General Conditions of Sale Hochberger Stahl-Service GmbH (February 2008)
I. Application, Offers
1. These General Conditions of Sale (Conditions) shall apply to all present and future contracts with commercial buyers, with public legal entities as well as public trusts in regard to deliveries and other services, including contracts relating to the supply and manufacture of non fungible goods (wage cutting). In case of direct sales, the producer’s conditions shall exclusively apply. None of the Buyer's general conditions shall apply even if we do not expressly object to them again after their receipt.
2. Our offers are not binding to us. Oral agreements, promises, assurances and guaranties made or given by our sales staff shall not be binding unless confirmed by us in writing, this demand being met also in cases of telefax and e-mail transmission.
3. Any trade terms shall, in cases of doubt, be interpreted according to the Incoterms as amended from time to time. Unless otherwise agreed, we deliver according FCA (free carrier).
In case of direct sales, we shall be entitled to increase the agreed price, if and in so far as our supplier has increased the price earlier to the delivery of goods. This shall only apply if there was a period of more than three months between the conclusion of the contract and the delivery. In this case, the Buyer may withdraw from the contract. The withdrawal must be communicated to us immediately after the reception of our price increase.
III. Payment and Set-Off
1. Unless otherwise agreed, payment shall be made without cash discounts on the 15th of the month following our delivery in such a manner that we can dispose of the sum on the due date. Any payment transfer costs shall be borne by the Buyer. The Buyer may retain or set off any counterclaims only in so far as his claims are undisputed or have become legally binding.
2. The Buyer shall immediately request delivery of those goods which have been notified to him as ready for dispatch. Otherwise we are entitled, upon reminder, to ship such goods at the Buyer’s cost and risk or to store them at our discretion and to invoice them to the Buyer.
3. Should it become evident after the conclusion of the contract that payment is jeopardised by the Buyer’s lack in financial means, or should the Buyer be in default with a considerable portion of the amount due or should other circumstances arise which show a material deterioration in the Buyer's financial position after the conclusion of the contract, we shall be authorised to make use of rights under § 321 BGB (German Civil Code) and to make due any and all of our non statute-barred accounts receivable resulting from the same legal relationship.
4. Any agreement upon cash discount always relates to the invoiced value excluding freight and will only be granted if and in so far as the Buyer has completely paid all obligations due at the time of the discount. Unless otherwise agreed to discount periods shall begin with the date of the invoice.
IV. Delivery Performance and Dates
1. Our commitment to deliver is subject to our correct and timely self-delivery unless we are responsible for the deficient or late self-delivery.
2. Any confirmation as to delivery dates shall only be approximate. Any agreed delivery date shall be considered to be met if and in so far the goods have left the works or our warehouse at such time or date. If and in so far the goods fail to be despatched at the agreed time for reasons not attributable to us, the agreed delivery time shall be considered to have been met at the day on which the goods are notified to be ready for dispatch.
3. If the delivery is delayed by our fault, the buyer, after setting a reasonable period of grace, may withdraw from the contract if and in so far as the goods have not been delivered by that date. Damage claims for delay and non performance may be made in accordance with clause IX of these conditions.
V. Retention of Title
1. All goods delivered to the Buyer shall remain our property (Reserved Property) until all of the Buyer’s accounts resulting from the business relationship with him; in particular any account balances have been settled. This condition shall apply to any future claims and such cases the Buyer will affect payments on specifically designated claims. As soon as the Buyer has settled his accounts with us in full, he shall obtain title to those goods which were delivered to him before such payment was effected.
2. With regard to processing or manufacturing of the Reserved Property, we shall be deemed to be manufacturer within the meaning of § 950 BGB (German Civil Code) without committing us in any way. The processed or manufactured goods shall be regarded as Reserved Property within the meaning of clause V/1 of these Conditions. If the Buyer manufactures, combines or mixes the Reserved Property with other goods we shall obtain co-ownership in the new goods in proportion to the invoiced price of the Reserved Property to the invoiced price of the other goods. If, by such combining or mixing, our ownership expires, the Buyer herewith transfers to us any rights which the Buyer will have in the new stock or goods in proportion to the invoiced price of the Reserved Property, and he will keep them in safe custody free of charge. Our co-ownership rights shall be regarded as Reserved Property within the meaning of clause V/1 of these Conditions.
3. The Buyer may resell the Reserved Property only within the normal course of his business, in accordance with his normal business terms. This enclose that he is not in default of payment and that any rights resulting from such resale will be transferred to us in accordance with clause V/4 through V/6 of these Conditions, too. The Buyer shall not be entitled to dispose of the Reserved Property in any other way.
4. The Buyer hereby assigns to us any claims resulting from the resale of the Reserved Property. Such claims shall serve as our security to the same extent as the Reserved Property itself. If the Reserved Property is resold by the Buyer together with other goods not purchased from us, then any receivables resulting from such resale shall be assigned to us in the ratio of the invoiced value of the other goods sold by the Buyer. In the case of resale of goods in which we have co-ownership rights according to clause V/2 of these Conditions, the assignment shall be limited to the part which corresponds to our co-ownership rights.
5. The Buyer shall be entitled to collect any receivables resulting from the resale of the Reserved Property. This right shall expire if withdrawn by us, at the latest if the Buyer defaults in payment; fails to honour a bill of exchange; or files for bankruptcy. We shall exert our right of revocation only if and in so far as it becomes evident after the conclusion of the contract that payment resulting from this contract or from other contracts is jeopardised by the lack of Buyer's ability to pay. The Buyer shall - upon our request - immediately inform his customers of such assignment and to forward to us any information and documents necessary for collection.
6. Should the Buyer default in payment or should he fail to honour a draft we shall be entitled to take back the Reserved Property, to enter, for this purpose, the Buyer’s premises and to sell the Retained Property best possible by crediting the proceeds to the purchase price. The same shall apply, after the conclusion of the contract, should it become evident that payment resulting from this contract or from other contracts is jeopardised by the Buyer's lack of ability to pay. If we take back the Reserved Property, this shall not be regarded as withdrawal from the contract. The statutory regulations of the Insolvenzordnung (= German Insolvency Act) shall remain unaffected.
7. Should the total invoiced value of our collateral exceed the amount of the secured receivables including additional claims for interest, costs etc. by more than 50 %, we shall - upon the Buyer's request – release pro tanto collateral at our discretion.
VI. Grades, Sizes and Weight
1. Grades, sizes and classification of the goods shall be determined in accordance with the agreed standards or with the DIN and EN-standards effective at the time of the conclusion of the contract in case of absence of such agreement, or with trade practice and usage in case of absence of such standards. Any reference to such standards and to similar rules, to works certificates and similar inspection documents as well as reference to grades, classification, sizes, weights or usage of the goods shall not be regarded as warranty of fitness for a special purpose nor as a guarantee.
2. The weight of the goods shall be determined on our or our suppliers’ scales and shall be evidenced by the presentation of the pertinent weight check. The goods will be weighed “gross by net”. Where provided by law, the weight may be determined without weighing in accordance with the standards. We may calculate the weight without weighing on the basis of the applicable standards (“theoretical weight“) plus 2 1⁄2 pct (“commercial weight”). Any indications given in the delivery notes as to the number of pieces, bundles etc. are not binding, if and in so far as the goods are invoiced by weight. Where, in accordance with trade usage, the goods are not weighed piece by piece, the total weight of the delivery shall prevail. Any difference with regard to the calculated weight of the single pieces shall be proportionally allocated to them.
VII. Callable, Continuous and Partial Deliveries
1. When placing an order including a continuous supply, the Buyer shall divide the quantities and grades of the goods into approximately equal monthly shipments. Otherwise we shall be entitled to specify them at our own fair and just discretion.
2. If the specific calls for supply exceed the total contractual quantity, we shall be entitled, yet not committed, to deliver the surplus quantity and invoice it at the prices applicable at the time of the call or the delivery.
3. We shall be entitled to make partial deliveries at reasonable quantities. We may also exceed or reduce the agreed quantities as appropriate. Where quantities are indicated as “circa”, we may arise or lower the agreed quantity up to 10 pct.
VIII. Warranty Provisions
1. The Buyer shall immediately notify us in writing of any defects of the goods, at the latest seven days after their delivery. Defects which, even upon careful inspection, cannot be discovered within this period must be notified to us in writing immediately upon their discovery, at the latest before the elapse of any agreed or statutory warranty period. In such cases the Buyer must immediately suspend any processing or manufacturing of the goods.
2. If and in so far the Buyer’s claim for defects is justified and has been made in time, we may, upon our discretion, remedy the defect or deliver non-defective goods (“substitution”). Should we fail or decline the substitution, the Buyer may, upon the elapse of an adequate additional period of time set to us, withdraw from the contract or reduce the purchase price. In cases the defect is only minor or the goods have already been resold, processed or transformed, he may only reduce the purchase price.
3. We will reimburse the Buyer for his expenditures in connection with the substitution only in so far as such expenditures are reasonable and proportional to the purchase price of the goods, in no case more than 150 pct of the purchase price. We will only bear any further expenses such as for the mantling and dismantling of the defective goods in accordance with the rules of Section IX of these Conditions.
4. If the Buyer will not immediately give us the opportunity to inspect the defect and especially if he rejects - upon our request – an immediate placing of the goods or samples hereof to our disposal, he will loose all of his warranty rights.
5. No warranty shall be given to goods sold as declassified material with regard to such defects either specified in the contract or to those normally to be expected. Goods classified as “IIa-Ware” (“secondaries”) are not subject to any warranty.
6. Our further liability is subject to Section IX
IX. Restriction of Liability and Limitation Periods
1. Our liability for breach of contractual or extra-contractual obligations, in particular for non-performed or deferred deliveries, for breach of duties prior to the contract as well as for tortuous acts - including our responsibility for our managerial staff and any other person employed in performing our obligations - shall be restricted to damages caused by our wrongful intent or by our gross negligence and shall in no case exceed the foreseeable losses and damages characteristic for the type of contract in question.
2. The aforesaid restriction shall not apply to such cases where we breach our fundamental contractual obligations and where such a breach of contract will endanger the contractual purpose; it shall neither pertain to damages to life, to the body or to health caused by our fault nor to any cases where we have guaranteed certain characteristics of the goods. Nor shall such clause affect our statutory liability laid down in the Product Liability Act of 15/12/89. Any statutory rules regarding the burden of proof shall remain unaffected by the aforesaid.
3. Unless otherwise agreed any contractual claims arising to the Buyer’s against us by cause and in connection with the delivery of the goods become time-barred within a period of one year after the goods have been delivered. This limitation shall also apply to such goods which according to their normal purpose of use are used for constructional works related to real estate property and which have caused its defectiveness, unless this purpose of use has been agreed upon in writing. This restriction shall not apply to our liability resulting from breaches of contract caused by our wrongful intent or by our gross negligence; neither to damages to life, to the body and to health caused by our fault.
X. Place of Performance / Jurisdiction / Applicable Law
1. The place of performance for our deliveries shall be the supplying work in cases of ex-work deliveries, in all other cases it shall be our warehouse. The place of jurisdiction shall be Ludwigsburg or - at our discretion - at the Buyer’s seat.
2. All legal relationships between us and the Buyer shall be governed by the non standardised laws of the Federal Republic of Germany supplementing these Conditions, especially the German BGB/HGB, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UNCITRAL).
XI. Applicable Version In cases of doubt, the German version of these General Conditions of Sale shall apply.