General Terms and Conditions of Business
§ 1 - Clause 1 - General Provisions
1. The following Terms and Conditions of Business apply to all present and future offers made by us and contracts concluded with us. The customer´s General Terms and Conditions of Business are not recognised.
2. No contract shall come about until we have confi rmed the order in writing, or by delivery. Solely our confirmation of the order shall be authoritative for the terms of the contract, in particular the scope of the goods/services. Any amendments and additions require our confi rmation in writing.
3. We reserve the right to make technical or production-related changes to the pictures, drawings, weights and dimensions stated in our brochures and our offers provided that the goods/services to be delivered are not thereby signifi cantly altered and the change is reasonable for the customer.
§ 2 - Prices and Payment Terms
1. Our prices are set out in the price list applicable at the time the contract is concluded.
2. Our prices are stated ex works, including packaging but excluding dispatch and insurance. Statutory value added tax applies in addition. With contracts for more than € 1,300.00 (net) we shall assume the transport costs.
3. Our invoices are payable without deduction within 30 days of the issue of the invoice. If payment is made within 10 days of issue of the invoice we grant a 3 % cash discount provided that at the time of payment all invoices due earlier have been settled.
4. If the customer fails to meet the payment terms or if we have to consider our claims as being at risk because of the customer´s economic circumstances, we can rescind the contract. We are furthermore entitled to make processing of all of the customer´s orders dependent on a payment in advance or the furnishment of security. If the customer is in default of payment, we can immediately call in the total debt due to us.
5. The customer may only offset counterclaims that are undisputed, or counterclaims that have become fi nal and absolute, against our claims. Any right of retention under earlier or other transactions in connection with the business relationship is excluded. This does not apply to the right of retention based on undisputed claims or claims that have become fi nal and absolute.
6. Any bonuses, discounts and other reductions that we have granted on the prices applicable under Clause 2(1) as well as del credere terms and conditions are granted and paid by us only if all of the customer´s due payment obligations towards us have been fulfi lled at the time the bonuses, discounts or other price reductions as well as the del credere terms and conditions are granted and/or paid. Otherwise any and all claims thereto shall lapse.
§ 3 - Delivery and Acceptance
1. Any delivery dates shall be as agreed in the individual case. In the event of any amendments or additions to the scope of performance after conclusion of the contract any delivery dates and delivery deadlines shall be rendered invalid; they shall automatically be reasonably extended unless a special agreement has been reached.
2. A delivery deadline shall be deemed to have been met if the goods/services to be delivered have been handed over for transportation or they are ready for dispatch and notice thereof has been given.
3. If we cannot meet the agreed delivery date for reasons for which we are not answerable (stoppages, strike, lock-out, power supply problems, delays in the supply of essential raw and starting materials etc.), we shall inform the customer thereof without undue delay. The customer shall not be entitled to rescind. If in any such case it is not foreseeable that we will be able to render our goods/services within a reasonable period but in any event no later than within 4 months, both we and the customer can rescind the contract. The same shall apply mutatis mutandis if the background reasons still exist after the expiry of 4 months following our notifi cation. If the background reasons were already apparent to us at the time the contract was concluded we shall not be entitled to rescind.
4. In the case of orders to be called-off, the call-off quantity must be divided into calloff batches with fi xed call-off dates when the order is placed. The customer shall be obliged to call-off the goods within a reasonable period but no later than 9 months after entering into the contract.
§ 4 - The Passing of Risk
1. The risk of accidental loss and of accidental deterioration of the goods/services shall pass to the customer as soon as the goods are handed over for transportation. If the customer is in default of accepting the goods/services, the risk shall pass upon notifi cation that the goods/services are ready for dispatch. This shall apply irrespective of whether dispatch is made from the place of performance and who is to bear the transport costs. Upon request by the customer and at customer´s cost, we shall insure the consignment against theft, breakage, damage in transit, fi re and water damage as well as other insurable risks.
2. Part deliveries are permitted.
§ 5 - Reservation of Title
1. We shall retain title to goods delivered by us until all of our claims arising out of the business relationship with the customer have been satisfi ed in full.
2. The customer shall be entitled to sell the reserved goods in the ordinary course of business so long as the customer is not in default. Pledges or transfers of title as security are not permitted. The customer hereby already assigns the accounts receivable that arise out of the re-sale or for some other legal reason (insurance, tort) concerning the reserved goods to us in full as security. We revocably authorize the customer to collect the accounts receivable assigned to us in its own name but for our account. Upon request by us the customer shall disclose the assignment and hand over to us the information and documents necessary for collecting the accounts receivable.
3. If the reserved goods are bonded with other objects, the reservation of title shall continue in respect of the newly created article. We shall thereby acquire a share of the joint title, which share shall be in the proportion that the value of the reserved goods (invoice value) has to the value of the other processed articles. If one of the bonded articles is to be considered to be the main article, the customer shall transfer the joint title in the proportion that the value of the goods supplied by us (invoice value) has to the value of the other processed articles. As regards our share of the joint title, the customer shall keep the new article free of charge. If the reserved goods are resold as an integral part of the new article, the assignment in advance agreed in Clause 5(2) shall apply only in the amount of the invoice value of the reserved goods.
4. If the realisable value of the security to which we are entitled under the above provisions exceeds our claims by more than 10 %, we shall be obliged to release the security in the value that exceeds said amount.
§ 6 - Proprietary Rights and Copyrights
1. The drawings, samples, offers etc. submitted by us remain our property. The customer is prohibited from passing on the originals or copies of such documents to third parties. To the extent that drawings, samples, offers etc. are copyrightable, we expressly reserve the copyrights therein for ourselves.
2. When goods are produced according to the customer´s specifi cations, the customer must ensure that no intellectual property rights or other rights of third parties are infringed.
§ 7 - Warranty Claims
1. If goods/services rendered by us prove to be defective, the customer´s warranty claims shall be as provided by the statutory provisions subject to the proviso that the customer can initially only demand repair or a replacement delivery.
2. If subsequent performance fails, the customer can reduce the remuneration or rescind the contract without there being any need to set a deadline for this. In addition the customer can demand damages in accordance with Clause 8.
3. If, in the course of repair work, we exchange materials of the customer which we have delivered, we shall acquire title to the exchanged parts.
4. If the defect is due to a faulty third-party product, we shall be entitled to assign our warranty claims against our supplier to the customer. In that case a claim can be asserted against us under the above provisions only if the customer has asserted the assigned claims against the supplier in court.
5. The warranty period for defects in quality shall be 12 months following the passing of risk in accordance with Clause 4(1). If the goods supplied by us have been used for a building or structure in accordance with their usual manner of use and have caused said building or structure to be defective, the statutory warranty period shall apply. Claims for damages in accordance with Clause 8 shall remain unaffected.
§ 8 - Liability
1. We shall be liable for any culpable breach of our material contractual obligations in accordance with the statutory provisions. Material contractual obligations are obligations which characterise the typical purpose of the contract, the performance of which makes the proper implementation of the contract possible in the fi rst place, and compliance with which the other contract party may rely on. However, unless our conduct has been either grossly negligent or intentional, we shall be liable only for the foreseeable damage.
2. In all other cases we shall be liable only if damage has been caused intentionally or grossly negligently by one of our statutory representatives or by a vicarious agent. We shall be liable for damage arising out of any injury to life, body or health in accordance with the statutory provisions. Otherwise claims against us for damages arising out of breaches of duty are excluded.
3. Liability under the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
§ 9 - Final Provisions
1. The place of performance for all obligations of both contract parties shall be 47057 Duisburg, Germany.
2. The contractual relationship shall be governed by German law. The UN Convention on Contracts for the International Sale of Goods is excepted from this, i.e. does not apply.
3. The place of jurisdiction for all legal disputes in connection with this contract shall be determined by our registered offi ce (seat). The customer can - at our option -also be sued at the place where he has his registered office (seat).4. The invalidity of individual provisions of this contract shall not affect the validity of the remaining provisions and the continued existence of the contract. Provided it is not a general condition, the void provision shall be replaced by a regulation, the economic substance of which comes closest to that of the void provision. The same shall apply mutatis mutandis in the event of a lacuna.
General Terms and Conditions of Business
R.C. Mannesmann GmbH
Grabenstrasse 210, D-47057 Duisburg, Germany
Phone +49 (0) 203 363 544 - 0
Fax +49 (0) 203 363 544 - 22