General Terms and Conditions
I. General Provisions
- The following General Terms and Conditions are part of the contractual relation between us and the customer/buyer. This is valid also in case of a contract conclusion by telex/fax/email or by telephone within the context of ongoing business connections. Purchase conditions of the customer/buyer differing from these provisions are valid only in singular cases and there only, if this has been explicitly confirmed in writing. This written confirmation is no substitute for a fulfillment of contract by us.
- The contract is not concluded until receipt of our written confirmation of order. Before receipt of the written confirmation of order, all offers are subject to change and non-binding. The specifications of the ordered products given in the confirmation of order are contractual basis.
- Any collateral agreement, amendments to or supplements of the contract must be confirmed by us in writing in order to be valid.
- The documents included in the offer and the confirmation of order, like e.g. drawings and illustrations as well as other specifications and performance data are only binding when they are explicitly marked as binding. Moreover, details concerning supply and services must be regarded as being only approximate. In particular, they do not constitute guaranteed features, but they are descriptions and characterizations of the products. Any reference to technical sets of regulations, like e.g. DIN standards and similar does not constitute a guarantee for features by us.
- We reserve the right to modify and amend our products as far as, in consideration of our interests, they can be reasonably imposed on the customer/buyer.
- We reserve the property right and copyright of all documents included in the offer, such as illustrations, drawings and the like. It is not allowed to make them accessible to third parties and have to be returned to us on demand.
- The rights of the customer/buyer determined in the contract are not transferable without our prior consent.
II. Prices and Terms of Payment
- Provided that no other agreement was made as part of the offer or written confirmation, our prices are calculated ex stock or ex works and do not include transportation / postage costs and legal value-added tax. Specified prices including transportation charges are valid under the circumstance of unimpeded transport by train, car or ship. Dead freight has to be paid by the customer/buyer.
- Our contract terms are based on today’s prices. However, we reserve the right to charge the prices valid on the day of delivery, if there will be an increase of current prices for feedstock, additive and operating supply material, wages and freight, or a change of other relevant factors for calculation. In case of orders with a merchandise value lower than 80,- EUR the customer has to pay an extra charge for small quantities.
- In the absence of a deviant written agreement, our invoices are due for payment within 30 days after billing date. For payment within 10 days we grant a discount of 2%. Bills of exchange are not accepted as means of payment.
- All our claims arising from the business relation become immediately due for payment, if the terms of payment are not fulfilled, or if after the conclusion of the contract occurs a substantial deterioration concerning the buyer or his financial situation, or if we find out about an earlier occurrence of such a deterioration. In particular, we consider relevant information provided by a major credit agency or bank as valid evidence for substantial deterioration of the financial situation. Like in the case of a deteriorating financial situation, the same applies, if only one due installment of any contract is, in spite of reminder, not instantly paid. Furthermore we are entitled to recall delivered goods and to carry out pending deliveries upon prepayment or by way of security. Additionally, we have the right to withdraw from a contract. If, for reasons as described above, we have to take back delivered goods, the associated transportation costs shall be chargeable to the buyer.
- In the event of delay of payment, we will charge interest and commissions corresponding to the rates for short term credits valid at the time, at least 5% above the discount rate of the German Federal Bank.
- In case of delay of payment we are entitled to withdraw from all contracts, which have not been carried out so far, or to retain all deliveries and other performances from all contracts until complete fulfillment of all our compulsory claims against the customer/buyer. The customer/buyer may avert this retention of goods by providing a directly enforceable guarantee covering the amount of all outstanding debts without time limit from a major German bank, savings bank or credit union. We reserve the right to assert a claim in respect of any additional damage caused by delay.
III. Reservation of Title
- All goods delivered by our company remain our property until payment of all outstanding debts and especially balance claims on whatever legal grounds. In the event of delay of payment or non-fulfillment of our terms of payment we are entitled to retract the goods at any time. If we exercise this right, this does not constitute a withdrawal from the contract unless we explicitly declare that. The costs associated with the retraction chargeable to the buyer.
- The buyer may resell the goods generally delivered by us and which are subject to reservation of title, but only within common business on his normal terms and conditions. The right of resale expires instantly on any default of payment to us. Moreover, the right to resell the goods subject to reservation of title is only valid provided that the claim resulting from the alienation can be transferred to us and that there are no prohibitions conflicting with that. All claims of the buyer arising from the resale of goods subject to reservation of title are transferred to us at present, irrespective of whether the goods subject to retention of title are sold without or after processing, mixture or combination. If the customer resells the goods subject to retention of title together with other goods not belonging to us, then the transfer of a claim resulting from the resale is valid only to the amount of the invoice value of the goods delivered by us. The buyer is entitled to collect the receivables transferred to us until revocation which is admissible at any time.
- If the good delivered by us is seized or confiscated, the customer has to point out to the existing reservation of title and he has to inform us immediately by certified mail with delivery confirmation. Costs for intervention shall be chargeable to the customer.
IV. Delivery and Time of Delivery
- We deliver ex works. In all cases, where no specifically defined transport instructions are given with the placement of order, the dispatch will be properly handled at our discretion, but without any obligation to choose the cheapest transportation. The packaging deemed necessary in our discretion will be charged at cost price. If pallets shall be returned in good condition and free of transportation and other charges within 4 weeks, we will refund 70% of the calculated value.
- All consignments shall be made at the expense and risk of the buyer. This also applies, if it was agreed, that we have to pay the transportation costs. This has to be considered as a prepayment made by us to the buyer.
- Specified prices free of transportation charges are valid provided that, at the date of delivery, the ruling prices for freight vehicles, railway, shipping, harbor dues and rates of duty are not higher than those upon which the offer is based. Any increase in the freight costs that may have occurred in the meantime shall be chargeable to the buyer. Moreover, all export sales and deliveries are subject to the latest version of the Incoterms issued by the international Chamber of Commerce. Dead freight has to be paid for by the buyer.
- If the customer/buyer veritably sustains a damage caused by a delay for which we are responsible on account of deliberate or grossly negligent behavior, then, to the exclusion of further claims, he is entitled to claim compensation for delay, which, for every entire week amounts to one percent, but altogether shall be not higher than a value of 5% of such parts of the entire delivery, which because of the delay cannot be used in due time or as according to contract. Slightly negligent conduct on our part does not entitle the buyer to claim compensation for delay.
- If the dispatch shall be delayed at the request of the buyer or for reasons attributable to the buyer, we will, starting a month after indication of readiness for dispatch, charge him for the costs arising from storage, in case of storage in our factory this charge will be, per month or part thereof, at least a half percent of the invoice amount. We reserve the right to assert further claims resulting from delay.
- Moreover, after determination and fruitless expiration of an adequate deadline we are entitled to other dispositions concerning the article of sale and to newly supply the buyer after an adequate period or to withdraw from the contract or to claim damages for non-performance.
- The specified delivery dates are valid ex works and are not binding. The buyer can assert delay on our part no earlier than 3 weeks after the specified date of delivery. If we default on delivery, the customer can, after setting us a new deadline of 4 weeks, which has to imply a declaration, that he will refuse acceptance of the delivery after expiration of the deadline, withdraw from the contract in accordance with §326 Abs.1, sentence 3 BGB. If the delivery becomes impossible for us because of circumstances for which we are responsible, the customer can also cancel the purchase in accordance with §325 Abs. 1, sentence 2 BGB. On those otherwise previously mentioned conditions, in case of delay and impossibility , the buyer may claim damages for non-performance instead of withdrawing from the contract, only if the delay or impossibility is on purpose or due to gross negligence of our legal representatives or executive employees.
- Force majeure and other extraordinary circumstances like war, mobilization, shortage of fuels, of resources, of additive and operating supply material, water deficiency, general or partial strikes, lockouts, riots, traffic jams and lack of means of transport, fire and water damage, shortage of manpower or of goods, and the like, for which neither our company nor our suppliers are responsible and which make it problematic to carry out a transaction without a hitch, entitle us to withdraw completely or partially from the contract.
- We are entitled to make partial deliveries.
V. Credit Base
- The customer’s / buyer’s credit rating is prerequisite for consignment. If after conclusion of contract we shall obtain information, which makes the granting of a credit at the amount determined in the contract appear risky, or if there arise facts, that give cause to doubt in this respect, especially if a substantial deterioration of the financial situation occurs (levy of execution, suspension of payment, composition, bankruptcy, liquidation, transfer of a business), we are entitled to require payment in advance, provision of security or payment in cash, irrespective of preceding contradictory agreements.
- On those same conditions we are entitled, irrespective of preceding contradictory agreements, after supplying the customer/buyer, to visit his storehouse and to temporarily seize goods, which are subject to reservation of title, until payment in cash will be made. Transportation and storage costs have to be paid for by the customer/buyer.
VI. Features and Warranties
- Decisive for the correct condition and weight of the goods as specified in the contract is the date of dispatch from our factory.
- The buyer is obliged to check the goods for evident faults directly after receipt. If he detects evident faults concerning weight, size and quality of the goods, he has to complain about this in writing to Draht Binder OHG within a cut-off period of 8 days after receipt of the goods. Such complaints can only be considered as relevant as far as the goods are still in the condition as delivered. Faults that cannot be detected within the above mentioned period despite closest inspection, have to be complained about in writing immediately after detection and any possible processing has to be terminated directly by the buyer.
- After six month from the date of delivery, also the liability for hidden faults will be excluded.
- If the buyer does not define special requirements concerning the wire, then, for the production of double crimp screens, flat top screens and spot welded wire meshes, we will use wire rod made of unalloyed steel for common use according to DIN EN 100 16-2.
- Defective goods shall be returned for inspection to Draht Binder OHG only at our request and upon prior consultation. Return will be effected at the buyer’s risk. If the request for return will not be complied with immediately, the goods will be considered as accepted. If the rejection is justified, Draht Binder OGH will bear the costs for transport, otherwise they will be borne by the buyer.
- In cases of justified complaints Draht Binder OHG will commit herself to optionally mend or provide substitute for the defective parts within an adequate period. Replaced parts shall become our property. Only after failure of rectifications and of replacement will there be the right to reduce the amount of invoice or to cancel the contract. Entitlement to damages for non-performance is excluded. Only after two vain attempts of rectification will a rectification be considered as failed.
- Complaints concerning the dimensions of double crimp screens and flat top screens can only be lodged, if the grids are smaller than confirmed by us in writing. Delivery of larger sheets does not entitle to complaint. However, the dimension specified in the order confirmation remains the basis of calculation. The mesh widths of double crimp screens and flat top screens are not regulated by any DIN standard. The mesh widths may deviate up to 5% from the nominal width. The zinc coating of galvanized wire used for the production of double crimp screens and flat top screens, may have, depending on wire diameter, a zinc coating of 35 – 100 g/m² and therefore may deviate from DIN 1548. Furthermore the customary standards and tolerances are understood as agreed. We do not grant guarantees concerning usability for special purposes and processing.
- The buyer shall be entitled to damages due to culpable violation of contract – except delay and impossibility -, particularly in case of default in performance of contract, fault on conclusion of the contract and all kinds of consequential damage, only if our legal representatives and/or executive employees act on purpose or grossly negligent. We will, however, only make up for a foreseeable damage. Relating to merchants, where only a liability arising from default in performance of contract is relevant, we exclude liability for consequential harm caused by defects. Moreover we exclude entitlement to damages in the previously mentioned cases, particularly if our assistants, who are not executive employees, act on purpose or grossly negligent, and in the case of common negligence.
VII. Set-off and Right of Retention
- The orderer/buyer shall be entitled to set off our demands solely against counterclaims which have been accepted by us in writing or in favour of which legal judgement has been passed. The exercise of rights of retention or of rights to refuse performance is excluded for the buyer, even in the case of justified complaints.
VIII. Collateral Clauses
- If one of the previous regulations should contingently become ineffective, this will not affect the validity of the remaining regulations.
- Deviations of these terms have to be in writing to be valid. Ancillary verbal agreements are only valid if confirmed by us in writing.
- Place of performance is Erkrath.
- The legal venue for contingent claims, including actions on a bill or check arising from contracts with general merchants and legal persons, is Düsseldorf.
Draht Binder OHG