General Terms and Conditions of DAUERSTAHL-GESELLSCHAFT Dohle & Co. KG
Version: 01 May 2021
I. Scope of application, Protective clause
1. These general terms of delivery and payment (“Terms of Delivery”) apply to all of our business relationships with enterprises in terms of Section 14 BGB [German Civil Code], legal persons under public law or special funds under public law (“Buyer”), in particular to contracts on the sale or supply of goods.
2. Our Terms of Delivery apply exclusively. We do not recognize conflicting, deviating, or supplementing business terms of the Buyer, unless we expressly agree to their applicability in writing.
II. Reservation of, among others, copyrights and intellectual property rights; Confidentiality
We reserve all property rights, copyrights and intellectual property rights to all materials and other objects that we provide to the Buyer, this means primarily catalogues, offers, price lists, cost estimates, plans, drawings, illustrations, pictures, calculations, product descriptions and specifications, manuals, samples, models and any other physical or electronic objects, documents, and information.
III. Conclusion of the agreement
1. Our offers are without any obligation and non-binding unless our offers are expressly designated to be binding or our offers contain a specific acceptance period. The order placed by the Buyer is a legally binding offer for the conclusion of a purchase agreement. We accept this offer by a written declaration (e.g., by our order confirmation or only by shipment / ready for collection notice).
2. Arrangements that deviate from our business terms require the written form to be effective.
3. DAUERSTAHL-GESELLSCHAFT Dohle & Co. KG does not give any guarantees whatsoever, except for guarantees that are expressly contractually agreed as guarantees.
IV. Pricing and payment terms
1. Unless agreed otherwise, our current net prices at the time of the conclusion of the agreement always apply plus statutory VAT, if applicable. “EXW Incoterms (2010)” (as it relates to our factory or the factory from which we deliver the goods in the individual case) apply to all of our deliveries, unless agreed otherwise, this is excluding insurance, transportation and packaging.
2. If a certain price was not agreed with the Buyer, the current list or production price on delivery (plus statutory VAT) will be invoiced. Decisive for the calculation of prices is our current price calculation or the quantity in units, metre or kilogrammes as determined at our factory or warehouse.
3. In the case of alloy surcharges, surcharges for increased costs or scrap surcharges, the surcharges published by the delivering factories on the delivery date apply.
4. Our invoices are due and payable in EUR (€) within 14 days after the invoice date without any deduction. Upon expiry of the payment term, the Buyer is automatically in default of payment without a reminder being required.
5. We have the right to refuse performance of our outstanding services under a contractual relationship, if after the conclusion of the agreement it becomes apparent (e.g., by filing for insolvency), that our claim for payment under the relevant contractual relationship is at risk due to the Buyer’s lack of solvency. Our right to refuse performance does not apply if payment is effected or security is provided for the payment. We have the right to set the Buyer a reasonable period, within which the Buyer is obliged to effect payment or provide security for the payment against the simultaneous (Zug-um-Zug) provision of our services. We have the right to withdraw from the agreement if the set period expires without success.
V. Reservation of title
1. All goods delivered by us to the Buyer remain our property until all of our claims arising from the business relationship with the Buyer are paid in full (“Goods subject to Reservation of Title“). This applies in the same manner to objects that succeed (substitute) any delivered goods according to the following provisions; these objects are also subject to the reservation of title.
2. The Buyer undertakes, as long as title has not passed to the Buyer, to treat Goods subject to Reservation of Title with due care and to adequately insure these goods at its own expense against fire, water and theft damages such that the replacement value is covered.
3. The Buyer may not pledge or assign by way of security the Goods subject to Reservation of Title as long as title has not passed to the Buyer. Until title has passed in full to the Buyer, the Buyer is obliged, in the event of attachments or other seizures by third parties to the Goods subject to Reservation of Title, to make these third parties clearly aware that these goods are our property and to promptly inform us in writing, so that we are in a position to pursue and claim our rights to our property.
4. The Buyer has the right to use, process, transform, integrate, mix, or sell the Goods subject to Reservation of Title in the normal course of business, unless and until an application to open insolvency proceedings against the Buyer’s assets has been filed or the Buyer lacks solvency.
5. If the Goods subject to Reservation of Title are processed or transformed by the Buyer (Section 950 BGB German Civil Code), this is always carried out for us as the manufacturer in our name and for our account. We directly acquire ownership to the new created object or – if materials of several owners are used for the processing or transformation – co-ownership (Fractional Ownership) in the new created object proportionate to the ratio between the value of the Goods subject to Reservation of Title (gross invoice value) and the value of the other processed / transformed materials at the time of processing / transformation.
6. The Buyer my not pledge or assign Goods subject to Reservation of Title by way of security to third parties. The Buyer has the right to use the Goods subject to Reservation of Title and to resell the Goods subject to Reservation of Title in the normal course of business, as long as the Buyer is not in default with its payment obligations. Any claims against the Buyer’s business partners that arise from such resale are, hereby, assigned as security by the Buyer to the seller. This provision also applies in those cases where the respective claims result from other legal grounds (in particular claims arising from tort and claims to insurance benefits). This assignment also includes all current account credit balances, if applicable. In the case of co-ownership, the Buyer, hereby, assigns its claims to us according to our respective proportionate co-ownership share. We, hereby, accept the aforementioned assignments.
7. The Buyer is, hereby, authorised to collect the claims assigned to us in its own name. This authorisation may be withdrawn at any time. Our right to directly collect these claims remains unaffected from the above provision. We will, however, refrain from directly collect such claims and we will not withdraw the authorisation to collect such claims, as long as and to the extent the Buyer properly meets its payment obligations towards us, is not in default in payment and as long as an application to open insolvency proceedings against the Buyer’s assets has not been filed and the Buyer does not lack solvency. If any of the aforementioned cases occur, the Buyer is obliged to disclose to us the assigned claims and the respective debtors, inform the respective debtor of the relevant assignment and to deliver to us all documents and provide to us all information that we need for the enforcement of our claims.
8. If we rescind from the agreement in accordance with the statutory provisions due to the Buyer’s conduct in breach of the agreement, we are entitled to demand that the Buyer returns the Goods subject to Reservation of Title. We declare rescission of the agreement, at the latest, by our demand to return the goods. Incurring transportation cost for the return of the goods are borne by the Buyer.
VI. Delivery deadline / dates
1. Times and dates for the delivery of products or the provision of services (“Delivery Periods and Deadlines”) provided by us are to be understood as approximations unless firm deadlines and dates are expressly committed or agreed. Our Delivery Periods and Deadlines are subject to proper and timely delivery by our suppliers.
2. A Delivery Period or Deadline for goods delivery is met, if the Buyer received our ready for collection notice on or before the expiry of the Delivery Period or Deadline or – if shipment is agreed – we transferred the goods to the transport person or could have transferred the goods in the case of their non or not on time appearance.
3. If we become aware that a Delivery Period or Deadline cannot be met, we will endeavour to promptly inform the Buyer of this delay and, if possible, communicate a probable new Delivery Period or Deadline.
4. We are not liable for impossibility pr delay of performance, to the extent this is caused by force majeure or any other events that were not foreseeable at the time of the conclusion of the agreement and for which we are not responsible (e.g., disruptions of operation of any kind, fire, natural disasters, weather, flooding, war, insurrection, terrorism,, transport delays, strikes, lawful lock-outs, lack of workers, energy or raw materials, delays in the issuance of any required official approvals, official / governmental measures).
5. In the case of events in terms of Paragraph 4 Delivery Periods or Deadlines are automatically extended or postponed by the time period such event lasts plus a reasonable start-up period. Furthermore, we have the right to withdraw from the agreement if such events render the delivery of products or the performance of services significantly more difficult or impossible and the duration of these events is not merely temporary in nature. In those cases where acceptance of delivery or service is unreasonable to the Buyer due to the delay caused by such an event, the Buyer has the right to withdraw from the agreement by providing a written notice without undue delay; unreasonableness is to be assumed, if the probable new Delivery Deadline is more than thirty (30) calendar days after the originally scheduled Delivery Deadline or cannot be foreseen.
VII. Shipment
1. Goods are delivered unpacked, unless agreed otherwise or a certain packaging is customary. Packaging is to be returned carriage paid (boxes, container, pallets), unless carriage is separately invoiced.
2. Goods that are notified “ready for shipment” at the agreed date must be called off immediately. If the Buyer is in delay of acceptance, fails to perform a necessary cooperation activity or our delivery or service is delayed for other reasons for which the Buyer is responsible, we have the right to invoice compensation for the damage arising from this, including our additional expenses (e.g., in particular storage cost).
VIII. Transfer
Upon transfer of the goods to the shipping company or carrier, the risk also of accidental loss passes to the Buyer. This also applies to fob and cif contracts or transactions.
IX. Tolerances and other variations, excess and shortage quantities
1. Variations in measurement, weight and quality are permissible in accordance with the European Standards (ES) for steel and iron or based on our production capabilities or trade practice.
2. If weights are the calculation basis for our deliveries and services, these weights are ascertained by us or the weigh masters of our delivery factories. On request, proof is furnished through presentation of the weigh slips. The total weight is decisive for invoicing in any case. We do not give any warranty for the number of units or bundles indicated on the invoice, as long as the indicated total weight matches the contractually agreed total weight.
3. Delivery of excess and shortage quantities of up to 20% of the delivery quantity is deemed to be agreed, because goods are produced based on the output of the primary material.
X. Defects, delivery of nonconforming goods
1. If acceptance is agreed, notice of defects is excluded after the acceptance of goods if the defects could have been identified within the agreed kind of acceptance or at least had to be identified within the proper course of business. The same applies, if the Buyer does not conduct the agreed acceptance or does not conduct the agreed acceptance timely or not completely. If acceptance by a third party is agreed (e.g., Germanischer Lloyd or TÜV [German Association for Technical Inspection]) or customary, we do not give any warranty for this acceptance, in particular not for the timely conduct / completion of the acceptance.
2. Unless acceptance is expressly agreed, the Buyer is obliged to inspect delivered goods without undue delay after delivery at the Buyer’s site or at the site of a third party designated by the Buyer and promptly notify us in writing of any defects. Sections 377, 381 HGB [German Commercial Code] and supplementing the provisions in this Paragraph apply to this procedure (notice of defects). To save time, a notice of defects only requires the written form in terms of a Fax or an e-mail. To meet the criteria of immediacy (lack of delay), a notice of defects must be sent at the latest within five (5) working days after delivery of the goods to the place of delivery (Section 377 (1) HGB [German Commercial Code]) or – if the defect is a defect that was not recognisable during inspection (Section 377 (2) and (3) HGB [German Commercial Code]) – at the latest within three (3) working after the discovery of the defect. If, in the case of a normal use of the goods, this last-mentioned defect would have been discovered at an earlier point in time than the actual discovery point in time, already this earlier point in time is decisive for the commencement of the aforementioned notice period. The inspection of the goods after delivery to the place of delivery may not be restricted to the outward appearance and the shipping documents but must also include an adequate quality and functionality inspection with at least reasonable random sample tests. If the Buyer fails to conduct a proper inspection or give a proper notice of defects, our warranty obligation and other liability for the relevant defect is excluded.
3. At our request, complained about goods must be promptly returned to us, initially at the Buyer’s expense. If the complaint is justified, i.e., in the case of defectiveness, we will repay the Buyer the cost for the most favourable transport route; this does not apply to the extent the costs are increased, because the goods are located at another location than the location of its intended use.
4. The Buyer is obliged to allow us adequate required time and opportunity to examine notices of defects and other complaints, as well as for subsequent performance. This also includes to provide us with the complained about goods for examination purposes or – in the case the goods are fixed installed or fixed locally in a similar manner – to provide us access to the complained about goods.
5. If a notice of a defect is given timely, the Buyer is entitled to the statutory warranty rights, subject to the proviso that the statutory warranty rights are time-barred after one year.
XI. Liability
1. We are liable in accordance with the statutory provisions in the case of intent, gross negligence, culpable injury to life, body or health, assumption of a guarantee or a procurement risk and in the case of liability under the German Product Liability Act.
2. In addition, we are also liable in the case of a slight negligent violation of material contractual obligations, i.e., those obligations, whose fulfilment is a requirement for the proper performance of the agreement and on whose compliance the Buyer routinely relies on and may rely on. In this case, the amount of our liability is, however, limited to the typical and at the time of the conclusion of the agreement foreseeable damage. Any additional liability is excluded.
3. The above provisions also apply to the extent a damage is caused by our executive bodies, legal representatives, employees, or other vicarious agents.
4. To the extent the above provisions exclude or restrict our liability, this also applies to the personal liability of our executive bodies, legal representatives, employees, or other vicarious agents.
5. In the case of a delay or default of our deliveries and services, we are also not liable, if the delay is caused by events, which we could not influence otherwise through the application of reasonable effort. This applies, in particular, to cases of force majeure (e.g. war, official measures as well as disruptions of operation not caused by our fault) and other events or circumstances beyond our sphere of control and which we cannot prevent through the application of reasonable care. We will inform the Buyer of the occurrence of such events without undue delay and take appropriate adequate measures to shorten the duration of the event.
XII. Place of jurisdiction
If the party to the agreement is a businessman in terms of the German Commercial Code [HGB], entrepreneur in terms of Section 14 German Civil Code [BGB] or a legal person under public law or a special fund under public law, the exclusive and international place of jurisdiction for all disputes arising from or in connection with these general terms of delivery and payment, as well as the contractual relationships with us, is our seat.
XIII. Miscellaneous
1. Partial deliveries are permitted.
2. In the case of export deliveries, we do not assume any liability, if intellectual property rights of third parties are infringed by our products.
3. The law of the Federal Republic of Germany applies under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
4. Claims against us, except for pecuniary claims, may only be assigned to third parties after we provided our written approval. Offsetting or the assertion of a right to retention with counterclaims is excluded, unless the Buyer’s claims for offsetting or retention are uncontested or recognized by declaratory judgement.
5. To the extent provisions of these Terms of Delivery do not become a component of this agreement or provisions of these Terms of Delivery are void or ineffective, the content of this agreement is governed by the statutory provisions (Section 306 (2) BGB [German Civil Code]). If, however, appropriate statutory provisions are not available to address a certain matter (where the agreement is silent), and a supplementing interpretation of this agreement does not have priority or is not possible, the parties to this agreement will replace the provision that did not become a component of this agreement or the void or ineffective provision, by an effective provision that most closely reflects economically the original provision and which has as little effect on this agreement as possible.