General terms of payment and delivery of Otto Klostermann GmbH
1.1. The following manufacturing contracts apply to all contracts for the supply of goods entered into between the purchaser and us, the manufacturer, in particular the supply of steel components. They also apply to all future business relations, even if they are not expressly agreed again. Different terms of the purchaser which we do not explicitly acknowledge, are not binding for us, even if we do not explicitly contradict them. The following terms of delivery of the manufacturer apply even if we are aware of conflicting or different terms of the purchaser and fulfil the purchaser’s order without reservation.
1.2. All agreements entered into between the purchaser and ourselves for the execution of the manufacturing contracts are recorded in written form in the contracts.
2. Offers and conclusion of contract
2.1. We can accept an order of the purchaser, which can be qualified as an offer to conclude a manufacturing contract, within two weeks by sending an order confirmation or by sending the ordered products within the same period.
2. 2. Our offers are subject to change without notice and non-binding, unless we have expressly indicated them as binding.
2.3. We reserve our ownership, copyright and other property rights to all pictures, calculations, drawings and other documents. The customer may transfer them to third parties only with our written consent, irrespective of whether these are referred to as confidential.
3. Terms of payment
3.1. Our prices are quoted ex works without packaging, unless otherwise defined in the order confirmation. Our prices do not include VAT. These are indicated separately in the legally due amount on the day of the invoice.
3.2. Discount deduction is allowed only with a special written agreement between us and the purchaser. The manufacturer compensation is due for payment (without deduction) immediately with receipt of the invoice by the purchaser, as far no other payment is provided in the order confirmation. A payment will be deemed to have been made once we can dispose over the amount. In the event of payment by cheques, payment will be deemed to have been made when the cheque is cashed.
3.3. If the purchaser is behind schedule with a payment, the legal regulations apply.
3.4. The purchaser is entitled to set off, even if claims or counterclaims are filed, only if the counterclaims have been determined as legal, recognised by us or are indisputable. The purchaser may exercise a right of retention only if its counterclaim is based on the same contractual relationship.
4. Delivery period
4.1. Dates of delivery or deadlines, which have not been expressly agreed as binding, are exclusively non-binding. The specified delivery period does not begin until the technical issues have been clarified. The purchaser has to fulfil all its obligations properly and in good time.
4.2. If the underlying manufacturing contract is a short selling within the meaning of Article 286 para 2 No. 4 of the German Civil Code (BGB) or of Article 376 of the German Commercial Code (HGB), we are liable according to the statutory provisions. The same applies if the purchaser is, as a result a delay in delivery for which we are liable, entitled to assert its loss of interest in the continuation of the contract. In this case our liability is limited to foreseeable, typically eventuating damages, unless the delayed delivery is caused by our deliberate infringement of the contract, while a fault on the part of our representatives or vicarious agents can be attributed to us.
In case of delayed delivery, we are liable to the purchaser according to the statutory provisions, if it is based on a wilful or grossly negligent breach of the contract for which we are liable, while any fault of our representatives or vicarious agents is attributable to us. Our liability is limited to foreseeable, typically eventuating damages, if the delayed delivery is not caused by our deliberate infringement of the contract.
4.3. In case that a delayed delivery for which we are liable was caused by the culpable violation one of a fundamental contractual obligation, while a fault of our representatives or vicarious agents is attributable to us, we shall be liable according to the legal regulations with the proviso that in this case the payment of restitution of a damage is limited to the foreseeable, typically eventuating damages.
4.4. Furthermore, in case of a delayed delivery for which we are liable, the purchaser can assert a lump-settlement for each completed week of the delay in the amount of 3% of the value of delivery, however maximum no more than 15% of the value of delivery.
4.5. Any further liability for delayed delivery for which we are liable is excluded. Other legal claims and rights of the purchaser to which it is entitled in addition to the claim for damages due to a delayed delivery for which we are liable remain unaffected.
4.6. We are entitled to partial deliveries and partial performance at any time as far as this is reasonable for the customer.
4.7. If the purchaser is in default of acceptance, we are entitled to demand compensation for damages in this respect, including any additional expenses. The same applies if the purchaser culpably neglects its cooperation duties. Upon occurrence of the default of acceptance or default of the debtor, the risk of accidental loss and accidental destruction passes to the buyer.
5. Transfer of risk I Shipping I Packaging
5.1. The goods are loaded and shipped uninsured at the risk of the purchaser. We will try to take the wishes and interests of the purchaser into account regarding the type of delivery and dispatch; additional costs resulting from this – also in the case of agreed-upon carriage-paid delivery – are to be borne by the purchaser.
5.2. Transport packaging and all other packaging referred to in the Packaging Ordinance is non-returnable; except for pallets. The purchaser has to provide for the disposal of the packaging at its own expense.
5.3. If shipment is delayed by request or fault of the purchaser, we store the products at the expense and risk of the purchaser. In this case, the notification of the readiness for dispatch is equivalent to the dispatch.
5.4. At the purchaser’s request and expense we will have the delivery covered by transport insurance.
6.1. The assertion of warranty claims by the purchaser is only possible if it has properly met its examination and complaint obligations pursuant to Article 377 of the German Commercial Code.
6.2. If there is a defect in the products for which we are liable, we shall be obliged to the supplementary performance, under the exclusion of the rights of the purchaser to cancel the contract or reduce the purchase price (reduction), unless we are entitled to refuse the supplementary performance by reason of the legal regulations. The purchaser shall grant us a reasonable deadline for the supplementary performance. The supplementary performance can be provided at our discretion by correcting the defect (rework) or delivery of a replacement product. We bear all the necessary expenses in the event of the correction of defects, provided these are not increased because the object of agreement is located at a place other than the place of performance.
If the subsequent performance fails, the customer may demand at its option the reduction of the manufacturer compensation (reduction) or declare withdrawal from the contract. The rework is deemed to have failed with the second futile attempt, unless with regard to the object of the contract no further rework attempts are reasonable for the purchaser.
The purchaser can assert a claim for damages due to the defect only if
the subsequent performance has failed. The purchaser’s right to claim further damages based on the following conditions remains unaffected.
6.3. The claims of the purchaser due to a defect expire one year after delivery of the products to the purchaser, unless we have fraudulently concealed the defect; in this case, the legal regulations apply. Our obligations under section 6 para 4 and section 6 para 5 remain unaffected.
6.4. In accordance with the legal requirements we are obliged to take back the new products or to reduce the manufacturer compensation (reduction) even without the otherwise required deadline if the customer of the purchaser as consumer of the newly produced movable item (purchase of consumption goods) could demand the return of these goods or a reduction in the manufacturer compensation due to the defect of these goods, or, as a result of it, a claim for withdrawal will be asserted against the purchaser. We are also obliged
to compensate the purchaser for the expenses, in particular transport, work and material costs, which it should bear in relation to the end consumer as part of the subsequent performance based on the transfer of risk of the existing defect of goods to the purchaser. The claim is excluded if the purchaser has not properly met its examination obligations pursuant to Article 377 of the German Commercial Code.
6.5. The obligation under section 6 is excluded, as far as it concerns a defect due to advertising statements or other contractual agreements, which do not originate from us, or if the purchaser has submitted a special warranty towards the final consumer. The obligation is also excluded if the purchaser itself was not obliged to exercise the warranty rights towards the final consumer according to legal regulations or has not made this complaint against a claim filed against it. This also applies if the purchaser has assumed warranties towards the final consumer, which go beyond the statutory requirements.
6.6. We are fully liable under the statutory provisions for damage to life, limb or health based on a negligent or intentional breach of duty by us, our legal representatives or our vicarious agents, as well as for damages covered by the liability under the Product Liability Act. We are liable according to legal regulations for damages that are not covered by sentence 1 and which are based on our or our legal representatives’ or our vicarious agents’ wilful or gross negligence or fraudulent intent. In this case,
however, the compensation for damages is typically limited to the foreseeable, typically eventuating damages, unless we or our legal representatives or our vicarious agents acted intentionally. To the extent that we have provided a quality and durability guarantee with regard to the goods or parts thereof, we shall also be liable under this warranty. We are liable for damages based on the lack of guaranteed quality or durability, which however occur not directly on the product, only if the risk of such damage is clearly covered by the quality and durability guarantee.
6.7. We are also liable for damages caused by simple negligence insofar as the negligence concerns the breach of contractual obligations, the adherence to which
is of particular importance in reaching the purpose of the contract (cardinal duty). However, we are liable only to the extent that the damages are typically associated with the contract and foreseeable.
6.8. Further liability is excluded regardless of the legal nature of the asserted claim, this applies in particular to tortious claims or claims for futile expenditure instead of performance. This does not effect our liability according to section 4 para 2 our to section 2 para 5 of this agreement. If our liability is excluded or limited, this also applies to the personal liability of our employees, representatives and vicarious agents.
6.9. Claims for damages of the purchaser due to a defect shall expire one year after delivery of the products. This does not apply in the event of injuries to life, body or health culpably caused by us, our legal representatives or our vicarious agents, or if we or our legal representatives have acted with wilful or gross negligence, or if our simple vicarious agents have acted intentionally.
7. Retention of title
7.1. The goods delivered by us (reserved goods) remain our property until all claims including all balance claims for the current account to which we are entitled against the purchaser now or in the future have been settled. In the case of behaviour by the purchaser that is in breach of the terms of the contract, e.g. default of payment, we are entitled to withdraw from the contract and demand return of the reserved goods. If we take back the reserved goods, this constitutes a withdrawal from the contract. We distrain the reserved goods, this is a withdrawal from the contract. We are entitled to utilise the reserved goods after the withdrawal. After deducting a reasonable amount for utilisation costs, the utilisation proceeds shall be set off against the amounts due to us by the purchaser.
7.2. The purchaser has to handle the goods with care and to insure them at its own expense against fire, water and theft damage, with the insured sum being adequate to cover the replacement value. Maintenance and inspection work that may become necessary shall be performed by the purchaser at its own expense.
7.3. The purchaser is entitled to resell the reserved goods properly in commercial transactions and / or use them, as long as it is not in default of payment. Pledging the goods or transferring ownership by way of security is not permitted. The purchaser assigns to us by way of security all the claims arising from the resale or further processing or installation or any other legal reason (insurance, unlawful act) with regard to the reserved goods (including all balance claims from current account) already now. We accept the assignment. We hereby grant the purchaser a revocable authorisation to debit the claims assigned to us to its account in its own name. The direct debit authorisation may be revoked at any time if the purchaser does not duly meet its payment obligations. To assign this claim, the purchaser is not entitled to the debt collection by means of factoring, unless the obligation of factor is simultaneously established to render counterperformance directly to us as long as we still have claims against the purchaser.
7.4. A processing or transformation of the reserved goods will be made for us by the purchaser in any case. If the reserved goods are processed with other items that do not belong to us, we shall acquire joint ownership of the new item proportional to the value of the reserved goods (final invoice amount including VAT) compared to the other processed items at the time of processing. The same as for the reserved goods applies to the new item resulting from the processing. In the event of inseparable
mixing of the reserved goods with other items not belonging to us, we shall acquire co-ownership of the new item in proportion of the value of the reserved goods (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the item of the purchaser obtained as a result of mixing is to be deemed as main item, the purchaser and we agree that the purchaser shall assign to us the pro rata co-ownership of this item; we hereby accept the transfer. The purchaser keeps for us the sole ownership and co-ownership of an item obtained in this way.
7.5. In the event of access to the reserved goods by third parties, especially in the case of pledging, the purchaser shall bring our ownership to our notice and inform us immediately so as to allow us to assert our property rights. If the third party is not in a position to compensate us in connection with the arising court or out-of-court costs, the purchaser shall assume liability for this.
7.6. We are obliged to release the securities to which we are entitled as far as the realised value of our securities exceeds the claims to be secured by more than 10%. The selection of the securities to be released is at our discretion.
7.8. If we process items that the purchaser delivers to us as a manufacturer on behalf of the purchaser, we acquire full ownership of the items in accordance with Article 950 of the German Civil Code. The provisions of 7.1 – 7.7 of this section apply to the delivery of the manufactured goods without restriction.
If we do not acquire the ownership of the manufactured goods in accordance with section 950 of the German Civil Code because the value of our performance as a manufacturer minus the value of the unprocessed goods is lower than 60% of the value of the produced item, the provisions of
7.2 – 7.7. of this section apply without restriction.
8. Place of performance, place of jurisdiction, applicable law
8.1. Place of performance and jurisdiction for deliveries and payments (including claims in connection with checks and bills) as well as for all disputes arising between us and the purchaser under the contracts for labour and materials concluded between us are our company headquarters. However, we are entitled to sue the purchaser at its place of residence and/or business.
8.2. The relations between the contracting parties are governed exclusively by the law applicable in the Federal Republic of Germany. The application of the uniform law on the international sale of movable goods, as well as of the law on the conclusion of international purchasing contracts for movable goods is excluded.
Status as at 2011