General Terms and Conditions for Sales and Delivery
Asil Celik Deutschland GmbH
1. Subject matter, scope
1.1 Our sales, services and offers to natural or legal persons who are not consumers within the meaning of § 13 BGB (German Civil Code) are exclusively made on the basis of the present General Terms and Conditions for Sales and Delivery. This applies also to contracts for work and services, the delivery of non-fungible goods and all future transactions. In case of drop shipments the conditions of the price list of the designated supplier shall apply additionally.
1.2 By accepting an offer, placing an order, receiving a confirmation of order or accepting a service, even when it is subject to reservation, the customer acknowledges that our General Terms and Conditions for Sales and Delivery shall apply to the entire business relationship. The present Terms and Conditions shall also apply if we have provided delivery and service without reservation to the customer well knowing that there are conditions of the customer which are contrary to or deviate from our General Terms and Conditions for Sales and Delivery. If, as an exception, the conditions of purchase had been agreed in writing, our General Terms and Conditions for Sales and Delivery shall apply additionally.
2. Offer, conclusion of contract
2.1 Our offers are subject to change and not binding.
2.2 The order of a customer shall be considered a binding offer to enter into a contract. Unless otherwise agreed in writing , the contract shall be considered concluded if we have confirmed the order in writing within 2 weeks after its receipt. Silence after receipt of an offer or order shall not be deemed to be acceptance of such offer or order. Subject matter of the contract are apart from the ordered object of purchase and/or service all other technical and commercial terms as resulting from the content of the written order confirmation, including additional written agreements. The present General Terms and Conditions for Sales and Delivery are an integral part of each contract.
2.3 Orders, declarations of acceptance, release orders as well as their modifications and amendments must be confirmed by us in writing to become effective.
2.4 Oral agreements, commitments, warranties and guaranties made or given by our staff members in connection with the conclusion of the contract, including subsequent changes of our General Terms and Conditions for Sales and Delivery, must be confirmed by us in writing to become effective.
2.5 The written form requirement is also deemed to be complied with, if communications are sent by remote data transmission within the meaning of §§ 126a, 127 BGB or in the case of a photocopy of an original signed by and remaining with us. The written form is not required for fully computer processed order confirmations which are expressly marked as such.
3. Scope of supply, place of performance
3.1 The customer is only entitled to demand the supply of goods manufactured in our Group and services provided by us. We reserve the right to use third parties to carry out the deliveries or to provide the services owed by us.
3.2 Place of performance for our delivery obligation shall be the location of the supplier's plant or the warehouse, and for the customer's obligation to pay the place of the bank where we have our bank account, details of which can be found on our invoice to the customer.
4. Prices
4.1 The prices are quoted, unless otherwise agreed, ex works or warehouse plus an additional amount for - as the case may be - domestic or foreign turnover tax (value added tax) in the respective statutory amount.
4.2 Unless otherwise agreed, prices and other terms valid at the time of the conclusion of contract shall apply. Under annual contracts a basic price shall be agreed for the goods to be delivered in the respective following calendar year. During each such year certain surcharges usual in the market and resulting from changing raw material and production costs in the course of a year, shall be added to the basic price for each individual delivery. The corresponding surcharges to be appropriated are regularly published in official schedules. The delivered goods shall be invoiced gross for net if this arrangement has been explicitly agreed in writing.
4.3 Customs duties, consular costs, freights, insurance premiums and other costs which exist in connection with the performance of contract shall be invoiced separately to the consumer. If the agreement differs from this and provides the inclusion of these costs in the price, we are entitled to charge any such increase in costs or newly arisen costs which have accrued later than 4 weeks after the conclusion of contract to the customer relative to the respective change.
5. Payment, offset
5.1 The purchase price shall be paid, unless otherwise agreed or stated in our invoices, net cash within 30 days from the date of invoice without any discount.
5.2 If it has been agreed that the customer shall release the goods within a given time for shipment after our notification that the shipment is ready for dispatch (release order), the customer is obliged to call the goods within 7 calendar days. If the customer does not release the goods within this deadline we are entitled from the time the goods are ready for shipment to store the goods in a warehouse at customer's expense and to bill him with the storage costs incurred; in this case the purchase price is due 15 calendar days after the date of invoice.
5.3 Payment shall be made so that the funds become available to us not later than at the last due date. Costs of payment transactions shall be borne by the customer. The customer is entitled to offset only against claims which are undisputed or recognized by legally binding judgment. The customer is entitled to a right of retention only if it is based on the same contractual relationship our payment claim results from.
5.4 If terms of payment are not complied with or upon default, interest at the rate of 8 % points above the current basic interest rate set by law shall be charged, unless another interest rate has been agreed in writing. The customer shall be in default at the latest 10 days after our claim has become due, without any special reminder being required.
5.5 If our payment claim is put at risk in the event of circumstances arising subsequent to the conclusion of contract which lead to a significant deterioration of the consumer's assets, we are then entitled to request immediate payment of our outstanding accounts and advance payment for any outstanding deliveries. The customer can avoid these legal consequences by providing security in the amount of our payment claim at risk. If the customer fails to make advance payment or to provide adequate security within a reasonable period of time, we are entitled to withdraw from the contract to the exclusion of any and all customer compensation claims.
5.6 The statutory provisions on default of payment and the assertion of rights under § 321 BGB (plea of uncertainty) shall remain unaffected.
5.7 If acceptance after inspection or materials testing has been agreed, the customer shall bear the respective costs of his own staff or of third party staff authorized by the customer, and the customer shall reimburse us for costs either incurred for services performed by members of our staff or by third companies like TÜV which we have engaged to render their services. We will inform the customer in advance of the cost rates for our staff members with regard to the individual case. Third companies will charge the customer for their services either directly or they use us for the settlement of their account in which case we will invoice the customer with the respective costs in the same amount. The acceptance after inspection shall take place at the supplier's plant or at the warehouse.
5.8 For the performance of additional obligations not covered by price lists or not subject to an agreement on their remuneration we shall invoice the customer according to our hourly rate for outside services, alternatively in compliance with the customary remuneration for comparable services.
6. Collaterals
For our claims against the customer, even if our claims are conditional or limited in time, we are entitled to demand at our option a credit insurance and/or other securities customary in the business in kind and amount. If - in individual cases or temporarily - we do not assert in whole or in part our claim to collateral security, this shall not be considered a waiver of our claim to collateral security.
7. Subject matter of the contract, execution of delivery, delivery dates, force majeure
7.1 Delivery item, quantity and quality to be delivered shall depend on the individual written agreement.
7.2 Delivery is made with due regard to the generally accepted rules of technology and to our company standards existing at the time of the conclusion of contract.
7.3 The technical data and descriptions in our product information or advertising material shall not be considered a guarantee for the condition or durability of our goods to be delivered. Sales according to samples or specimen shall only describe the technical accordance with the sample or specimen but do not constitute a guarantee for the condition or durability of the goods we have to deliver.
7.4 It is for the customer to examine whether the ordered goods which we have delivered according to the order confirmation, are suitable for the purpose of use planned by the customer, especially in connection with or by processing of materials which the customer has planned to use for individual purposes.
7.5 The customer shall not have a legal claim to the delivery of goods with their origin in the European Union as defined by preferential provisions of customs law, unless such an origin of goods has expressly been agreed.
7.6 Our obligation to deliver is subject to a correct supply in due time from our supplier, unless we are responsible for the incorrect or delayed supply.
7.7 The statement of delivery dates shall be considered to be approximate. Times for delivery begin with the date of our order confirmation and shall be applicable only on condition that all details of the order are clarified in due time and that all obligations of the customer have been met in due time, such as but not limited to providing all required official certificates, letters of credit and guarantees or making deposits. The same shall apply to delivery dates correspondingly. If the customer does not comply in due time with its contractual obligations including cooperation obligations or ancillary duties, we are entitled to extend our delivery periods and dates appropriately corresponding to the requirements of our flow of work, notwithstanding our rights resulting from the default of the customer.
All delivery periods and dates are subject to unforeseeable production stoppages and subject to our timely supply with necessary raw and feeder materials as well as contracted services and, in case of merchandise, subject to the ability to deliver, and to receive it in due time, without defects and in sufficient quantities. Exceeding confirmed time-limits with proviso creates no default.
7.8 The date of dispatch or for collection ex works or warehouse shall be decisive for the determination of our compliance with delivery periods or dates. They are deemed to be complied with if the goods cannot be dispatched or be collected in due time without any fault on our part.
7.9 In cases of force majeure, the contractual obligations of both parties are suspended and the periods and dates for the fulfilment of contractual obligations are postponed accordingly; labour disputes in our own or third party plants, serious transport impediments, serious machine failures, acts of a sovereign nature and other circumstances which neither party is responsible for, shall also be considered force majeure. The event of force majeure must be notified to the other party without undue delay. Each of the contracting parties is entitled to withdraw from the contract without any obligation to compensate at the earliest 6 weeks after the event of force majeure has arisen.
7.10 In the event of non-compliance with delivery time-limits, the customer has the rights pursuing to §§ 281,323 BGB only after he has granted us a reasonable extension for delivery, combined with the declaration - in this respect in derogation of §§ 281,323 BGB - that he will refuse acceptance of the consignment after expiry of the extended delivery period. After expiry of the extended delivery period without delivery having been effected the right to claim performance is excluded. It is not required to grant an additional period of time combined with the declaration to refuse acceptance if we expressly and finally refuse performance.
7.11 In the event of default on our part, we shall be liable as provided in article 15 hereafter for the damages evidenced by the customer resulting from or in connection with delays of the performances to be provided by us, but only in case of culpable failure to comply with bindingly agreed delivery dates and periods. We will inform the customer without undue delay about the length of delay in delivery. After being informed of the length of delay in delivery, the customer shall notify us in writing of the amount of the presumable delaying damage. If the presumable delaying damage exceeds 20% of the value of the delivered quantity which is affected by the delay, the customer is obliged to make an effort and buy goods in replacement or, if the occasion arises, buy goods in replacement which we have the customer informed of, while withdrawing from the contract as far as the quantity affected by the delay is concerned; in such a case we will reimburse the customer for proven additional costs of the covering purchase and of damage for the interim period caused by the delay. If the customer fails to meet his obligation to mitigate the damage according to the foregoing provision, our liability for proven delaying damage is limited to 50% of the value of the quantity affected. The provisions in article 15 hereafter shall remain unaffected.
7.12 The customer is entitled to withdraw from the contract without prior notice if the whole delivery of the goods becomes impossible before passing of the risk. The customer is also entitled to withdraw from the contract if in case of an order the delivery of a part of the order becomes impossible and the customer has a legitimate interest to reject partial fulfilment of the order. If the latter is not the case, the customer remains obligated to pay the contractually agreed price attributable to the partial delivery. The same applies if we are unable to perform. In other respects, the provisions of article 15 hereafter shall be applied.
8. Reservation of ownership, assignment of claim
8.1 The delivered goods shall remain our property (goods subject to reservation of ownership) until all our outstanding claims arising from the business relationship have been fully settled, in particular any balance claims in case of a current account, including but not limited to claims which are unilaterally constituted by a possible receiver and his choice which kind of performance to demand. This shall also apply to future and qualified claims, e.g. acceptor's bill, and in case payments are made related to specifically indicated claims. This current account reservation shall finally expire as soon as all our outstanding claims included in this current account reservation have been settled at the time of payment.
We shall be entitled to assign our claims for payment against the customer. Further we are entitled to mark the goods subject to reservation of ownership as such, to prohibit the customer from removing or defacing the marking and to impose on him subsequent marking of the goods.
8.2 Treatment and processing of the goods subject to reservation of ownership shall be considered to be made for us as manufacturer within the meaning of § 950 BGB, without any obligation on our part deriving therefrom. Such treated and processed goods shall be deemed goods subject to reservation of ownership as defined in article 8.1 hereinbefore.
If the goods subject to reservation of ownership are processed, combined and mixed with other goods, we shall have the proportionate co-ownership of the new object in proportion of the invoice value of the goods subject to reservation of ownership to the invoice value of the other goods. If our ownership ceases to exist as a result of combination or mixture, the customer shall transfer already now his ownership rights in the new holding or object in the amount of the invoice value of the goods subject to reservation of ownership and shall keep the holding or object in custody for us free of costs. Our co-ownership rights shall be deemed goods subject to reservation of ownership as defined in article 8.1 hereinbefore.
8.3 Goods subject to reservation of ownership may only be resold by the customer in the normal course of his business at his normal terms and conditions and as long as he is not in default, always provided that he shall retain the reservation of ownership on such goods and that claims from resale shall be assigned to us pursuant to article 8.4 and 8.5 hereafter. The customer shall not be entitled to dispose of such goods in any other way. The use of the goods subject to reservation of ownership for the fulfilment of contracts for work and services shall also be considered a resale within the meaning of this article 8.3.
8.4 All claims of the customer accruing from resale of goods subject to reservation of ownership together with all collaterals acquired by the customer for his claims shall be assigned to us already now. They shall serve as collateral to the same extent as the goods subject to reservation of ownership. If the customer resales goods subject to reservation of ownership together with other goods not purchased from us, the claim from such resale shall be assigned to us in relation of the invoice value of the goods subject to reservation of ownership to the invoice value of the other goods that had been sold. In case goods have been sold with our co-ownership pursuant to article 8.2 hereinbefore, customer shall assign to us such part of the goods which conforms to the proportion of our share in the co-ownership.
8.5 The customer is entitled to collect claims resulting from resale. This authorization shall lapse if we revocate it, but at the latest upon default of payment, failure to honour a bill of exchange or application for the opening of insolvency proceedings. We shall exercise our right to revoke only if it becomes apparent after the conclusion of contract that our claim for payment from this contract or from other contracts with the customer is at risk because his ability to pay is lacking. At our request, the customer shall immediately notify his customers of the assignment to us and provide us with all information and records necessary to effect the collection of payment.
The customer shall in no event be entitled to assign his claims.
8.6 If the customer is in default of payment or does not honour a bill of exchange on maturity and this is an indication that a substantial part of our claim is at risk, we are entitled to prohibit the customer from processing the goods subject to reservation of ownership, to collect the goods and for this to enter the plant of the customer if necessary. The same shall apply if it becomes apparent after conclusion of the contract that our claim for payment from this contract or from other contracts with the customer is at risk because his ability to pay is lacking. Taking back the goods shall not be deemed a withdrawal from the contract. Provisions of the German Bankruptcy Act remain unaffected.
8.7 The customer shall immediately notify us of any seizure of property or other detriment caused by third parties . The customer shall bear all costs necessary to lift the seizure or to transport back the goods subject to reservation of ownership, unless these costs are reimbursed by third parties.
8.8 If the value of the existing collaterals exceeds the secured outstanding debts including supplementary claims (interest, costs or similar expenses) by more than 50% in total, we shall be obliged, at customer's request, to release collaterals at our choice in an appropriate value.
9. Grades of quality, dimensions, weights
9.1 Grades of quality, types, dimensions and weights of the goods shall be determined by the criteria agreed in the contract and by our works standards valid at the time of the conclusion of contract, in the absence of an agreement by DIN/EN norms valid at the time of the conclusion of contract and in absence of such norms according to custom and business practice. The reference to norms and similar sets of rules, technical data sheets, works' test certificates and similar certificates, product descriptions in information leaflets as well as information about grades of quality, types, dimensions, weights and usability of the goods shall not be considered as warranties and guaranties; the same applies to declarations of conformity, manufacturer's declaration and pertinent marks like CE and GS.
9.2 Deviations from grades of quality, dimensions and weights are permitted within the range allowed by DIN/EN or customary business practice, unless otherwise expressly agreed. For weights, the results of our own weighing facilities or those of our previous supplier shall be decisive. Upon request of the customer, evidence shall be given by presentation of the weight slip. As far as legally permitted, weights can be determined without weighing according to norm. Our right to add or deduct certain amounts of weight within the range customary in the steel trade in Germany (avoirdupois weights) shall remain unaffected. Numbers of pieces, bundles or others shall not be binding if the goods had been calculated by weight. Unless it is customary to weigh the goods individually, the total weight of the delivery shall be applicable, regardless the means of transport for delivery. Differences with regard to the calculated individual weights shall be distributed proportionally amongst them. In case of bundled goods we shall weigh gross for net. The customer is at liberty to produce evidence that our method of measurement is incorrect.
10. Packaging
Unless otherwise agreed, goods shall be delivered principally unpacked and unprotected. External corrosions, soiling during transport and impairments of surface quality caused thereby shall not be considered as material defect. According to our experience and at customer's expense, we shall provide expressly ordered packaging, protective means and/or transport aids and take it back. We shall not take over any costs which have arisen with the customer for return transport or packaging disposal.
11. Acceptance of performance
11.1 If acceptance of performance has been agreed, it shall be effected, unless otherwise agreed, at the supplier's plant or at the warehouse. It shall be executed without undue delay after our notification that the goods to be delivered are ready for inspection and acceptance. The customer shall bear his personal costs for the inspection and acceptance, and the customer shall reimburse us for any technical inspection and acceptance costs which we have incurred.
11.2 The customer shall be obliged to execute the inspection and acceptance of performance upon our request if special quality provisions have been agreed.
11.3 If the inspection and acceptance is executed without our fault neither in whole nor in part or delayed, we have the right to perform the delivery without customer's inspection and acceptance or to put the goods into storage at customer's risk and cost which we shall charge to his account.
12. Shipment, passing of risk, part delivery
12.1 Unless otherwise agreed, we shall ship the goods at customer's costs and risk. For this we determine the transport route and means and chose a suitable forwarder or carrier. Upon customer's instruction a transport insurance shall be taken out for his account. Duty and costs of unloading shall be borne by customer.
12.2 Freight surcharges for shipment shall be added to the purchase price under the terms of the individual contract and will be invoiced to the customer. All additional costs and expenses for shipment which are not covered by freight surcharges shall be invoiced in addition.
12.3 If the customer collects the goods, we are entitled to reject the loading of vehicles which do not seem suitable for safe and reliable transportation or which are not equipped with the required devices for cargo securing purposes.
12.4 The customer is responsible for unloading irrespective of the kind of dispatch. He shall return to the carrier freight waggons and load units completely unloaded, correctly cleaned or decontaminated and complete with any loose components.
12.5 If loading or transportation of the goods is delayed for reasons which the customer is responsible for, we are entitled at our reasonably exercised discretion to put the goods into storage at customer's cost and risk, to take all steps considered suitable to maintain the goods and to invoice the goods to the customer as if they had been shipped.
Goods which have been notified according to contract as ready for dispatch must be released without undue delay, otherwise we are entitled, after reminder, to dispatch the goods at our discretion at customer's cost and risk or to decide freely to store them and bill the customer immediately.
12.6 If transport via the designated route or to the designated location becomes impossible or considerably impeded within the planned time schedule and without any fault on our part, we shall be entitled to ship the goods on another route or to a different location. Customer shall bear any additional costs. Beforehand he shall be given the opportunity to comment.
12.7 The risk, including seizure of goods, shall pass to the customer when the goods are handed over to a forwarder or carrier, otherwise upon notification to the customer that the goods are ready for collection, but at the latest when leaving the supplier's plant or warehouse. If the goods shall be delivered upon release order, the risk passes when the goods are handed over at the supplier's plant or warehouse or at the end of 7 calendar days after our notification that the goods are ready for dispatch, depending upon what first occurs. We shall provide insurance only upon instruction and at the expense of the customer.
12.8 Part delivery of reasonable quantities shall be permitted. We are also entitled to exceed or go below the agreed quantity to be delivered within a reasonable margin and in any case within the margin usual in the business. The statement of an approximate ("circa") quantity shall entitle us to exceed or go below the agreed quantity up to 10%.
13. Release orders, continuous deliveries
13.1 If continuous deliveries have been agreed, e.g. on the basis of annual contracts, the customer shall give the respective release orders and type classifications in approximately equal monthly quantites; otherwise we are entitled to determine ourselves the quantites and type classifications according to our reasonably exercised discretion.
13.2 If the individual release orders exceed in total the agreed quantities, we are entitled but not obliged to deliver the excess quantity. We may invoice the excess quantity to the customer at prices valid at the time of the release order and the delivery of the goods respectively.
13.3 If release orders have been given, the goods notified to be ready for dispatch must be collected without undue delay, otherwise we are entitled at our choice, after reminder, to dispatch the goods at customer's cost and risk or to put them into storage at our discretion and invoice them immediately to the customer.
14. Claims based on defects
14.1 The goods shall conform with the contract if they do not differ or differ only insignificantly from the agreed specifications. Whether our goods conform with the contract or are free of defects shall exclusively be determined by the express agreements with regard to quality and quantity of the ordered goods at the time when the risk passes, on the understanding that insignificant production-related discrepancies within the margin of tolerances usual in the steel business or according to norms shall not constitute a defect.
14.2 In case the sale of downgraded goods has been agreed, such as so-called II a - material, we shall not accept any responsibility for the specified defects and for such defects usually to be expected for such material.
14.3 Liability for a specific purpose of use or suitability shall be assumed only to the extent which has expressly been agreed. Otherwise the customer shall exclusively bear the risk for a specific purpose of use or suitability.
14.4 The content of agreed specifications and a purpose of use which may have expressly been agreed does not constitute a guarantee. The assumption of a guarantee shall be subject to an express written agreement.
14.5 We shall not be liable for deterioration, loss or improper handling of the goods after the risk has passed.
14.6 The customer has to examine the goods upon receipt without undue delay. Claims based on defects only exist if written notice of a defect has been given without undue delay, at the latest 7 days from delivery and collection respectively. Hidden defects must be notified in writing immediately after their discovery, at the latest, however, before the agreed or statutory time of limitation will expire, and treatment and processing of the goods shall immediately be stopped upon discovery of hidden defects.
A complaint in respect of a defect of goods after execution of an agreed inspection and acceptance of performance shall be excluded, if such defects could have been discovered during the inspection.
14.7 In the event of complaints about defects, the customer shall give us without undue delay the opportunity to verify the goods under objection. Upon our request, the customer shall make the goods under objection or a sample of the same available to us at our expense. If a complaint is unjustified, we shall reserve the right to charge the customer with freight , handling and our examination costs at normal market prices.
Any right resulting from the delivery of a faulty product shall cease to exist if the customer fails to give us in due time the opportunity to verify the defect, especially if he does not make the goods under objection available to us or if we are not provided in due time with samples of the same for examination purposes.
14.8 In the event of a defect we shall, at our discretion, provide subsequent performance of the contract either by substitute delivery or subsequent improvement, taking into account customer's interest. We are entitled to refuse subsequent performance if it could only be provided at disproportionate costs. If we do not provide subsequent performance successfully within a reasonable period of time, the customer shall be entitled to grant us a reasonable time-limit for subsequent performance and, after such unsuccessful grace period, he can either reduce the purchase price or withdraw from the contract. Any further claims are excluded. The provisions in article 15 hereafter shall remain unaffected.
With respect to products where defects are generally confined to just a few definable parts of the goods which do not affect the use of the other parts substantially, the parties to the contract shall preferably try to agree in individual cases on a reasonable reduction of the purchase price instead of using the rights pursuing to this article 14.8 para. 1 first sentence.
14.9 In case of a defect in title we shall have the right to demand subsequent performance by remedy of the defect in title within 2 weeks after customer has received the goods. Otherwise article 14.8 para. 1 sentence 2-4 hereinbefore shall be applied accordingly.
14.10 We shall bear costs arisen in connection with subsequent performance only if they are adequate with regard to the individual case, especially in proportion to the purchase price of the goods. Costs are usually disproportionate if the direct costs of subsequent performance including necessary expenses exceed 150% of the invoiced amount for the respective goods excluding turnover tax. Costs in connection with the installation and removal of defective objects shall be excluded as well as costs which the customer incurred because he remedied defects himself without existence of relevant statutory provisions.
We shall not bear costs which arise because goods sold have been transferred to another location than the agreed place of delivery, unless this would comply with its contractual use.
14.11 After customer's execution of an agreed inspection of goods and acceptance of performance, notice shall be excluded of such defects which could have been recognized considering the agreed kind of inspection and acceptance. If the customer has not recognized a defect because of negligence, he is only entitled to claim his rights if we have concealed this defect fraudulently or if we have given a guarantee for the nature of the object.
14.12 The following provisions of article 15 shall apply to any further claims of the customer. Any right of recourse which customer may have against us pursuant to §§ 478, 479 BGB shall remain unaffected, is, however, subject to the limits of statutory regulations pertaining to defects asserted by third parties against the customer, and requires that customer has met his obligation to notify the defects to us pursuant to § 377 HGB (German Commercial Code). Customer is obliged to reject such claims of third parties as far as useful.
14.13 We shall not accept lump-sums for complaints, lump-sum compensation or contractual penalties.
15. General restrictions of liability, statute of limitations
15.1 Unless otherwise stipulated in the present General Terms and Conditions for Sales and Delivery, we shall be liable to compensate damages for violation of contractual and non-contractual obligations, particularly for impossibility of performance, default, fault in the phase of contract negotiations (culpa in contrahendo) and for tort only in case of intent or gross negligence on the part of our statutory representatives or contractual agents, as well as for culpable violation of essential contractual obligations. In case essential contractual obligations are violated, we shall be liable – except in case of intent or gross negligence on the part of our statutory representatives or contractual agents – only for damages typical for the respective contract and foreseeable. Otherwise our liability is excluded, also in relation to damage and consequential damage caused by defects.
15.2 Our overall liability for whatever legal reason shall be limited to the total contract value and, in case of release orders deriving from a master agreement or of individual orders on such an agreement, to the value of the release orders or the individual orders, unless higher insurance coverage or higher compensation claims against third parties outside the Group exist. If the total contract value or the value of the release order or the individual order falls below 50,000.00 EURO excluding statutory turnover tax, the amount of 50,000.00 EUR shall be the ceiling on liability, unless higher insurance coverage or higher compensation claims against third parties outside the Group exist.
15.3 The foregoing provisions on the exclusion and limitation of liability shall not apply in cases of mandatory liability pursuant to product liability law, damage to life, body and health and in the event we have fraudulently concealed any defects or guaranteed the absence of defects. The rules on the burden of proof shall remain unaffected by this.
15.4 Unless otherwise agreed, claims based on defects and contractual claims of the customer resulting from and in connection with the delivery of the goods, shall become statute-barred one year after delivery of the goods. The statutory periods of limitation for goods which have been used for a building consistent with their normal use and which have caused damage to the building shall remain unaffected thereby. Further the first sentence shall not be applied in case of gross negligence, intent, damage to life, body and health and fraudulent concealment of a defect. Subsequent improvement and substitute delivery shall not cause the statutory period of limitation to start anew.
16. Proof of export, turnover tax
16.1 If a customer located outside Germany or its agent collects our goods and ships or sends them abroad, he shall give us sufficient evidence of the exportation and present
documents which must meet the requirements of German turnover tax law. If such evidence is not given within 30 days after we have transferred the goods to the customer or its agent, the customer shall pay turnover tax for the respective invoice according to the tax rate applicable to deliveries within Germany, unless we are entitled to tax-exempt export delivery.
16.2 In case we have to deliver our goods to other EU member states, customer shall notify to us before the delivery his sales tax identification number under which he is liable for purchase taxation within the EU. Otherwise customer shall pay for our deliveries in addition to the agreed purchase price the amount of turnover tax which we owe by law.
17. Applicable law, place of jurisdiction, others
17.1 The relationship between the contracting parties shall be governed exclusively by the laws of the Federal Republic of Germany and the application of the UN Convention on Contracts for the International Sale of Goods (CISG) of 11.04.1980 shall be excluded.
17.2 Sole venue for all disputes between the contracting parties shall be Duesseldorf, Germany. If we are plaintiff in legal proceedings, we shall also be entitled to sue the customer at its competent place of jurisdiction.
17.3 If individual provisions of the present General Terms and Conditions for Sales and Delivery are or become ineffective, then the effectiveness of all other provisions shall not be affected thereby.
(06/2011)