General Terms & Conditions of DRAMET Draht- und Metallbau GmbH
§1Scope of Application
A contract is brought about solely on the basis of DRAMET Draht- und Metallbau GmbH’s General Terms & Conditions of Sale, Delivery & Payment. Conflicting or divergent terms and conditions laid down by the buyer shall not be recognised, unlessDRAMET Draht- und Metallbau GmbH expressly approves same in writing. DRAMET Draht- und Metallbau GmbH’s terms of sale shall also apply even if a delivery is made to the buyer without reservation, despite awareness of the buyer’s conflicting or divergent terms of purchase. DRAMET Draht- und Metallbau’s General Terms & Conditions of Sale, Delivery & Payment shall also apply in future transactions done with the buyer, even if express reference to them is not made on concluding a contract at any future date.
§2 Contract Closure, Content
1. DRAMET Draht- und Metallbau GmbH’s offers for sale are without obligation. The buyer shall be bound for a period of 4 weeks by orders placed. The contract shall be brought about by means of the confirmation of order issued within said period by DRAMET Drahtund Metallbau GmbH, or a delivery made directly in response to the order placed. Confirmations of order issued online and/or via telefax shall be deemed to meet the requirement for written form. Verbal agreements and verbal alterations or additions to orders shall require express written confirmation from DRAMET Draht- und Metallbau GmbH in order to become effective in law. With the confirmation of order, DRAMET Draht- und Metallbau GmbH shall be entitled to notify the buyer about any differences from the order placed which the buyer may reasonably be expected to accept. Such differences shall become binding for both parties if the buyer does not object in writing to the content of the confirmation of order within 12 days of it being issued. In the event of any such objection, DRAMET Draht- und Metallbau GmbH shall be entitled to withdraw from the contract by sending a written statement to this effect within a further 12-day period, excluding the right to claim compensation.
2. Changes in connection with an effectively placed order are only permitted by mutual agreement.
3. Manufacturing customised items in accordance the customer’s specific instructions is only possible if at least 50 units are ordered and on transferral of the development costs. The buyer shall be notified about the development costs before confirmation of order is issued pursuant to § 2 No. 1 above. A contract shall then only be brought about provided the buyer confirms coverage of the development costs.
4. DRAMET Draht- und Metallbau GmbH is entitled to immediately withdraw from all or part of the contract:
– if force majeure (natural disaster, civil unrest, war, government measures, transport disruption, strikes, lockouts, breakdowns) prevents implementation of the contract over a longer term;
– if DRAMET Draht- und Metallbau GmbH does not receive deliveries from its own suppliers through no fault of its own;
– if a petition is filed for insolvency proceedings to be instituted against the buyer’s assets or for similar procedure to be
conducted under local law.
§3 Place of Performance
1. Place of performance shall be the registered location of DRAMET Draht- und Metallbau GmbH’s depot. The goods shall be supplied and dispatched from the depot at the buyer’s expense. This shall also include transport insurance which shall be effected by DRAMET Draht- und Metallbau GmbH for the buyer’s account. DRAMET Draht- und Metallbau GmbH shall be entitled to specify to the buyer some location other than the agreed place of performance (place of delivery). On opting for a foreign place of performance, the provisions laid down in § 14 and § 15 below (Governing Law,Place of Jurisdiction) shall still apply.
2. DRAMET Draht- und Metallbau GmbH shall be entitled to make part-deliveries and to invoice same separately.
3.The goods shall be properly packed byDRAMET Draht- und Metallbau GmbH at the buyer’s expense.
4. For deliveries made abroad, Incoterms (EXW) as revised and in forc e at the time shall apply in addition.
§4 Delivery Period
1. Observance of agreed delivery periods shall be contingent on all the permits and approvals that are required – in particular plan releases – and all the documents to be provided by the buyer being received in good time, and on compliance by the buyer with the agreed terms of payment. If these requirements are not met in good time, the periods shall be extended reasonably, unless DRAMET Draht- und Metallbau GmbH is responsible for the delays.
2. For determining whether a delivery is punctual, the decisive date shall be that on which the goods are handed over to the contracted forwarder. If acceptance of the goods is not effected to schedule through some fault on the buyer’s part, DRAMET Draht- und Metallbau GmbH after allowing an extra 10-day period of grace shall be entitled – at its own option –either to cancel the period allowed for payment and demand immediate payment of the purchase price (backorder invoice), or to withdraw from the contract and demand compensation for non-performance.
3. Agreed delivery periods shall be reasonably extended in the event of force majeure, labour disputes or other operational disruptions beyond DRAMET Draht- und Metallbau GmbH’s control or if supplies of vital primary materials are delayed, provided the hold-up lasts for more than one week. The delivery period shall be extended by the duration of the hold-up, but by not more than 5 weeks plus a subsequent delivery date. DRAMET Draht- und Metallbau shall be under obligation to immediately notify the buyer about the reason for the hold-up as soon as it becomes apparent that the agreed delivery periods cannot be adhered to. If a hold-up lasts for more than General Terms & Conditions of DRAMET Draht- und Metallbau GmbH 5 weeks, both parties shall be entitled to withdraw from the contract. However, the buyer must give at least 2 weeks’ advance written notice if it intends to exercise its right of withdrawal.
§5Extension of the Delivery Period, Default Damages
1. On expiry of the agreed delivery period, it shall be extended by 12 days without further notice. On expiry of this extra delivery period, the buyer shall be entitled to issue DRAMET Draht- und Metallbau GmbH with a written notice setting a 4-week deadline for performance. On expiry of this deadline, the buyer shall be entitled to withdraw from the contract provided it threatened to do so on setting the deadline. If no statement to this effect was issued on setting the deadline, and if the buyer fails to state on request during the extra delivery period whether it insists on contractual performance,then on expiry of the deadline DRAMET Draht- und Metallbau GmbH shall at its own option be released from its obligation to deliver.
2. No fixed-date deliveriesare made.
3. DRAMET Draht- und Metallbau GmbH shall only be liable for losses alleged by the buyer in the event of late delivery, including claims for wasted expenses pursuant to German Civil Code § 284, if late delivery has been brought about deliberately orcaused by gross negligence. This limitation of liability shall not apply to mortal injury, physical harm or health hazard, or in the event of any breach of legally binding warranties, orfraudulent conduct or gross negligence. Other than this, compensation claims in the event of a breach of cardinal duty shall be limited to predictable losses typical for the type of contract, and in instances of slight negligence to 50% of the predictable losses, unless DRAMET Draht- und Metallbau GmbH is warned on placement of the order that there is a possibility of greater losses occurring.
§6 Obligation to Accept Performance
If the buyer does not accept the goods, announces prior to delivery that it will refuse acceptance, or returns delivered goods without justification, or if DRAMET Draht- und Metallbau GmbH is entitled to refuseto make deliveries in accordance with § 11 below, then DRAMET Draht- und Metallbau GmbH shall have the right to demand contractual performance from the buyer setting a 12-day deadline. The buyer shall bear the costs for storage, insurance and other security measures which are incurred due to late acceptance of the goods. DRAMET Draht und Metallbau GmbH shall be entitled to charge these costs at a flat-rate of 0.5% of the value of the order for each week of default, but not exceeding 5% of the value of the order in total. On expiry of the deadline, DRAMET Draht- und Metallbau GmbH shall be entitled to otherwise dispose over the goods and – at its own option – to either charge for the losses sustained at a flat-rate of 33% of the agreed purchase price, or claim the actual documented loss in proceeds. The buyer shall be entitled to prove that the losses incurred are in fact lower.
§7 Inspection for Defects
The buyer shall be under obligation to immediately inspect the goods on receipt and to report any defects – which shall also includesupplies of goods that differ from the order placed – within a preclusive period of 7 days of receipt of the goods. For concealed defects, the period allowed shall commence on the date on which they are discovered. DRAMET Draht- und Metallbau GmbH’s sales representatives are not authorised to accept complaints about defects. After expiry of the period allowed, complaints – also via recourse pursuant to German Civil Code § 478 – are excluded. The same shall apply if the goods delivered have been modified by the buyer.
§8 Liability for Defects
1. Small differences in quality, weights or measurements to the extent which is normal in commercial business or cannot be avoided technically shall not count as defects. Public utterances, recommendations or advertising by the manufacturer shall not be deemed an agreement on characteristics.
2. In case of justified complaints and if the buyer has proved that it has performed its obligations pursuant to German Commercial Code § 377, DRAMET Draht- und Metallbau GmbH shall have the right to rework or replace the item, at its own option. DRAMET Draht- und Metallbau GmbH shall be allowed a period of 2 months as from the date on which the defective purchased item is returned to remedy the defect. In the event of a complaint, the buyer’s warranty rights shall lapse if it does not put the item at DRAMET Drahtund Metallbau GmbH’s disposal within 10 days, despite an express request to do so. If the remedy fails, the buyer shall be entitled either to withdraw from the contract or to reduce the purchase price, whereby this shall be restricted to the goods at the centre of the complaint.
3. The right to claim for material defects shall not apply for natural wear and tear to the purchased item or for damage that results after the passing of risk from wrong or poor handling, excessive strain or unsuitable operating materials, or that occurs due to particular external circumstances for which no provision is made in the contract. If inappropriate modifications or repairs are made by the buyer or by third parties, the right to claim for material defects shall likewise not apply for them or for any resulting consequences. The following acts shall also result in warranty rights and liability claims being excluded:
– using the purchased item other than for its designated purpose;
– incorrect installation, commissioning, operation or maintenance of the purchased item;
– failure to heed the instructions in the operating manual on transportation, storage, installation, commissioning, operation and maintenance;
– unauthorised structural alterations;
– effects of force majeure.
4. If it emerges that a complaint about a defect lacks foundation, the buyer shall be under obligation to reimburse DRAMET Draht und Metallbau GmbH for the expenditures incurred by the review (transport costs, inspection costs, etc.).
5. If the buyer has installed the defective item in another item in keeping with its type and purpose or has attached it to another item, DRAMET Draht und Metallbau GmbH shall, in addition to its liability for the defective purchased item, be entitled to refer the buyer to the expense reimbursement provisions of German Civil Code § 439 (3). The seller shall only rework the defective item if the contracting parties agree thereto. The expenses defined by German Civil Code § 439 (3) do not include costs incurred by the partial or complete destruction of parts not belonging to the delivered item in the course of installation and removal, unless the seller is proven to have
shown wilful misconduct or gross negligence.
6. If a repair is impracticable, DRAMET Draht und Metallbau GmbH shall be entitled to refuse the remedy or type of remedy as well as the resulting claim to expense reimbursement in accordance with German Civil Code § 439 (4).
7. If transport, travel, labour and material costs increase because the purchased item has been brought to a place other than the contractual destination, the resulting increases in expenses shall not be borne by DRAMET Draht und Metallbau GmbH.
8. Warranty rights shall not apply to wearing parts.
9. The warranty period for new products is 1 year as from the date of passing of risk. This period is a limitation period and also applies to claims for damages which have not been sustained by the delivered item itself; provided that any liability according to para. 4 is to be assumed at all in this respect. The statutory limitation provisions shall apply to claims in respect of torts or malicious intent alleged against DRAMET Draht und Metallbau GmbH. Warranties for used or regenerated purchased items shall only exist where agreed on a case-by-case basis; absent such an agreement, warranties shall be excluded. If longer warranty periods are laid down by law, e.g. in German Civil Code § 438, then such longer periods shall apply.
10. Where complaints are justified, the buyer may only withhold payments for an amount reasonably proportionate to the actual defects and the costs required to repair them. If additional payment obligations are not met,
– DRAMET Draht und Metallbau GmbH shall be entitled to refuse remedying the defects until the amount duly owed has been paid;
– the right to recourse pursuant to German Civil Code § 478 shall be excluded.
§9 Limitation of Liability
If the remedy performed by DRAMET Draht und Metallbau GmbH fails, the buyer shall be barred from asserting any further claims beyond the rights set out in German Civil Code § 437 (2) and (3), regardless of the legal grounds, including for torts. DRAMET Drahtund Metallbau GmbH shall not be held liable for any damage that is not caused to the delivered item itself, or for lost profit or for any other financial losses on the buyer’s part. Insofar as DRAMET Draht- und Metallbau GmbH’s liability is excluded or limited, this shall also apply to the personal liability of the directors, officers, employees, worker representatives and agents of DRAMET Draht- und Metallbau GmbH. The release from liability shall not apply in the event of mortal injury, physical harm or health hazard, if damage is caused deliberately or due to gross negligence, if DRAMET Draht- und Metallbau GmbH has assumed a guarantee for the goods’ quality or if DRAMET Draht- und Metallbau GmbH can be accused of fraudulent conduct. It shall also not apply to claims pursuant to Product Liability Act § 1 and § 4. If DRAMET Draht- und Metallbau GmbH commits a negligent breach of a material obligation or another cardinal duty, its liability to pay compensation shall be limited to the predictable losses typical for the type of contract, and in instances of slight negligence to 50% of the predictable losses.
§ 10 Payment
1. The invoice is issued on the date on which the goods are delivered or put ready for collection. Invoices are payable net cash within 14 days.
2. If DRAMET Draht- und Metallbau GmbH quotes prices in foreign currency, they shall not be affected by fluctuations in the official exchange rate published for converting the Euro into such foreign currency. Payment must be made in the foreign currency totalling the invoiced amount. Bills and cheques will be accepted as conditional payment only.
3. For bank transfers, it shall be that on which the amount is credited to DRAMET Draht- und Metallbau GmbH’s account.
4. Payments shall always be offset against the oldest receivables plus the default interest accrued thereon.
5. Statutory value-added tax is not included in the prices quoted by DRAMET Draht- und Metallbau GmbH. It is indicated separately on the invoice, applying the statutory rate in force on the date of invoice.
6. If the contract is for customised items manufactured in accordance with the customer’s specific instructions (§ 2 No. 3 above),DRAMET Draht- und Metallbau GmbH shall have the right to demand advance payment of two-thirds of the purchase price.DRAMET Draht- und Metallbau GmbH shall not be obliged to commence production until three weeks afterreceipt of the advance payment. Delivery periods and subsequent delivery deadlines pursuant to § 4 and § 5 above shall be extended accordingly.
7. For foreign transactions, the purchase price must be paid in advance before the goods are delivered / put ready for collection.
§ 11 Default in Payment
1. In the event of default in payment, DRAMET Draht- und Metallbau GmbH shall be entitled to demand default interest at a rate of 9% over and above the base rate, or any bigger loss caused by default for which evidence is furnished.
2. If the buyer defaults in payment by exceeding the period allowed for payment, DRAMET Draht- und Metallbau GmbH shall also be
entitled to the following rights:
a) DRAMET Draht- und Metallbau GmbH shall be entitled to refuse to make any further deliveries under on-going contracts. Without notice, delivery periods for on-going contracts which have not yet been carried out shall be suspended with retroactive effect for the duration of the period between the date on which default occurs and the date on which full payment is received.
b) For outstanding deliveries under all on-going contracts, DRAMET Draht- und Metallbau GmbH shall be entitled to cancel the period allowed for payment and demand immediate payment before effecting delivery.
c) DRAMET Draht- und Metallbau GmbH may exercise the rights agreed in § 13 below (Reservation of Title by Way of Security)and/or fully or partly withdraw from all the existing contracts.
3. DRAMET Draht- und Metallbau GmbH shall be entitled to the same rights if any substantial deterioration in the buyer’s financial circumstances occurs (e.g. if it discontinues making payments elsewhere, if a petition in insolvency is filed, if forced execution is levied, in the event of any bill or cheque protest, if the business closes down).
4. In the event of default in payment, the buyer must bear the costs and fees incurred on DRAMET Draht- und Metallbau GmbH. Moreover, the buyer must pay all the costs which are incurred on DRAMET Draht- und Metallbau GmbH for appointing a German or foreign lawyer, including a communicating lawyer.
§ 12 Setoff, Retention
The buyer may only offset counterclaims which are undisputed or have been declared res judicata. The same applies to the right of retention if the buyer is a registered trader. If that is not the case, right of retention may only be asserted provided the counterclaim has arisen under the same contractual agreement.
§ 13 Reservation of Title by Way of Security
1. The goods shall remain the property of DRAMET Draht- und Metallbau GmbH until such time as all trade accounts receivable under the entire business relationship have been paid, including secondary claims, claims to compensation and the cashing of bills and cheques. This reservation of title shall still remain in place if individual receivables are entered in a current account and the balance is drawn and acknowledged.
2. Any processing or combining that is done by the buyer shall be on DRAMET Draht- und Metallbau GmbH’s behalf, without creating any obligation for DRAMET Draht- und Metallbau GmbH. If the reserved goods are processed, utilised or combined with other goods which do not belong to DRAMET Draht- und Metallbau GmbH, DRAMET Draht- und Metallbau GmbH shall be entitled to a co-ownership share in the new item which corresponds to the invoiced value of the reserved goodsin proportion to the other processed goods at the time of processing, utilisation or combination. The contracting parties agree that, in the event of the buyer acquiring sole title to the new item, the buyer shall grant DRAMET Draht- und Metallbau GmbH a co-ownership share in said new item in proportion to the invoiced value of the reserved goods that have been processed, combined or mixed, and that it shall keep the new item for DRAMET Draht- und Metallbau GmbH free of charge.
3. The buyer is entitled to re-sell the goods in the normal course of business. However, it already here and now assigns to DRAMET Draht- und Metallbau GmbH its receivables together with any secondary claims which are created on re-selling the reserved goods. DRAMET Draht- und Metallbau GmbH accepts this assignment. The buyer shall remain authorised to collect the assigned receivables.
4. The buyer is not entitled to use the reserved goods in connection with global assignments to financing institutes or similar institutions,or to pledge or assign them by way of security in any other manner. In the event of any attachment or other interference by third parties, the buyer must immediately notify DRAMET Draht- und Metallbau GmbH in writing so that the latter can assert its rights in accordance with Code of Civil Procedure § 771. If the third party is unable to refund toDRAMET Draht- und Metallbau GmbH the costs incurredboth in and out of court for taking legal action pursuant to Code of Civil Procedure § 771, the buyer shall be liable for any losses thus incurred.
5. If the buyer acts in breach of contract, in particular if it defaults in payment, DRAMET Draht- und Metallbau GmbH shall be entitled to withdraw from the contract and take back the purchased item. The buyer already here and now agrees to this. After taking back the purchased item, DRAMET Draht- und Metallbau GmbH shall be entitled to turn same to account, whereby the losses incurred may be charged in accordance with the provision laid down in § 6 above.
6. If the value of DRAMET Draht- und Metallbau GmbH’s security exceeds actual receivables by more than 20%, DRAMET Draht- und Metallbau GmbH shall at the buyer’s request release the excess security at its own discretion.
§ 14 Governing Law
1. It is agreed that all transactions shall be governed by German law, expressly excluding CISG.
2. If goods are exported, DRAMET Draht und Metallbau GmbH shall be responsible for compliance with all the applicable German regulations.Compliance with and implementation of relevant foreign trade regulations (e.g. import licenses, foreign currency transfer permits, etc.) and any legislation in force outside Germany, including that of the country of destination, shall be the buyer’s responsibility.
§ 15 Place of Jurisdiction
If the buyer is a registered trader, it is agreed that the courts having local jurisdiction at the registered domicile of DRAMET Draht- und Metallbau GmbH (Neuwied Local Court, Coblenz District Court) shall be place of jurisdiction, also for litigation involving bills and cheques. However, DRAMET Draht- und Metallbau GmbH shall be e ntitled to also sue the buyer at the latter’s place of business.
§ 16 Severability, Ancillary Agreements
1. If any of the provisions of this contractual agreement are entirely or partly invalid or lose their validity at any later date, this shall not affect the validity of the remaining provisions. This shall also apply if any omission in the contractual provisions emerges. In lieu of the ineffective or impracticable provision or to bridge the gap, a clause shall apply which is legally admissible and best reflects the ineffective or impracticable provision from a business point of view, or which in the event of an omission takes into account what the contracting parties – in the light of the meaning and purpose of the contractual agreement – would have wanted, had they considered the point at the time of contract closure or on including a provision at some later date.
2. Ancillary agreements with persons whose authority to represent DRAMET Draht- und Metallbau GmbH is not documented in the commercial register shall benull and void, unless expressly confirmed by DRAMET Draht- und Metallbau GmbH in writing.
3. Verbal ancillary agreements are ineffective.