As of August 2012
We sell exclusively in line with the following sales, delivery and payment terms. The purchasing conditions of the buyer are hereby expressly contradicted. Our general terms and conditions apply to the entire future business relationship, unless the buyer is not a merchant in the sense of the German Commercial Code (HGB).
§ 1 Conclusion of the contract
The offers of the seller are as a rule, free and non-binding. The delivery contract comes into force only upon our acceptance of the order of the buyer (order confirmation). Block orders (= call-off orders) require explicit agreement, as does re-scheduling. For goods purchased on demand, the longest deadline is five months, within which the goods must be accepted in full, unless expressly agreed otherwise. Amendments to the contract and verbal collateral agreements shall only be effective upon written confirmation. Fixed transactions require special agreement.
§ 2 Price
The prices are based on the cost structure on the day of the order confirmation. If a binding price agreement has been concluded, the seller can nevertheless correct the prices if four months have elapsed since the conclusion of the contract and subsequently the delivery or service are directly or indirectly affected by additional public charges, ancillary charges, freight charges or their increase or other legal measures or a change in the cost factors such as wages or material costs, on which the prices of the seller are based. This does not apply to services to a non-buyer. The prices are understood, unless otherwise agreed, from the warehouse of the seller. Packaging will be charged separately and will not be returnable. All prices quoted are exclusive of the statutory value-added tax (VAT) valid at the time of delivery, which is additionally calculated and reported.
§ 3 Tolerances
§ 3.1 Technical tolerances
The tolerances customary in steel construction shall apply to meet the technical characteristics of our products.
§ 3.2 Volume tolerances for special items
An order is deemed to be met by the seller if the delivery was executed with a volume tolerance of +/- 10% on the basis of the purchaser‘s order quantity.
§ 6 Limitation of Liability and Limitations
In the event of a violation of contractual and non-contractual obligations, in particular due to impossibility, delay, debt in the initiation of the contract and tort, we shall be liable – also for our executive employees and other vicarious agents – only in cases of intent and gross negligence limited to typical contractual damage foreseeable at the time of the contract conclusion. These limitations do not apply in case of culpable breach of essential contractual obligations insofar as the achievement of the contractual purpose is jeopardised, in cases of mandatory liability under the Product Liability Act, in case of injury to life, body or health and also not if and insofar as we fraudulently concealed material defects or guaranteed their absence. The rules on the burden of proof remain unaffected. Unless otherwise agreed upon, contractual claims which the buyer incurs against us on the occasion of or in connection with the delivery of the goods shall become statute-limited one year after delivery of the goods. This period shall also apply to goods which, according to their usual use, have been used for a structure and caused its defect, unless such use was agreed in writing. Our liability for intentional and grossly negligent breach of duty as well as the limitation of statutory recourse claims remain unaffected. In the event of subsequent performance, the limitation period shall not begin to run again. Our invoices are due within 30 days (payment target) after the date of invoice. The buyer is in default at the latest 10 days after the due date of our claim without a reminder. Cash discount deductions are not permitted.
§ 7 Payment and Delay
Any counterclaims which we dispute or which have not been legally established do not entitle the buyer to withhold or offset. If we exceed the payment target, at the latest after the delay, we are entitled to charge interest in the amount of the respective bank rates for overdraft credits, but at least interest rates of 8 percentage points above the base interest rate, and in the case of non-buyers in the amount of 5 percentage points above the base interest rate. We reserve the right to claim further damages.
§ 8 Retention of title
The goods delivered remain the property of the seller until full payment of all seller claims against the buyer. If goods belong to the buyer‘s normal business, the buyer is entitled to resell and process the reserved goods. Resale is, however, only permissible if the purchaser retains and protects the seller‘s retention of title. A pledging or safeguarding of the reserved goods by the buyer is not permissible. The purchaser shall demand the buyer‘s claim for the resale of the reserved goods up to the amount of the seller‘s total claim as collateral and shall inform its buyer of the assignment to the seller on a case-by-case basis. The seller accepts this assignment. Irrespective of the assignment, the buyer shall be entitled to collect the assigned receivables as long as he meets his obligations towards the seller and does not incur a financial loss. If the value of the security available for the seller exceeds all its claims by more than 10%, the seller is obliged, at the buyer‘s request, to release securities at his discretion. The buyer is obligated to inform the seller without delay about all circumstances in connection with the retention of title – resale and demand assignment, combination, mixing, processing, recovery of assigned claims, any enforcement measures of third parties in the goods or their claims, etc.. In the case of combining, mixing or processing the reserved goods with other goods not belonging to the seller, the seller shall be entitled to the resulting co-ownership share in the new item.
If the buyer acquires the sole ownership of the new item, the contracting parties agree that the buyer grants co-ownership to the seller in the proportion of the value of the reserved goods to the new item. If the reserved goods are resold together with other goods, whether with or without combination, mixing or processing, the above-agreed advance assignment shall only apply to the total claims of the seller. In the event of the enforcement measures of third parties in the reserved goods or their claims, the buyer undertakes to provide the seller with the documents and information necessary for the pursuit of his rights free of charge. The buyer undertakes to return the reserved goods if the supplier‘s rights are jeopardised, but only to the amount of the outstanding claims of the seller.
§ 9 Place of Performance, Jurisdiction, Applicable Law
For these terms of business, for orders and deliveries between the seller and foreign customers, it is agreed that the law of the Federal Republic of Germany applies to all business relations, irrespective of the legal foundation on which they are based. The uniform purchasing right (EKG) and / or other intergovernmental law shall also be excluded in the case of customers belonging to a contracting state. The contractual language for our business relations is German. The place of performance for all claims arising from this contract is the place of business of the seller. The jurisdiction for all disputes arising out of the contractual relationship as well as regarding its occurrence and its effectiveness (also for bills of exchange and checks) shall be the registered office of the vendor, insofar as the contractual partner is a registered trader, legal person of public law or public special fund.
§10 Severability clause
If one of these conditions is void for any reason, this does not affect the validity of the remaining conditions. The void clause is to be replaced by a provision which comes as close as possible to the parties‘ intention.
Axzion GKS Steel and Mechanical Engineering GmbH
40764 Langenfeld, Germany
Phone: +49 (0) 2173 208920