shall, however, only be required to return such goods to the amount of the total claims of the Seller still outstanding.
§ 9 Place of fulfilment, place of jurisdiction, applicable law
In the case of orders and deliveries which take place between the Seller and foreign Customers within the scope of the present General Terms and Conditions, the parties agree that all business relations regardless of the legal basis of such relations shall be governed by the Law of the Federal Republic of Germany. The Uniform Law on the Formation of Contracts for the International Sale of Goods and/or other such international treaties are excluded. Such an exclusion shall also apply in the case of Customers from countries which are party to such a treaty. The contractual language governing our business relations shall be German. Place of fulfilment in respect of all claims arising as a result of the present Agreement shall be the location of the Registered Office of the Seller. Place of jurisdiction in respect of all disputes arising from the present contractual relations or all disputes existing with regard to the instigation and effectiveness of said contractual relations (including actions relating to bills of exchange or cheques) shall be the location of the Registered Office of the Seller insofar as the contractual partner is a Registered Trader under German law, a legal entity under German Public Law or a special fund as defined by German Public Law.
§ 10 Severability clause
In the event that one of the provisions within the present General Terms and Conditions shall be null and void for any reason, this shall be without prejudice to the validity of the other provisions herein contained. Such an invalid clause shall be replaced by a provision that most closely reflects the intention pursued by the parties.