General Conditions of Sale and Supply
1.1 The following General Conditions of Sale and Supply shall govern exclusively the contract for the sale and supply of the goods specified overleaf (the “Goods”) by the Seller to the Buyer (the “Contract”). Contrary or different conditions of the Buyer shall be applicable only if and insofar as the Seller expressly consents to them in writing. The Seller’s mere silence with respect to amendments proposed by the Buyer shall not be construed as acknowledgement or consent. The Seller hereby expressly objects to all of the Buyer’s amendments.
2.1 The obligation of the Seller to deliver the Goods by the time or within the period stipulated on the face of the Contract shall be subject to the availability of necessary space on a vessel, aircraft, truck, railway or other means of transportation agreed by the parties hereunder.
2.2 If the Contract is based on F.O.B., F.A.S. or any other terms under which the Buyer is required to secure necessary vessel space, the Buyer shall do so on the basis of berth terms. In case the Buyer shall contract for the carriage of the Goods, the Buyer shall give the Seller due delivery instructions within a reasonable time prior to delivery, so as to enable the Seller to have the Goods ready for delivery. Failure of the Buyer to give such instructions in time is a breach of the Contract and the Seller, for the account and at the risk of the Buyer, may, at its discretion either:
(i) contract for the carriage of the Goods and make delivery;(ii) arrange for the storage and/or dispose of the Goods; or
(iii) terminate the Contract or any part thereof,
without prejudice to any other rights and remedies the Seller may have.
2.3 In case of delivery in instalments, any delay or failure in delivery of one lot shall not be deemed a breach of the Contract giving rise to a right of the Buyer to cancel the Contract or refuse to accept the performance with respect to the other lots unless the partial performance is of no interest for the buyer.
2.4 The risk of loss of the Goods shall pass to the Buyer when the Seller delivers the Goods to a carrier, provided that if such a trade term as contained in the Incoterms of the latest edition (the “Incoterms”) is used on the face of the Contract in connection with the delivery terms, the risk of loss of the Goods shall pass in accordance with the provisions of the Incoterms.
2.5. For the purpose of these General Conditions of Sale and Supply, the term “delivery” or “deliver” shall mean “shipment” or “ship”, in case the Contract is based on F.O.B., C.F.R. or C.I.F.
2.6 Early deliveries are permitted under the Contract unless they are carried out at unreasonable times.
2.7 In the event of delay in delivery, including, but without limitation to, any deviation in the quantity of the Goods delivered, the Buyer shall set a reasonable extension period upon expiry of which the Buyer may terminate the contract partly or entirely. Damages instead of performance of the contract is only available to the Buyer within the limits set out in Clause 9 below.
3.1 If payment for the Goods is to be made by letter of credit, the Buyer shall, unless otherwise specified, establish in favour of the Seller an irrevocable letter of credit on terms satisfactory to the Seller negotiable on sight, drafted by a bank of international repute, which shall be received by the Seller immediately after conclusion of the Contract. The letter of credit must be valid for at least 15 days after the latest time of delivery. If the letter of credit is dishonoured, then the Buyer shall pay the Seller immediately and unconditionally.
3.2 If the Buyer fails to pay the invoice on its due date, the Seller may charge interest at a rate of 3% over and above the London Interbank Offered Rate for deposits in the currency in which the unpaid amount is denominated for such period as the Seller may from time to time determine (the “Libor”). The Libor shall be the rate quoted by a prime bank in London to be chosen by the Seller. The Seller reserves the right to claim damages or compensation of wasted expenditure in excess of this.
3.3 The Buyer shall pay the price specified on the face of the Contract without set-off unless the claim is indisputable or recognized by a res judicata judgement. Counterclaims, recoupments or other similar rights which the Buyer may have against the Seller, which rights shall be exercised in separate proceedings between the Buyer and the Seller.
3.4 If the payment terms are not met or if the Seller becomes aware of circumstances which, in accordance with the Seller’s reasonable commercial judgement, gives rise to doubts as to the creditworthiness of the Buyer, then the Seller shall be entitled, without prejudice to any other statutory rights which he may have, to stop the delivery of the Goods and/or to demand reasonable advance payment or security for undelivered Goods and to cancel the Contract or claim damages instead of performance, if the Buyer fails to furnish the security within a reasonable time period.
3.5 The Seller is entitled to declare a set-off even if the claims to be set off are in foreign currencies. In such event the applicable rate shall be the mid-point exchange rate as officially fixed on the Currency Exchange in Frankfurt on the day set-off is declared, or on the currency exchange of a system succeeding this one.
4. INCREASED COST
Any new, additional or increased freight rates, surcharges (bunker, currency, congestion or other surcharges), taxes, customs duties, export or import surcharges or other governmental charges, or insurance premiums, which may be incurred by the Seller with respect to the Goods after the conclusion of the Contract, shall be for the account of the Buyer and shall be reimbursed to the Seller by the Buyer within a reasonable time on demand.
5. TAXES AND DUTIES
All taxes, duties, costs and charges arising in connection with the Seller’s deliveries or performance and levied under the laws of the national or local government or agency of the country designated under the Contract or of the country of the Buyer’s registered office, shall be borne and paid by the Buyer. This includes, but is not limited to, import duties and freight surcharges.
6. Defects and Warranty
6.1 Unless expressly stipulated on the face of the contract, the Seller makes no guarantee, expressly or impliedly, as to the quality of the goods (“Beschaffenheitsgarantie”). Any samples provided deemed viewing specimen without commitment. The quality characteristics (Beschaffenheit) of samples shall not be deemed guaranteed. If any warranty exists, the Seller’s liability shall be limited to replacement or repair of the defective Goods or to refund of the price of the Goods, at the Seller’s option.
6.2 The Buyer or the consignee designated by the Buyer must upon receipt inspect the Goods without undue delay. Apparent defects – including the absence of a guaranteed quality (Fehlen einer garantierten Beschaffenheit) – must be notified to the Seller in writing without undue delay, in any event at the latest within 14 days of such receipt. The shipment will be deemed approved if the Buyer neglects the notice of defects in due form and time. Latent defects must be notified without undue delay after they have been detected and in any event within three month after delivery. For the timeliness of the notice of defects it is crucial when the Seller receives it.
6.3 Upon discovery of a defect by the Buyer any further processing or manufacturing or other use of the Goods must be stopped and the Seller must be given the opportunity to inspect and check the notified defect. If the complaint because of defects are justified and in due time the Seller shall, at his option, remedy the defect by way of either repair or replace the goods concerned. The Seller is entitled to refuse the remedy of the defect in line with the requirements of the law. If the Seller refuses the remedy of the defect, if the remedial action is not successful or if the remedial action is unreasonable for the Buyer, the Buyer is entitled to withdraw from the contract or reduce the purchase price according to the stipulation of the following section.The Buyer is only entitled to withdraw from the contract – unless the cancellation of the contract is excluded by law – or reduce the purchase price after a reasonable respite period has expired unless such period is not required by law (§ 323 sec. 2, § 440, § 441 sec. 1 BGB). In case of a rescission of contract, the Buyer shall be liable for any deterioration, destruction or loss of benefits based upon any disregard by Customer of its due and proper care as well as any other circumstances for which Customer is responsible.
6.4 Any warranty claims shall become statute-barred not later than one year, this provision shall not apply to any goods which, according to their usual purpose, have been used for a building as well as to a defect which results from a third party`s right in rem which entitles the third party to demand the return of the product.
6.5 Any claims against the Seller based upon malicious concealment of a defect or upon an express guarantee as to the good`s quality (Übernahme einer Beschaffenheitsgarantie) at the time of delivery in the meaning of § 444 BGB shall be exclusively subject to the statutory provisions.
6.6 Where the Goods are supplied with any warnings, labels, instructions, stickers, manuals or other information (together referred to as “Instructions”) whether printed or otherwise appearing on or affixed to the Goods (or any part thereof) or any packaging in which Goods are supplied separately with the goods and whether in the form of writing, pictures or otherwise supplied separately with the Goods and whether in the form of writing, , drawings, diagrams, carriage, tolerances or other treatment of the Goods, the Buyer shall ensure that all such Instructions are not lost or damaged in any way while the Goods are in its possession or under its control and that they are supplied with the Goods when the Buyer releases them from its possession or control.
6.7 Notwithstanding the generality of the foregoing, the Seller is not liable for any loss, damage or liability or any kind suffered by any third party caused by repairs or remedial work carried out without the Seller’s prior written approval. The Buyer shall indemnify the Seller against any loss, liability and cost arising out of such claims.
6.8 Any further claims by the Buyer, in particular claims due to or in connection with defects or for indirect or consequential damages resulting from defects including but not limited to loss of profit or goodwill, irrespective of their legal basis, shall only be permitted in accordance with the terms of Clause 9 below.
7. FORCE MAJEURE AND OTHER OBSTACLES / IMPORT AND EXPORT LICENCES
7.1 If the Seller is prevented from keeping to the delivery date or delivery period through unforeseen circumstances which are out of his control and which could not be prevented even when applying the care of an ordinary merchant (force majeure), the delivery date shall be postponed in accordance with the length and extent of such circumstances, as long as performance has not become possible in the meantime. The following are considered to be events of force majeure: strike, lockouts, government actions or intervention, shortage of energy and raw materials, shortage of transport capacity, other events causing obstruction of the Seller’s, manufacturers’ or suppliers’ operation, for example, fire, flood, damage to machinery and all other obstacles, which, considered objectively, have not been caused by any fault of the Seller. It is immaterial whether these circumstances occur at the Seller’s place of business or one of the ancillary manufacturers’ or suppliers’ places of business. In case of the eventual impossibility or inability to deliver the Goods as a result of such circumstances the Seller is freed from his obligation to perform.
7.2 Should the Seller be unable to obtain the necessary import or export licences as a result of an instruction from the authorities, the Seller may withdraw from the Contract even if he has committed to obtaining such import or export licences.
7.3 If, as a result of one of the events described in Clauses 7.1 or 7.2 above, the delivery is delayed by more than six (6) weeks, the Buyer is entitled to withdraw from the part of the Contract which has not been fulfilled. Should the Buyer beunable to produce an economically justifiable evaluation of the part of the Contract already fulfilled he shall have the right to rescind the Contract in full.
8. RETENTION OF TITLE
8.1 The Seller shall retain title to all Goods supplied by him (the “Reserved Goods”), until all the payments due under the Contract are made in full and until all the Seller’s claims resulting from any business relationship with the Buyer have been duly settled. This shall also apply with regard to a balance in the Seller’s favour, if any or all of the Seller’s claims have been included in a current account and the balance has been determined.
8.2 Any processing or manufacturing of the Reserved Goods carried out on behalf of the Buyer is deemed to be carried out by the Seller as manufacturer within the meaning of §950 BGB (German Civil Code) but without binding him. If the Reserved Goods are processed or combined together with other goods so that they are inseparable, then the Seller shall acquire joint ownership in the new product in proportions relating to the invoice value of the Reserved Goods and the value of the products processed or mixed with the Reserved Goods. If the Reserved Goods are combined with other moveable goods, to form a single product which becomes the principal product, or if the Seller loses ownership of the Goods in any other way, then the Buyer shall and hereby assigns to the Seller joint ownership in the new product or commodity in the same ratio as explained above. The Buyer shall retain custody or joint custody of the Goods/product at no cost to the Seller. Any joint ownership rights arising pursuant to the terms of this section shall be considered as Reserved Goods. During the Seller’s ownership or joint ownership of the Goods, the Buyer is under an obligation at all times upon the Seller’s request to furnish the Seller with all necessary information about the Goods.
8.3 The Buyer may sell Reserved Goods only in the ordinary course of business and shall not pledge or grant an equitable lien or other third party interest over the Reserved Goods until all the payments due under the Contract are made in full provided that the Buyer shall retain title to all Reserved Goods resold by it until all the payments due under the Contract for re-sale are made in full. The Buyer’s right to resell and to further process or manufacture the Reserved Goods shall cease automatically if the Buyer discontinues its payments or if the Buyer is in default with regard to any payments due to the Seller.
8.4 The Buyer hereby assigns to the Seller all rights and claims, including all security and ancillary rights, arising from or in connection with the sale of the Reserved Goods against end users or other third parties. The Buyer may not enter into any agreements with his customers, which exclude or prejudice the Seller’s rights in any way or which render the assignment of future rights and claims null and void. If the Reserved Goods are sold together with other goods and the value of the Reserved Goods cannot be determined separately on the invoice, then any claim against a third party out shall be considered as assigned to the Seller in the amount of the delivery price determined between the Seller and the Buyer. In the event of the sale of any goods in which the Seller holds joint ownership, then the claim on the resale funds shall be assigned to the Seller in the amount of the Seller’s joint ownership share.
8.5 The Buyer remains entitled to exercise the rights and claims assigned to the Seller until the Seller cancels this right, which the Seller is entitled to do at any time at his sole discretion. On the Seller’s request, the Buyer shall provide the Seller with all information and documentation necessary for the collection of the assigned rights and claims and shall give notice of the assignment to his customers, unless the Seller does so himself.
8.6 In the event of a breach of Contract by the Buyer, in particular in case of failure to make full payment, the Seller is entitled to reclaim all the Reserved Goods. The Buyer is also obliged to surrender the Goods without any further action by the Seller being required. Should the Seller retrieve the Goods this shall be considered as a withdrawal from the Contract only if the Seller expressly declares so in writing or if mandatory legal provisions provide so. The Buyer must inform the Seller without undue delay in writing of any and all seizures or any other actions by third parties against Reserved Goods or rights and claims assigned to the Seller.
8.7 Should the value of the security, to which the Seller is entitled under the foregoing provisions, exceed the secured claim by more than 10% in total, then the Seller, upon the request of the Buyer, shall at his discretion release such security to the extent of such excess.
8.8 To the extent that the foregoing provisions for retention of title are invalid under the laws of the state in which the Goods are located, then a similar/equivalent security to the Seller’s which is admissible under the laws of the state will be valid. The Buyer is under an obligation to take all steps necessary to establish and maintain such security.
9. LIABILITY FOR DAMAGES AND REIMBURSEMENT OF EXPENSES
9.1 With regard to any pre-contractual, contractual and non-contractual breach of duty – including without being limited to the delivery of a defective product, tort and producer`s liability – the Seller is liable for damages and reimbursement of expenses only in case of wrongful intent, gross negligence or of slight negligence of a substantial duty (duty which violation endangers the purpose of the contract). However the Seller`s liability – excluding the event of wrongful intent – shall be limited to the typical and foreseeable damage.
9.2 Upon the violation of substantial duties the liability for slight negligence shall be excluded, at least limited to the amount of the purchase price.
9.3 The exclusion and limitation of liability pursuant to the foregoing sec. 1 and 2 shall not be applicable in case of any guarantee of quality (Beschaffenheitsgarantie) in the meaning of § 444 BGB, in case of any malicious concealment of a defect,in case of any liability for injuries to a person`s life, body or health or in case of any liability under the Product Liabitlity Act (Produkthaftungsgesetz).
9.4 All claims for damages and reimbursement of expenses against the Seller, irrespective of their legal basis, shall become statute-barred one year from the delivery of the goods, in case of tortious liability from the discovery or grossly negligentignorance of the circumstances giving rise to the claim or the person liable to pay damages. This provision shall not apply in case of intent, in the cases specified in sec. 3 above and in case of a product which, according to its usual purpose,has been used for a building as well as in case of a defect which results from a third party`s right in rem which entitles the third party to demand the return of the product. Any shorter limitation periods provided by law shall prevail.
9.5 The provisions of this clause shall also apply in favour of the Seller`s legal representatives and employees.
9.6 If industrial property rights of third parties are violated by the delivery of Goods, the Seller shall only be liable to the extent set out in Clause 9.1 to 9.5.
9.7 If at any time it is alleged or, it is in the Seller’s reasonable opinion, likely to be alleged that the goods infringe the rights of any third party, the Seller may at its discretion and at its own expense:(a) so as to avoid the infringement of a law, modify or replace the goods in such a way which does not endanger the performance of the whole Contract; or (b) procure for the Buyer the right to continue to use the goods, or repurchase the goods at the price paid by the Buyer (less depreciation).
10. PLACE OF PERFORMANCE, JURISDICTION, APPLICABLE LAW
10.1 The place of performance for all contractual liabilities shall be the place of the registered offices of the Seller at Georg-Glock-Straße 08, 40474 Düsseldorf unless agreed otherwise in writing. The Buyer may, however, also be sued in all cases at the court of his domicile.
10.2 All and any legal relationship between the Buyer and the Seller shall exclusively be governed by German law. The trade terms herein used such as F.O.B., C.F.R. and C.I.F. shall be interpreted in accordance with the Incoterms. The uniform laws concerning contracts for international sales of goods according to the Hague Convention and the UN-Convention shall not be applicable.
11. INTELLECTUAL PROPERTY RIGHTS
Nothing herein contained shall be construed as transferring any patent, trademark, utility model, design, copyright, mask work or any other intellectual property rights in the Goods, all such rights being expressly reserved to the true and lawful owner.
12.1 In case there is any provision on the face of the Contract which prohibits or restricts the Buyer from or to doing certain acts (eg destination restriction clause), the Buyer shall ensure that its customers and users of the Goods will comply with such prohibition or restriction, provided that this provision shall not, in any way, be construed to diminish the Buyer’s obligation to comply with such prohibition or restriction.
12.2 The rights and remedies of the Seller hereunder are cumulative and in addition to the Seller’s rights, powers and remedies existing at law or in equity or otherwise.
12.3 The failure of the Seller at any time to require full performance by the Buyer of the terms hereof shall not affect the right of the Seller to enforce the same. The waiver by the Seller of any breach of any provision of the Contract shall not be construed as a waiver of any succeeding breach of such provision or waiver of the provision itself.
12.4 The Buyer shall not transfer or assign the Contract or any part thereof.
12.5 The Contract constitutes the entire agreement between the parties hereto and supersedes all prior or contemporaneous communications or agreements or undertakings with regard to the subject matter hereof. The Contract may not be modified or amended except by a written agreement of the parties hereto. This applies also to the exclusion of the written form.
12.6. In the event of any provision of these conditions or of any related stipulations being or becoming unenforceable, validity of the remaining part of the contract shall not be effected thereby. The parties hereto shall be obliged to replace the unenforceable provision by another equivalent provision, the commercial effect of which is as similar as possible to the original provision.
Data on the Seller’s customers and purchasers will be stored and processed by computers to the extent that this is necessary for proper handling of the contractual relationship.