General terms and conditions
General Conditions for Purchasing
of Buderus Edelstahl Band GmbH in Wetzlar
General Terms and Conditions of Sale, Delivery and Payment
of Buderus Edelstahl Band GmbH in Wetzlar
I. General
1. All of our transactions and services – as well as future and follow-up orders stemming from an ongoing business relationship – including the sale of goods and services, all proposals and consulting services and any and all other ancillary services, are subject to these General Terms and Conditions of Sale, Delivery and Payment in their respective valid version. These terms are binding in all transactions with the buyer and shall supersede any and all other contracts, documents, proposals or terms and agreements supplied by the buyer. With the conclusion of the contract with BUDERUS, at the latest, all these General Terms and Conditions of Sale, Delivery and Payment shall be deemed to have been accepted by the buyer.
2. Unless otherwise agreed, our offers are subject to change without notice. All quotations, contracts, purchase orders and all other agreements from BUDERUS (including ancillary agreements) must be confirmed in writing by BUDERUS in each individual case, particularly if they diverge from our General Terms and Conditions. BUDERUS is only bound to purchase orders which it has confirmed in writing; our written order confirmation, if provided, is authoritative as to the content and scope of our commitments. Otherwise, our delivery notes are authoritative. A counterconfirmation from the buyer which contains additions, limitations or other modifications does not constitute an acceptance. Silence or inactivity on the part of BUDERUS does not amount to acceptance.
3. All mutual declarations must be concluded in written form. Product characteristics of delivered goods shall only be deemed warranted insofar as BUDERS has explicitly declared the warranty in writing.
II. Prices
1. All prices, unless specifically set forth in a contractual agreement between BUDERUS and the buyer, shall be the price applicable to the supplied materials on the day of delivery, as set forth on the BUDERUS published price list in its respective applicable version.
2. Prices are ex-factory or ex-distribution centre and exclusive of value added tax, pursuant to the terms of the purchase contract, plus value added tax at the rate prevailing on the day of delivery, provided that a value added tax exemption does not apply. Additional costs will be added, such as packing costs if this is customary commercial practice pursuant to section XI (5) or expressly agreed to, shipping costs, possible alloy surcharges and additional charges arising from changes in the cost of components and raw materials as well as changes in exchange rate parities. If packing is charged, BUDERUS will reimburse two thirds of the amount charged for the packing, upon receipt of the packing, postage/shipping costs paid by the buyer, at the factory or distribution centre, as long as the packing material is returned in perfect condition.
3. Contracts concluded in a non-EMU currency shall be converted based on the currency buying rate published by the Deutsche Bundesbank on the day of the order confirmation; the exchange risk shall be borne by the buyer. In the event that the value of the foreign currency has fallen relative to the Euro by the day of payment, the purchase price shall be increased accordingly.
4. BUDERUS’ prices presume normal freight conditions and normal, unhindered transport conditions. Any additional costs arising through any obstruction and/or impediment of freight and/or transport conditions shall be borne by the buyer, even if they arise from the nature of the goods; the same shall apply in the case of dead freight.
III. Payment conditions
1. All payments are net cash payable by the 15th day of the month immediately following delivery of the goods and shall be made in cash or via transfer to Wetzlar with all charges paid by the buyer, even in the event that a complaint has been made. The buyer waives any right he may have to set off or retain any amounts against the amounts charged, inasmuch as it is permitted by law and inasmuch as the receivable which is offset is not contested or recognized by declaratory judgement according to item 7. Payments shall be made in Euro and shall only be deemed to have been made from the day on which BUDERUS has the payment amount at its disposal.
2. BUDERUS shall accept discountable, duly taxed bills/drafts and cheques only if this has been expressly agreed upon in writing. No guarantee for the timely presentation of the bill/draft or cheque and for making a protest is provided herein. Discount charges shall be calculated from the due date of the invoice amount. Bills/drafts and cheques, including any expenses associated with this form of payment, shall not be credited until the date the funds are available to BUDERUS. Payments made with convertible bills or drafts/cheques shall not detract from our rights of retention under Section IV.
3. Payments not received and credited on the due date, and overdue payments, as stated herein or in the terms of the purchase contract, shall be subject to interest and charges at the bank rate for overdraft facilities calculated from the due date or at a minimum rate of 8% per annum above the base rate of the European Central Bank ruling on the last calendar day of the previous half-year plus value added tax at the respective applicable rate. In the event of default, the buyer is obligated to compensate all costs related to payment reminders and judicial enforcement, including all legal fees resulting from the consultation of an attorney-at-law.
4. BUDERUS is not bound to the performance of the contract if the buyer fails to perform his contractual obligations and, in particular, does not pay outstanding invoices.
5. If the payment conditions are not complied with, a bill/draft or cheque is not honoured, or BUDERUS becomes aware of circumstances which bring the riskiness of a provision of credit to light, or an application for the initiation of bankruptcy proceedings is made, or the buyer makes an out-of-court proposal for a composition to his creditors, all invoices and debts, including invoices which are not yet due or have been deferred, shall become due immediately, regardless of the term of any accepted or credited bill. BUDERUS shall then be entitled to require advance payment for any outstanding goods and services, and/or, after an appropriate period of grace, to withdraw from the contract and demand damages. BUDERUS, at its sole discretion based on the changed financial/credit worthiness of the buyer, may also prohibit resale and processing of the goods supplied, and/or demand their return and/or the transfer of their direct ownership back to BUDERUS, at the expense of the buyer, and revoke the collection authorisation as provided in Section IV (7). The buyer hereby authorizes BUDERUS to access the buyer's premises in such cases, and to retrieve the goods supplied.
6. If difficulties should arise in transferring the invoice amount to the Federal Republic of Germany, for whatever reason, the resultant harm and costs shall be chargeable to the buyer. If the manner of payment agreed upon cannot be complied with, the buyer shall be obligated to make the payment in the manner specified by BUDERUS.
7. On the basis of the powers granted to BUDERUS by companies associated with BUDERUS in the meaning of the German Stock Corporation Law (Aktiengesetz), BUDERUS shall be entitled to offset all claims against the buyer to which it or companies associated with it are entitled, against all claims to which the buyer is entitled against BUDERUS or companies associated with BUDERUS in the meaning of the German Stock Corporation Law, regardless of the legal grounds. A setoff on the part of the buyer against other claims of the buyer which are not contested or are recognised by declaratory judgment, as well as rights of retention and any contract repudiation rights, shall be excluded.
IV. Retention of title
1. All goods supplied shall remain the property of BUDERUS and titled to BUDERUS (goods subject to retention of title) until all claims arising from the business relationship with the buyer have been satisfied, including all costs, interest, and interest on arrears to which BUDERUS is entitled, regardless of the legal grounds. This also applies to payments effected on specially designated receivables. If the buyer fails to pay the purchase price or otherwise does not comply with the terms of the contract, BUDERUS shall be entitled to enter the production facilities and properties of the buyer without prior notice and to remove and take possession of the delivered goods subject to retention of title at the expense of the buyer, without such action’s constituting a withdrawal from the contract. At its own discretion, BUDERUS may, however, obligate to buyer to return the goods at its own expense instead. In this case, BUDERUS is only obligated to redeliver the goods to the buyer after the performance of contractual obligations has been ensured, in particular after the payment of the purchase price including any accrued reminder and collection charges as well as legal fees has been effected.
2. The processing of goods that are subject to retention of title shall be carried out for BUDERUS as the manufacturer in the meaning of § 950 of the German Civil Code (BGB), without obligating BUDERUS. The processed goods shall be deemed to be subject to retention of title as defined in item 1. When goods subject to retention of title are processed, combined, milled or mixed with other goods by the buyer, BUDERUS shall be entitled to joint ownership of the new item to the extent of the invoice value of the goods subject to retention of title, as a proportion of the invoice value of the other processed, combined or mixed goods. If BUDERUS’ ownership lapses or changes in nature because of combining or mixing, then the buyer hereby transfers to BUDERUS the proprietary rights to which it is entitled to the new assets or goods, to the extent of the invoice value of the goods and materials subject to retention of title by BUDERUS, and the buyer shall safeguard BUDERUS’ ownership without charge.
The co-ownership rights created hereafter shall be deemed to be goods subject to retention of title as defined in item 1.
3. The buyer may sell the goods subject to retention of title only in the course of normal business, in accordance with its normal terms and conditions, and as long as the buyer is not in default and fulfils all its obligations arising out of the business relationship with BUDERUS on time, provided, however, that the buyer makes an agreement on a retention of title with the buyer’s purchaser, and that the claims arising from the resale are transferred to BUDERUS in accordance with items 4 to 6. The buyer shall not be entitled to dispose of the goods subject to retention of title in any other way; in particular, the buyer may neither pledge goods subject to retention of title nor assign them as security for a debt. In the event of interventions of third parties in BUDERUS’ ownership rights, the buyer shall take all measures necessary to ensure the rights of BUDERUS.
4. All claims and rights of the buyer arising from the resale of goods subject to retention of title are hereby assigned to us. They shall serve as security to the same extent as the goods under retention of title. BUDERUS herewith accepts this assignment.
5. If goods subject to retention of title by BUDERUS are sold by the buyer together with other goods not sold by BUDERUS, then the assignment of the claim arising from this resale shall extend only to the invoice value of BUDERUS’ goods so sold.
If goods are sold in which BUDERUS would have joint ownership shares as set out in item 2, the claim shall be assigned in the value of these joint ownership shares.
6. If the buyer uses the goods subject to retention of title to perform a contract for work or services, then items 4 and 5 of these General Terms and Conditions shall apply to the claims arising from said contract accordingly.
7. The buyer shall be entitled to collect claims arising from the sale pursuant to items 3 and 6, unless and until this right is revoked by BUDERUS, which shall be permissible at any time. BUDERUS shall exercise the right of revocation only in the cases indicated in section III (5). The buyer shall under no circumstances be authorised to assign the claims. At BUDERUS’ request, the buyer shall be obligated to notify its purchaser immediately of the assignment to BUDERUS, unless BUDERUS does so itself, and to give BUDERUS the proceeds and documents necessary for collection.
8. If the value of the existing collateral exceeds the existing securities by more than 20% in total, then BUDERUS shall be obligated, at the request of the buyer, to release collateral of BUDERUS’ choice to that extent. The buyer shall be obligated to notify BUDERUS immediately of any pledge; attachment proceedings by third parties on goods subject to retention of title, on claims assigned to BUDERUS or on other securities; or other impairment by third parties, and to deliver to us, together with the notification, any and all documents necessary for an intervention.
9. If the retention of title or the assignment is not legally effective under the law applicable to the goods, then the security corresponding to the retention of title or the assignment in this legal context shall apply.
If this requires the assistance of the buyer, the buyer shall take all measures necessary to substantiate and maintain such rights.
V. Rights and obligations
Rights and obligations arising from the contractual relationship may be transferred to third parties only with BUDERUS’ written consent.
VI. Place of performance and jurisdiction
The place of performance for the buyer's payment liability and the place of jurisdiction for both parties for all disputes, including legal proceedings relating to a bill of exchange or a cheque, shall be Wetzlar, Germany. The place of performance for all other contractual obligations shall be Wetzlar, Germany. In the event of a dispute, BUDERUS also has the right to take legal action against the buyer at the buyer’s place of jurisdiction. BUDERUS may, at its sole discretion, institute legal proceedings at the local court (Amtsgericht), regardless of the value of the issue under dispute.
VII. Delivery periods and delivery dates
1. The delivery period shall start from the date of BUDERUS’ order confirmation, but not before all details of the order have been fully clarified, the letter of credit – if agreed upon – has been opened, and any official certificates required by domestic or foreign authorities have been provided. Delivery periods and delivery dates shall relate to the point in time at which time the goods are dispatched from the factory. If the goods cannot be dispatched on time through no fault of BUDERUS, the delivery periods and dates shall be deemed to have been met upon notification of readiness for dispatch. Without prejudice to BUDERUS’ rights arising from default by the buyer, the delivery periods shall be extended by the length of time by which the buyer is in default of its obligations to BUDERUS under this or other contracts. This shall apply in accordance with the respective delivery dates.
2. If BUDERUS defaults on performance, the buyer may withdraw from the contract after the expiry of a reasonable period of grace as set by buyer, insofar as the goods have not been made ready for dispatch by the end of the extended period. In the event of partial default, the buyer shall be entitled to withdraw from the entire contract if partial performance does not serve the buyer’s interests.
VII. Force majeure and other terms and conditions of sale
Occurrences of force majeure shall entitle BUDERUS to postpone delivery for the duration of the impediment plus a reasonable start-up time. If implementation of the contract becomes unreasonable for one of the parties, that party may, to that extent, withdraw from the contract, upon sufficient written notice to the other party.
Force majeure shall include, for example, without limitation, the case of sovereign action relating to currency, trade policy or other matters, strikes, lockouts, production outages (e.g. fire, machine or roller breakdown, raw material or energy shortage), failure of suppliers to deliver, other unforeseeable and unavoidable serious occurrences, and obstructions of traffic routes, regardless of whether these circumstances arise in BUDERUS’ operations or those of one of its suppliers.
IX. Inspection
1. If inspection prior to acceptance has been agreed upon, it may be carried out only ex-factory immediately after notification of readiness for delivery. The buyer shall bear the personnel costs for inspection; the substantive inspection costs shall be charged according to our price list as amended.
2. If inspection does not take place on time or completely for reasons for which the buyer is responsible, BUDERUS shall be entitled to dispatch the goods without inspection, or to store them at the buyer’s expense and at the risk of the buyer – in the open air if necessary – with no liability on the part of BUDERUS. The goods shall be deemed to have been inspected upon dispatch or when placed in storage and the buyer is then in default in accepting the delivery.
X. Dimensions, weight and quality
1. Deviations with respect to dimensions, weight and quality shall be permissible in accordance with DIN or accepted practice; any other deviations shall require a special agreement. If calculated weights are to be decisive, the customary tolerance shall be applied.
2. The weights shall be determined by BUDERUS’ weighers, and shall be the defining values on which the calculation is based. The weight shall be verified by presentation of the weighing slip. Calculations shall be based on the total weight of the consignment, regardless of the means of transport. No warranty is given for any number of units, bundle quantity or suchlike quoted in the invoice. Differences from the calculated individual weights shall be distributed among them pro rata.
XI. Dispatch and passage of risk
1. BUDERUS shall determine the freight forwarder or carrier.
2. When notification has been given that material is ready for dispatch, said material must be collected from BUDERUS’ premises immediately, but at the latest within ten days. BUDERUS shall otherwise be entitled to dispatch the material at its discretion or to assert the rights under item 3.
3. If there is a delay in loading or transporting the goods due to reasons for which BUDERUS is not responsible, then BUDERUS or its authorised agents shall be entitled, but not obligated, at the cost and at the risk of the buyer, with no liability for BUDERUS, at its discretion, to store the goods (in the open air if necessary), to take all measures deemed appropriate to preserve the goods, and to invoice the goods as if delivered.
4. If transport is impossible by the means provided or to the place intended in the time provided, without any fault on BUDERUS’ part, BUDERUS shall be entitled to deliver the goods by another route or to another place; the resultant costs shall be borne by the buyer. The buyer shall be given an opportunity to respond prior to transport.
5. The material shall be delivered unpacked and not protected against rust. BUDERUS delivers in packed form if this is customary commercial practice. BUDERUS shall make provision for packing, protection and transport in accordance with its experience, at the expense of the buyer and excluding any liability for BUDERUS.
6. If there is any delay in BUDERUS’ sending shipping documents and other documentation that it is required to provide after dispatch, BUDERUS shall be liable for the consequences only in the case of gross negligence.
7. In the event of transport damage, the buyer shall immediately arrange to have an inspection report made by the department responsible.
8. Upon delivery of the goods to the freight forwarder or carrier, but at the latest upon their leaving the factory or the distribution centre, any risk shall pass to the buyer, even if BUDERUS is responsible for delivery. If the shipment or delivery is delayed at the buyer’s request or for any other reasons for which BUDERUS is not responsible, the risk shall pass to the buyer with the issuance of BUDERUS’ ready-for-acceptance notice or ready-for-shipment notice. If sales are made on the basis of one of the respectively applicable Incoterms, these alone shall be authoritative for the passage of risk. To the extent that BUDERUS, insofar as is legally permissible, is to bear the risk thereafter, BUDERUS’ obligation to bear risk shall be restricted to those dangers that are insurable under normal conditions. Dangers above and beyond these shall be borne by the buyer from the time of the appropriation of the goods to the contract.
XII. Liability for material defects
1. BUDERUS shall be liable for the correct manufacture of the goods it supplies as provided in the technical delivery requirements agreed upon. If BUDERUS is to supply merchandise according to the buyer's drawings, specifications, samples, etc., the buyer shall assume the risk for their suitability for the intended use. The date of passage of risk pursuant to section XI (8) shall be the effective date for determining the condition of the goods as per agreement. Any claim by the buyer based on defects shall assume that the buyer has duly performed its obligations of inspection and complaint pursuant to § 377 of the Commercial Code (Handelsgesetzbuch, HGB). Any defects shall be specified in detail and reported immediately; defects which are not noticeable in the course of a proper inspection are to be reported within three days after they have been detected; hidden defects are to be reported within six months of delivery. If a deficiency claim is not lodged accordingly, any warranty claim, claim for damages or other claims on grounds of defects are excluded. If a defect is detected, the buyer shall immediately cease processing the merchandise.
2. Following an inspection of the goods by the buyer as per agreement, no complaints or claims may be issued afterwards for material defects that could have been detected in the type of inspection agreed upon.
3. BUDERUS shall not be liable for defects arising from inappropriate or improper use, faulty installation or commissioning, transport or negligent handling by the buyer or by third parties, or from usual wear and tear. In addition, if changes or repair work are made by the buyer or by third parties without the consent of BUDERUS, or if improper changes or repairs are made, BUDERUS shall not be liable for them or for the consequences thereof. Moreover, every warranty is excluded if BUDERUS’ goods are combined or mixed with other goods that were not bought from or recommended for use by BUDERUS, to the extent that this does not conform to processing in accordance with the appointed use.
4. For defects in BUDERUS’ deliveries and other performances, BUDERUS warrants that up to one year from the date of delivery of the merchandise BUDERUS shall, at its discretion, provide substitute performance either by delivering a replacement or by rectification. BUDERUS shall accept the costs arising from rectifying the defects or providing a replacement (transport costs, travel costs, labour costs and material costs), provided these costs are not increased by the goods’ having been transported to a place other than the place of performance of the original delivery that does not correspond to the appointed use. If a certain type of substitute performance can only be provided at disproportionate cost, BUDERUS shall be entitled to refuse this, at its sole discretion. Moreover, a precondition for defect rectification or delivery of a replacement is that the merchandise about which a complaint has been lodged be made available to BUDERUS for inspection. If the buyer does not comply with these obligations or makes changes to merchandise about which a complaint has already been lodged without BUDERUS’ prior consent, the buyer shall forfeit any and all claims arising from material defects.
5. If BUDERUS is not willing to rectify the defect or provide a replacement, or is unable to do so despite being set a reasonable period of time, or fails to provide substitute performance in some other way, then the buyer shall be entitled, at its discretion, to withdraw from the contract or to pay a lower purchase price.
6. Any further claims by the buyer arising from liability for material defects and guarantees shall be – subject to the provisions in section XIII – excluded. Therefore, subject to the provisions of section XIII, BUDERUS is not liable for any loss or damage that did not occur in the delivered product itself; in particular, BUDERUS is not liable for any lost profit or any other financial or consequential losses the buyer may experience, such as contract penalties, shutdowns of operation facilities, or consequential damages. In the case of merchandise sold as declassed material, i.e. so-called “2-A-Material”, the buyer shall have no rights to warranty claims in respect of the specified defects and those which are customarily to be expected by the buyer.
7. Any claims for damages and material defects, to which the buyer is entitled in respect of BUDERUS, have to be made within one year after the passage of risk. This shall not apply insofar as longer time limits are prescribed by law under § 438(1) item 2 of the German Civil Code (BGB: buildings and items normally used in buildings) and § 479(1) of the German Civil Code (rights of recourse), or in cases of injury to life, limb or health, in the case of deliberate or grossly negligent dereliction of duty, or in the case of fraudulent concealment of a defect. In these cases, as well as in cases of damages under the Product Liability Act (Produkthaftungsgesetz), the legal periods of limitation shall apply.
XIII. Liability
1. Insofar as nothing to the contrary is provided for below, all other or further claims by the buyer against BUDERUS on whatever legal ground, including, without limitation, the infringement of obligations arising from the obligatory relationship and in tort, shall be excluded. This exclusion includes, in particular, claims for damages on grounds of ordinary negligence or on grounds of negligent infringement of ancillary-agreement obligations, particularly obligations to give advice and information. Also excluded is the replacement of any indirect or consequential damage or the replacement of lost profit. BUDERUS assumes no liability for negligence on the part of upstream suppliers or other companies that BUDERUS involves in performance. Details on possibilities for processing or using our merchandise, technical advice and other particulars pertaining to suitability and usage, weight, dimensions, colours, services and appearance are for information purposes only and are not binding. Warranty claims by the buyer after the expiry of the one-year warranty period are also excluded, even if the buyer has given its own customer a warranty.
2. In the professional, business and trade sectors, liability for damages arising as a result of any defect in the merchandise (the product) is excluded. In the event that the buyer resells the merchandise to another customer in the professional, business or trade sector, the buyer undertakes to apply the above exclusion of liability to that party also. In the event that an appropriate exclusion of liability is lacking, the buyer undertakes to indemnify, and save and hold harmless, BUDERUS, and to replace all BUDERUS’ expenses arising therefrom.
3. This restriction of liability shall not apply where there is mandatory liability, which is to say in the case of intent, in the case of gross negligence of the legal representatives, executive employees or vicarious agents, in the case of liability under the Product Liability Act, in the case of fraudulently concealed defects and in the case of culpable violation of material contractual obligations. In the case of culpable violation of material contractual obligations, BUDERUS shall be liable only for germane, reasonably foreseeable loss or damage, except in cases of intent or gross negligence of BUDERUS’ legal representatives or executive employees. Neither does the restriction of liability apply to loss or damages causing injury to life, limb or health or in the case of the absence of a guaranteed quality, if and to the extent that the purpose of the guarantee is to secure the buyer against loss or damage not arising from the delivered goods themselves.
4. Insofar as BUDERUS’ liability is excluded or restricted, this shall also apply to the personal liability of its executive employees, other staff, legal representatives and vicarious agents.
XIV. Consecutive delivery
In the case of transactions with consecutive delivery, the specifications for approximately equal monthly quantities shall be provided to BUDERUS. If no specification is provided in time, and after setting a reasonable period of time without result, BUDERUS shall be entitled to withdraw from the remaining part of the transaction and to claim damages.
XV. Partial delivery
BUDERUS shall be entitled to make partial deliveries after giving the buyer an opportunity to respond. The resultant additional costs shall not be borne by the buyer, if BUDERUS is responsible for their being incurred.
The price shall remain unaffected; each partial delivery shall be deemed a separate transaction.
XVI. Excess quantities
In the event that the amount specified in the contract is exceeded by the buyer's individual specifications, BUDERUS shall be entitled but not obligated to deliver the excess. BUDERUS shall be entitled to invoice the excess at the prices applicable to the specification or to the delivered material.
XVII. Export documentation
If the buyer or its agent collects merchandise not destined for the territory of the Federal Republic of Germany, the buyer shall present to BUDERUS any and all export documentation required. This applies in particular to proof that the merchandise is being brought into another member state of the European Community, to the VAT identification number (UID), or to any personal exemption of the buyer. The buyer shall otherwise pay BUDERUS a sum amounting to the value added tax rate on the invoice value applicable to domestic deliveries, regardless of any further claims to which BUDERUS is entitled under section IV, items 5 to 7.
XVIII. Applicable law
All legal relations between BUDERUS and the buyer shall be subject only to the law applicable in the Federal Republic of Germany. All foreign laws are excluded. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG - "Vienna Sales Convention") shall not apply.
XIX. Severability
Should any provision of these General Terms and Conditions of Sale, Delivery and Payment be or become ineffective or impossible to perform, this shall not affect the effectiveness of the remaining conditions. The parties undertake, in such a case, to replace the provision that is ineffective or impossible to perform with an effective and practicable provision that corresponds, as far as possible, to the spirit and purpose of the provision being replaced. This also applies to possible gaps in the provisions.
XX. Data protection
BUDERUS shall be entitled to pass on all data arising in the context of its enterprise, in the required form, to the Federal Statistical Office, associations and other official bodies requesting it. Liability arising from passing on said data is excluded.
XXI. Special conditions for cold rolled strip and bright steel
In addition, the technical delivery specifications for cold rolled strip and bright steel shall apply.
Buderus Edelstahl Band GmbH
April 2006
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