General Terms of Sale, Delivery and Payment
1. General information
1.1 All of our deliveries and services, including those made or provided in the future, are exclusively subject to the general conditions set out below. We hereby expressly reject any contradictory purchasing conditions compiled by the customer. Our conditions do not apply to transactions with consumers as defined in §13 of the German Civil Code (BGB). These conditions also apply to all future transactions with the customer conducted in the context of the current business relationship.
1.2 Our quotations are provided without obligation. Agreements and orders become binding only on receipt of our written order confirmation (§126b BGB).
1.3 Business documentation printed from data processing software (e.g. order confirmations, invoices, vouchers, account withdrawals, payment reminders) is considered binding without a signature.
1.4 Any modifications or additions to a contract or these conditions, and/or the cancellation of a contract or these conditions, must be made in writing.
1.5 Where commercial clauses are agreed in accordance with the International Commercial Terms (INCOTERMS), the latest version of the INCOTERMS applies.
1.6 If necessary for business reasons, we may store and process customer data electronically subject to the provisions of data protection legislation (particularly §28 of the German Federal Data Protection Act [BDSG]).
2. Prices/terms and conditions of payment
2.1 Our prices are quoted EXW from our warehouse. Unless agreed otherwise, our prices exclude the costs of packaging, insurance, freight and VAT.
2.2 If the delivery date or the date of service provision is more than three months after the conclusion of the contract, we reserve the right – after giving prior notice to the customer and before delivering the goods or providing the service – to amend the price of the goods or service to reflect any general price changes outside of our control (such as exchange rate fluctuations, currency regulations, customs duty changes or significantly increased material or production costs) or due to changes made by our suppliers. Where deliveries are made or services are provided within three months, the price valid on the date on which the contract was concluded, plus any agreed supplements, applies. For framework contracts that include price agreements, the three-month period commences on conclusion of the framework contract.
2.3 Our prices are calculated based on standard freight and transport services, where such services are included as part of the price. Additional costs incurred due to difficulties or hindrances encountered during transportation must be borne by the customer. This also applies to incorrectly shipped orders, where we are not at fault for the error.
2.4 Taxes, consular costs, customs duties and other fees must be paid by the customer.
2.5 If the customer orders volumes in excess of the contracted amount, we are entitled, but not obliged, to deliver the additional volume.
2.6 Unless otherwise agreed, the customer must pay the agreed amount for the goods or services within 14 days of receipt and without deductions. Upon expiry of this period, the customer will be considered in default in accordance with §286, para. 2(2) of the BGB.
2.7 Payment is deemed to have been made when we can access the funds. Amounts owed may only be offset against undisputed or legally verified counter-claims. The customer is only entitled to withhold payments that relate to the same legal transaction. If the customer has a claim against us or one of our affiliated companies (e.g. arising from a counter-sale), we (or the named affiliated company) are entitled to offset our claims against the customer’s claims. This also applies even if cash payment has been agreed for one of the transactions and bill payment has been agreed for the other, or if the claims are due for payment at different times, in which case value dates will apply. In current payments, our right of offset is based on the balance amount.
Duktus litinové systémy s.r.o., Rudná, Czech Republic
2.8 We may demand partial or advance payments if the customer is ordering from us for the first time, if the customer is based abroad, if the goods are to be delivered abroad or if there is any reason to doubt that the customer will make full payment in a timely manner. If one of the aforementioned situations arises after conclusion of the contract, we reserve the right to revoke the agreed payment terms and demand immediate payment. Our other legal rights remain unaffected. In particular, we reserve the right to prohibit the further sale and processing of the supplied goods based on the retention of property clause in section 3, and demand the return of the goods or the transfer of the owned portion of the delivered goods at the customer’s costs; we may also withdraw our consent for collection of payment as described in section 3.4. The customer hereby grants consent for us to access its site and collect the delivered goods if one of the aforementioned situations arises. The collection of the goods does not represent withdrawal from the contract unless we expressly state otherwise.
2.9 Payments must be made exclusively to the bank account indicated on the invoice. Cheques and bills of exchange are accepted as provisional payment only; bills of exchange are accepted only after prior agreement. Bill of exchange fees and other payment charges must generally be paid by the customer and are due immediately.
2.10 If the customer is delayed in making payment, we may suspend the performance of our obligations until payment has been received, subject to the provision of written notice to the customer. In such situations, we also reserve the right to withdraw from the contract once a defined period has elapsed.
3. Retention of title
3.1 Sold goods remain our property until all sums owed in the business relationship have been paid.
3.2 If the customer processes or modifies the goods, our right of retention is extended to the new object. If the goods are processed, joined or mixed with goods from third-parties by the customer, we acquire partial ownership of the new object, corresponding to the invoice value of our goods in proportion to that of the other goods used by the customer to produce the new object at the moment of processing, joining or mixing.
3.3 If the goods subject to retention of title are joined or mixed with a main object owned by the customer or a third party, the customer hereby transfers its rights to the new object to us. If the customer joins or mixes the goods subject to retention of title with a main object owned by a third party subject to payment, the customer hereby transfers its right to payment from the third party to us.
3.4 The customer may sell goods subject to retention of title in the course of its normal business activity. If the customer sells the goods without obtaining payment of the full purchase price in advance or in instalments in return for deliveries, the customer must agree a retention of title clause with its customer in line with these terms and conditions. The customer hereby transfers its claims from such sales and any rights arising from agreed retention of title clauses to us. On our request, the customer must inform the purchasers of the transfer of such rights and provide us with the information and documentation required to exercise our rights in relation to the purchaser. The customer is authorised to collect payments due from re-sales in spite of the transfer of rights only if the customer has fully satisfied all of its obligations towards us.
3.5 If the value of the securities provided exceeds the value of our claim by more than 20 percent, we will release the securities of our choosing at the customer’s request.
3.6 If the retention of title arrangements described above are not valid or enforceable in the country in which the goods are located, the security for the retention of title regulations in the relevant country is deemed to have been agreed. The customer is required to take all necessary steps and to assist in any action required to substantiate and maintain such rights or securities.
4. Measures and weights
Images, measures and weight information in our catalogues, price lists, quotations and order confirmations are approximate and should only be considered binding when expressly marked as such. The applicable DIN/EN standards apply to measures and technical data. Where weight is used as the basis for calculation, the weight reading from our scales is taken as the leading value.
5.1 The delivery period commences on the date on which we issue confirmation of the order, but not before all the commercial and technical details of the order have been clarified.
5.2 If the customer fails to comply with its obligation to co-operate or other ancillary obligations in a timely manner, we reserve the right to extend the agreed delivery periods and deadlines accordingly, without prejudice to our rights arising as a result of the any delay in acceptance on the part of the customer.
5.3 Unless agreed otherwise, we will supply and deliver goods EXW (ex works) from our warehouse. The time of dispatch from the factory/warehouse is therefore taken as the basis for determining compliance with the agreed delivery periods/deadlines. If the goods cannot be dispatched on time due to reasons outside of our control or if delivery is delayed by the customer, compliance with the delivery period and deadline is based on the point at which the customer is informed that the goods are ready for dispatch.
5.4 The checks required prior to the use of the product must be agreed depending on the type of the product and the scope of its application. The costs for this process must be borne by the customer unless agreed otherwise.
5.5 We reserve the right to make partial deliveries. The additional costs arising as a result will be borne by us if the reason for the partial deliveries is not attributed to the customer.
5.6 Unless agreed otherwise, the haulage firm or transport company and the shipping service type will be selected at our reasonable discretion.
5.7 If delivery is delayed for reasons attributed to the customer, the transfer of risk takes place on the day on which the customer is informed that the goods are ready for dispatch.
5.8 Goods notified as ready for dispatch must be retrieved from the delivering plant immediately and at the latest within four days. If this requirement is not met, we may exercise our rights arising as a result of a delay in acceptance on the part of the customer; in particular, we may dispatch the goods or place the goods in storage, at standard cost and at the risk of the customer, at our discretion. The goods may also be placed in storage as described above if we are unable to ship the goods for any reason not attributed to us.
5.9 If visible damage occurs during transportation, the customer must note the damage in the transport documentation, immediately request a damage report from the relevant body and inform us of the issue.
5.10 If an agreed delivery or service deadline is exceeded for reasons attributed to us, the customer must set an appropriate period for us to make delivery or provide the service in writing. This subsequent fulfilment period must last at least three weeks. If the delivery is not made or the service is not provided within this subsequent fulfilment period, and the customer wishes to withdraw from the contract or demand compensation in lieu of performance as a result, the customer must expressly inform us of such intentions in writing and in advance, and set a further appropriate period for delivery or service provision. At our request, the customer is obliged to indicate, within a reasonable period of time, whether it wishes to withdraw from the contract and/or demand compensation in lieu of performance due to the delay in providing the delivery or service, or still wishes to receive the delivery or service.
6. Obstacles to delivery
We reserve the right, as a result of force majeure events, employment disputes, lockouts and official measures, to delay delivery for the duration of the obstacle and an appropriate start-up phase, or to withdraw, either fully or in part, from the part of the contract that has not yet been fulfilled. A force majeure event is defined as any situation outside of our control that prevents or significantly hinders delivery or the provision of the service, regardless of whether these circumstances affect us or one of our suppliers or agents.
7. Liability for defects
7.1 The products supplied by us comply with the applicable German regulations and standards. We make no guarantees in relation to compliance with other national regulations. If using the products abroad, the customer must independently verify that the products comply with the applicable legal requirements and standards and make any necessary modifications.
7.2 The customer has no right to assert a claim against us for defects in our delivery or service if the effect on the value or suitability of the delivery or service is only affected to a minor extent.
7.3 If there are defects in the delivery or service and the customer has met the investigation and notification requirements set out in §3 77 of the German Commercial Code [HGB], we will replace the product or rectify the defect at our sole discretion. The customer must grant us an appropriate period of at least 10 working days to provide a replacement or rectify the defect.
7.4 The customer may claim compensation for any costs incurred in the subsequent fulfilment of the contract, unless the costs have arisen due to the object of the contract subsequently being transported to a location other than the original place of delivery, except where such transportation is in line with the intended use of the object.
7.5 If the subsequent delivery fails, the customer may reduce the amount of remuneration due or withdraw from the contract. Withdrawal is permitted only where the customer provides advance notification in writing and after the expiry of a further appropriate period for delivery or service provision.
7.6 The customer has a right of recourse under §478 of the BGB only if the customer has not made any agreements with its buyer that extend beyond the scope of its basic legal rights in relation to claims for defects.
8.1 Unless indicated otherwise below, the customer holds no legal claim rights. We cannot be held liable for damage that does not directly affect the delivered object, and we accept no liability for loss of earnings or other loss of assets suffered by the customer. Where our contractual liability is limited or excluded, the same limitations or exclusions apply to the personal liability of our employees, representatives and agents.
8.2 The limitations of liability set out above do not apply if the damage arises as a result of wilful intent or gross negligence, in cases of personal injury, or where a claim for damages exists under product liability legislation. This also applies if we have provided a guarantee in relation to the quality of the contracted service that overrides the limitation of liability.
8.3 If we fail to meet any of our essential contractual obligations as a result of negligence, our obligation to pay damages is limited to the typically expected material damage in the circumstances. Essential contractual obligations are obligations which provide a legal basis for a claim on the part of the customer, which safeguard the content and purpose of the contract, which must be fulfilled as part of the due execution of the contract and the observance of which the contract partner relies on, and may rely on, regularly.
8.4 Beyond the aforesaid we shall only be liable to the extent of our insurance coverage insofar as we are insured against the damage which has been incurred and subject to payment of the insurance benefit.
8.5 In all other cases, we cannot be held liable for damages.
8.6 The liability exclusion/limitation does not apply if we are legally liable in the event of a fatality, physical injury or damage to health, or where we are required to accept liability for damage to private property for legal or other reasons.
8.7 The customer is prohibited from transferring the claims referred to in sections 7 and 8(1) to (3) to other parties.
9 Limitation of claim
9.1 The limitation period for claims arising due to defects in our delivery or service or for damages claims in cases where we can be held liable is one year. This limitation does not apply if §§438 para. 1(2) of the BGB (construction sites and materials for construction sites), 479, para. 1 (recourse claims) and 634a para. 1(2) of the BGB (claims for defects) prescribe longer periods of limitation, or in cases of fatal injury, physical injury or damage to health, in cases of wilful intent or gross negligence on our part, or in damages claims filed under product liability legislation.
10. Place of jurisdiction and applicable law
10.1 If the customer is a commercial customer, the place of jurisdiction is either the district court of Wetzlar or the regional court of Limburg, depending on the value of the claim. However, at our sole discretion, we may also select the court with jurisdiction over the customer’s location as the place of jurisdiction.
10.2 The contractual relationship is governed exclusively by German law. The United Nations Convention on Contracts for the International Sale of Goods is excluded.
11. Partial invalidity
If any provision in these general terms and conditions of sale, delivery and payment, or any provision in any other agreement between the customer and ourselves, is or becomes invalid, the validity of all remaining provisions and agreements remains unaffected.
Wetzlar, June 2016
Duktus (Wetzlar) GmbH & Co. KG