General terms and conditions
1. These general terms and conditions apply for all -including future- agreements pertaining to deliveries and otherservices of ASS Stahlservice GmbH including factory- and factory supply agreements. These conditions are deemedaccepted at the latest with the receipt of the goods or services. They apply exclusively; opposing conditions orconditions deviating from our general terms and conditions of a purchaser are not recognised by us unless we have expressly agreed to their validity in writing. Counter confirmations by a purchaser under reference to his businessand/or purchasing conditions are not recognised, even if we have not explicitly objected to them upon receipt. Our general terms and conditions apply also if we unreservedly perform the delivery to the purchaser in the knowledge
of opposing conditions or conditions deviating from our general terms and conditions.
2. Our offers are subject to alteration and not binding. Verbal agreements and assurances of our employees only become binding upon our written confirmation. The same applies for additions, amendments or ancillary agreements.
3. The Incoterms 2000 are decisive for the interpretation of commercial clauses in case of doubt.
4. All statements such as measurements, weights, illustrations, descriptions, installation instructions and drawings in sample books, price lists and other printed matter are only approximately determined, as best as possible, however insofar not binding for us. The same applies for statements by the factories. We reserve the property- and copyrights to illustrations, drawings, calculations and other documentation. This also applies to such written documentation, which is deemed to be “confidential”. The purchaser requires our explicit written approval prior to the transfer to a third party.
5. “Purchaser” in terms of these regulations is also the “customer” in factory- and factory service agreements.
6. Our general terms and conditions only apply for business persons in terms of § 310 sub paragraph 1 BGB (German Civil Code).
1. Unless stated otherwise in the order confirmation our prices are “ex works”, excluding packaging and freight. The legally applicable VAT is also not included in our prices; it will be itemised separately in the invoice in the amount applicable on the date of the invoice.
2. If fees or other external costs contained in the price change at a date later than four weeks after the execution of the agreement, or if they are newly created we are entitled to a price change at the respective extent.
3. We reserve the right to alter our prices accordingly if a cost reduction or a cost increase, particularly due to wage agreements, or a material price change occurs. Upon request we will prove these changes to the purchasers.
III. Payment and offsetting
1. The payments are to be made without the deduction of a discount in a manner allowing us to dispose of the amount on the due date; the deduction of a discount requires our special written agreement. Unless stated otherwise in the order confirmation the purchase price is due net (without deduction) within 30 days from the date of invoice. The legal regulations regarding the consequences in case of payment default apply. The costs of the transactions are borne by the purchaser. The purchaser is only entitled to a right of retention and a right to offset as far as his counter claims are uncontested or legally determined. He is furthermore only entitled to assert his right of retention if his counter claim is based on the same contractual relationship.
2. In case of the arrangement of payment terms the day of the delivery is deemed to be the key date for its calculation as well as for any interest calculations. Every order is deemed an individual transaction pertaining to the payment.
3. Payments by way of bill of sale require our explicit prior approval. All bill-of-sale expenses are borne by the purchaser. The acceptance of bills of sale does not constitute a deferment of the underlying claim.
4. Cash payments to us only have an exempting effect if they are made to persons, who are furnished with a written authority to collect.
5. We are entitled to assign the claims from the agreed business connections.
6. If the purchaser is in default of payment or if he does not honour a bill of sale at the due date or if other circumstances occur, which indicate a significant deterioration of the purchaser’s financial situation and jeopardise our payment claim, we are entitled to demand the payment of all our claims, which are based on the same legal relationship as well as demand securities or prepayment for still pending deliveries and services from the business relationship.
IV. Execution of deliveries, delivery periods and -deadlines
1. Our obligation to deliver is subject to correct and timely self-supply unless we are responsible for the incorrect or delayed delivery.
2. Statements regarding the delivery times are approximates. Delivery periods commence with the date of our order confirmation and only apply providing the timely clarification of all details of the order and the timely fulfilment of all obligations by the purchaser such as e.g. the provision of all official certifications, establishment of letters of credit and guarantees or payment of deposits. The objection of the unfulfilled contract is reserved.
3. If the customer is in default of acceptance or if he culpably violates other cooperation obligations we are entitled to demand compensation for the related damage incurred including any additional expenses. Further claims remain reserved. Furthermore, in case of a default of acceptance the risk of accidental loss or accidental deterioration of the ordered goods is transferred to the purchaser at the point in time at which he entered the state of default of acceptance or default of payment.
4. We are liable according to the legal regulations if the underlying purchase agreement is a transaction of a fixed date in terms of § 286 (2) Nr. 4 or of § 376 HGB (German Commercial Code). We are also liable according to legal regulations if a customer is entitled to assert that his interest in the further fulfilment of the contract has ceased due to a default of delivery based on our fault. We are furthermore liable according to the legal regulations if the default of delivery is based on intentional or gross negligent contractual violation owing to us; we are responsible for a violation through our representatives or vicarious agents. If the default of delivery is not based on an intentional contractual violation owing to us the liability for compensation is limited to the foreseeable, typical damage. We are finally also liable according to the legal regulations if the default of delivery owed to us is based on the culpable
violation of an essential contractual obligation; however, in this case the liability for compensation is limited to the foreseeable, typical damage. For the remainder we are liable in case of a default of delivery for each completed week in default in terms of a flat-rate default compensation in the amount of 3 % of the value of the delivery, however to a maximum of 15 % of the value of the delivery. Further legal claims and rights of the purchaser remain reserved.
5. At the collection of goods not determined for the area of the common market of the European Union through the purchaser or his authorised representative the purchaser has to present us with the export declaration required under taxation law; otherwise the purchaser has to pay to us an amount respective of the VAT calculated from the invoice amount applicable for domestic deliveries.
6. The time of the dispatch ex works or ex storage is decisive for the compliance with delivery periods and –deadlines. They are deemed observed with the notification of readiness for dispatch if the goods cannot be dispatched in time due to no fault of our own.
7. Events of force majeure entitle us to delay the delivery by the duration of the impediment and an appropriate startup period. This also applies if such events occur during an existing delay. Force majeure includes currency-, tradepolitical- and other sovereign measures, strikes, lock-outs, operational disruptions (e.g. fire, machine- or roller defect, raw material- or energy deficiency), obstruction of traffic routes, delays in import-/customs handling as well as all other circumstances which, due to no fault of our own, significantly impede delivery or make it impossible. It is hereby irrelevant whether these circumstances occurred to us, the supplier or a pre-supplier. If the execution of the agreement becomes unfeasible for one of the contractual parties due to the aforementioned events or if in particular the execution of essential parts of the agreement is delayed by more than 6 months, this party may
declare the cancellation of the agreement.
V. Reservation of title
1. We reserve the title to all delivered goods (reserved goods) until the receipt of all payments from the supply agreement as well as the fulfilment of all claims, in particular also the respective balance payment demands which are owed to us in the context of the business relationship. This also applies for future and contingent claims, e.g. from acceptor bills and also if payments are made for specifically designated claims. The purchaser is obligated to treat the delivered goods with due care.
2. Treatment and processing of the reserved goods for us as manufacturer in terms of § 950 BGB (German Civil Code) occurs without obligating us. The treated and processed goods are considered reserved goods in terms of Nr.1. In the event of processing, linking and mixing of the reserved goods with other goods by the purchaser we are proportionally entitled to co-ownership in the new product at the ratio of the invoice value of the reserved goods to the invoice value of the other goods. If our ownership ceases due to the linking or mixing, the purchaser transfers to us now the property rights to the new component or item owed to him in the amount of the invoice value of the reserved goods and stores it for us free of charge. Our co-ownership rights apply as reserved goods in terms of Nr. 1.
3. The purchaser may only sell the reserved goods in the course of normal business transactions according to his normal business connections and if he is not in default, providing that the claims resulting from the on-selling according to Nr. 4 to 6 are transferred to us. The purchaser is not entitled to any other disposal of the reserved goods.
4. The claims from the on-selling of the reserved goods are now assigned to us in the amount of the invoice sum (including VAT) of our claims, which will become due to the purchaser from his customers or third parties through the on-selling, regardless of whether the goods were on-sold with or without processing. They serve as security to the same extent as the reserved goods. If the reserved goods are sold by the purchaser together with other goods not sold by us, the claim resulting from the on-selling is assigned in the proportion of the invoice value of the reserved goods to the other sold goods. In the event of the selling of goods to which we have proportional coownership rights according to Nr. 2 we are assigned co-ownership proportional to component owing to us. If the reserved goods are utilised by the purchaser for the fulfilment of a service- or service supply agreement, the claim from the service- or service supply agreement is assigned to us in advance to the same extent. The purchaser also
assigns to us such claims for the security of our claims, which arise against third parties through the connection of the purchased items with a property.
5. The purchaser is entitled to collect claims from the on-selling. Our authority to collect the claims ourselves remains unaffected. However, the direct debiting mandate granted to the purchaser ceases in case of revocation. We will only invoke our right of revocation if the purchaser does not comply with his payment obligations, is in default of payment, does not honour a bill of sale or if application for the initiation of bankruptcy-, composition- or insolvency proceedings has been made or in the event of a suspension of payment. In this case the purchaser is obligated to immediately inform his customers of the assignation and to provide us with the necessary information regarding the assigned claims and their debtors as well as all other information necessary for the collection and to hand over the
respective documentation. An assignation of claims from on-selling is prohibited unless it concerns an assignation by way of true factoring which is indicated to us and in which case the factoring-income exceeds the value of our secured claim. Our claim becomes due and payable immediately upon the crediting of the factoring-income.
6. The purchaser has to inform us immediately regarding levies of execution or other impediments through third parties. The purchaser bears all costs due for the abolishment of the intervention or the return transport of the reserved goods unless they are reimbursed by a third party.
7. If the purchaser is in default of payment or if he does not honour a bill of sale at the due date we are entitled, upon giving appropriate notice, to take back the reserved goods and to enter the operation of the purchaser for this purpose if required. The same applies if other circumstances occur which indicate a deterioration of the purchaser’s assets and which jeopardise our claim for payment. Our taking back the reserved goods is not based on a withdrawal from the agreement, unless we have explicitly declared this in writing. The impounding of the reserved goods by us is always to be considered a withdrawal from the agreement. Upon the return of the reserved goods we are entitled to their utilisation; the proceeds from the utilisation are to be offset against the purchaser’s obligations less appropriate processing costs.
8. If the realisable value of our securities exceeds the secured claims including collateral charges by a total of more than 10 % we are obligated to release the securities at our discretion upon the purchaser’s request.
VI. Grades, measures and weights
1. Grades and measures are determined according to the DIN norms and/or material sheets. If DIN norms or material sheets do not exist the respective Euro-norms apply and in lack of those the established commercial practice.
References to norms, material sheets or production certificates as well as statements regarding grades, measures, weights and usability are not assurances, neither are conformity declarations, manufacturer declarations and respective labels such as CE and GS.
2. The weighing conducted by us or our pre-supplier is decisive for the weights. The proof of weight occurs through the presentation of the weighing certificate. If permissible weights can be determined without weighing according to DIN. The increases and reductions common in the steel trade of the Federal Republic of Germany (theoretical weight) remain unaffected. The number of pieces and units etc. stipulated in the notice of dispatch are non-binding in case of goods calculated by weight.
Unless individual weighing does not commonly occur the respective total weight of the delivery applies. Variances compared to calculated individual weights are divided accordingly.
1. If an acceptance was agreed, it can only occur immediately upon the notice of readiness for acceptance at the supplier or our warehouse. The purchaser bears the personal acceptance costs; the factual acceptance costs will be invoiced to the purchaser according to our respectively applicable pricelist or the pricelist of the supplier.
2. If the acceptance does not occur in time or not completely due to no fault of our own we are entitled to dispatch the goods without acceptance or to store the goods at the expense and risk of the purchaser and charge him for same.
VIII. Dispatch, transfer of risk, packaging, partial delivery, continuous delivery
1. Unless stated differently in the order confirmation the delivery is agreed “ex works”. At the customer’s request we will provide transport insurance for the delivery; the costs hereto are borne by the customer.
2. We determine the mode and means of transport as well as the carrier and haulage contractor.
3. Goods reported as ready for dispatch according to the agreement have to be retrieved immediately; otherwise we are entitled to dispatch or store the goods at our discretion upon notice at the expense and risk of the purchaser and to invoice the amount immediately.
4. If the transport is impossible in the scheduled way or to the scheduled place in the scheduled time due to no fault of our own we are entitled to deliver via another way or to another place; the purchaser bears the incurred additional costs. The purchaser will be given prior opportunity to comment on the matter.
5. With the transfer of the goods to a carrier or haulage contractor, however at the latest at the departure from the storage or the supplier the risk, also the risk of a ceasing of the goods, is transferred to the purchaser for all transactions including pre-paid and free deliveries. We will only take out insurance at the request and the expense of the purchaser.
6. The goods are supplied unpacked and unprotected against rust. If customary in the trade we will supply packaged. We provide packaging, protection- and/or transport means according to our experience at the expense of the purchaser. Packaging material can be returned to our warehouse. We are not responsible for the purchaser’s expenses for the return transport or own disposal of the packaging.
7. We are entitled to partial deliveries at a reasonable extent. Excess- and short deliveries of the final amount customary in the trade are permissible.
8. At the execution of continuous deliveries we are to be provided with calls and type assortments of the approximate same monthly amounts; otherwise we are entitled to make our own determination at our discretion.
9. If the individual calls exceed the contractual amount in total we are entitled but not obligated to deliver the excess amount. We may charge the additional amount at the prices respectively applicable at the time of the call. We will demonstrate these to the purchaser upon request.
IX. Notice of defect, warranty and liability
We are only liable for defects of goods and the lack of assured characteristics according to the following regulations:
1. Defect claims of the customer are subject to the customer having properly complied with his examination- and reprimand obligations according to § 377 HGB (German Commercial Code). Defects which cannot be detected in time despite careful compliance with these obligations are to be reported in writing immediately upon their detection subject to immediate cessation of any treatment and processing.
2. Following the execution of an agreed acceptance of the goods by the purchaser a reprimand of defects, which were detectable at the agreed type of acceptance, is excluded.
3. If a defect of the subject of purchase exists the purchaser, at his discretion, is entitled to subsequent improvement in form of a remedy of defect or the supply of a new defect-free product. If the subsequent improvement fails the
purchaser, at his discretion, is entitled to demand withdrawal or a reduction.
4. In case of goods, which were sold as declassified material – e.g. so-called IIa-material -, the purchaser is not entitled to warranty claims regarding stated defects and such, which he should commonly expect.
5. We provide the same warranty for the subsequent improvement and replacement deliveries as for the original delivery or service.
6. We are liable according to the legal regulations if the purchaser asserts compensation claims, which are based on intent or gross negligence, including intent or gross negligence of our representatives or vicarious agents. If we are not culpable of intentional contractual violation the compensation liability is limited to the foreseeable, typically occurring damage.
7. We are liable according to the legal regulations if we have culpably violated an essential contractual obligation; however, in this case the compensation liability is limited to the foreseeable, typically occurring damage.
8. The liability based on culpable violation of life, body or health remains unaffected; this also applies for the mandatory liability according to the Product Liability Act.
9. Liability is excluded unless otherwise regulated above.
10. The limitation period for claims of defect is 12 months calculated from the date of transfer of risk.
11. The limitation period in case of a delivery recourse according to §§ 478, 479 BGB (German Civil Code) remains unaffected; it is 5 years calculated from the delivery of the defect item.
X. Compensation and statute of limitation
1. A further liability for compensation than provided for in IX. –regardless of the legal nature of the asserted claim- is excluded. This applies in particular to compensation claims resulting from culpability at the execution of agreement, other violations of obligations or due to tortious claims for the compensation of material damages according to § 823 BGB (German Civil Code).
2. If the liability for compensation against us is excluded or limited, this also applies regarding the personal liability for compensation of our employees, workers, colleagues, representatives and vicarious agents.
XI. Special conditions for EGKS (European Community for coal and steel)-products
Our sellers are obligated to comply with the conditions of Article 2 to 7 of the decision Nr. 30/53 and the decisions Nr. 31/53 and 37/54 of the Commission of the European Union in their respectively valid version regarding their own price lists and sales conditions for the resale in unchanged condition with the exception of sales from the warehouse.
XII. Place of fulfilment, place of jurisdiction and applicable law
1. If the customer is a merchant, our registered seat of business is the place of jurisdiction; however we may also sue the purchaser at the court of his place of residence. The laws of the Federal Republic of Germany apply. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
2. Place of fulfilment is our registered place of business unless stated otherwise in the order confirmation.
XIII. Final conditions
If one of the regulations in these general terms and conditions or in the context of other agreements is or becomes ineffective, the effectiveness of all other regulations or the agreement is not affected. Ineffective regulations are to be replaced with effective regulations closest to the intended purpose of the ineffective regulation.