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General terms and conditions of sale of Rosenberger GmbH flame cutting and steel trade, Neuss as of January 2018
I. Validity / Offers
1. These general conditions of sale apply to all – also future – contracts with companies, legal persons under public law and special funds under public law for deliveries and other services including contracts for work and services and the delivery of non-representable items. In the case of drop shipments, the conditions of the price list of the contracted supplier apply in addition. The buyer’s terms and conditions of purchase are not recognized even if we do not expressly contradict them again after we have received them.
2. Our offers are non-binding. Oral agreements, promises, assurances and guarantees by our employees before or upon conclusion of the contract only become binding after we have confirmed them in writing.
3. In case of doubt, the Incoterms in their latest version are decisive for the interpretation of trade clauses.
1. Unless otherwise agreed, the prices and conditions of our price list valid at the time the contract was concluded plus freight, statutory sales tax and import duties apply.
2. If the sum of the costs incurred outside of our company (taxes or other external costs) that are included in the agreed price changes later than four weeks after the conclusion of the contract, or if they arise again, we are entitled to increase the prices to the corresponding extent on the first of the to adjust calendar month.
3. In the event that the adjusted price exceeds the starting price by more than 15%, the buyer has the right to withdraw from the contract when the price adjustment takes effect
with regard to the quantities affected by the price adjustment. The right of withdrawal can only be exercised within one week of the price adjustment becoming aware of or being able to take notice.
III. Payment and settlement
1. Unless otherwise agreed or stated in our invoices, the purchase price is due immediately after delivery or discount deduction and must be paid in such a way that we can dispose of the amount on the due date. The buyer bears the costs of payment transactions. The buyer is only entitled to a right of retention and a right to offset if his counterclaims result from the same contractual relationship (in particular claims for defects) or are undisputed or have been legally established.
2. If the term of payment is exceeded, at the latest from the point of default, we shall charge interest at the rate of 9 percentage points above the respective base rate, unless higher interest rates have been agreed. In addition, we charge a flat-rate fee of 40.00 €. The assertion of further damages remains reserved.
3. The buyer is in default no later than 10 days after our claim is due, without the need for a reminder.
4. If, after the conclusion of the contract, it becomes apparent that our payment claim is jeopardized by the buyer’s inability to pay, or if the buyer is in arrears with a substantial amount, or if other circumstances arise that indicate a significant deterioration in the buyer’s solvency after the conclusion of the contract, we are entitled to the rights § 321 BGB. This also applies if our performance obligation is not yet due. We are then also entitled to make all claims from the current business relationship with the buyer that are not yet due.
5. A discount agreed on a case-by-case basis always relates only to the invoice value excluding freight and assumes the full settlement of all due liabilities of the buyer at the time of the discount. Unless otherwise agreed, discount periods start from the invoice date.
IV. Execution of deliveries, delivery periods and dates
1. Our delivery obligation is subject to correct, timely and contractual self-delivery, unless we are responsible for the incorrect, delayed or non-contractual self-delivery.
2. Information on delivery times are approximate. Delivery periods begin with the date of our order confirmation and are only valid provided that all details of the order are clarified in good time and all obligations of the buyer are fulfilled, such as the provision of all official certificates, provision of letters of credit and guarantees or payment of down payments.
3. The time of dispatch from the factory or warehouse is decisive for compliance with delivery periods and dates. They are deemed to have been complied with upon notification of readiness for dispatch,
if the goods cannot be dispatched on time through no fault of ours.
4. In the event of a delay in delivery, the buyer can set us a reasonable grace period and, after the deadline has expired, withdraw from the contract insofar as the contract has not yet been fulfilled. In such cases, claims for damages are based on Section XI. of these conditions.
V. Retention of title
1. All delivered goods remain our property (reserved goods) until all claims have been met in full, in particular the respective balance claims to which we are entitled in the context of the business relationship (balance reservation). This also applies to future and conditional claims, e.g. from acceptor bills, and also if payments are made on specially designated claims. However, the balance reservation does not apply to prepayment or cash transactions that are processed step by step. In this case, the delivered goods remain our property until the purchase price for these goods has been paid in full. The balance reservation expires once all claims that are still open at the time of payment and are covered by this balance reservation have been settled.
2. Treatment and processing of the goods subject to retention of title are carried out for us as the manufacturer within the meaning of Section 950 of the German Civil Code (BGB), without obliging us. The processed goods are deemed to be reserved goods within the meaning of No. 1. If the buyer processes, combines and mixes the reserved goods with other goods, we are entitled to share ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other used goods. If our ownership expires due to combination or mixing, the buyer transfers the ownership rights to which he is entitled to the new inventory or the item to the extent of the invoice value of the reserved goods and stores them for us free of charge. Our co-ownership rights apply as reserved goods within the meaning of No. 1.
3. The buyer may only sell the reserved goods in the ordinary course of business at his normal terms and conditions and as long as he is not in default, provided that the claims from the resale according to Nos. 4 to 6 are transferred to us. He is not authorized to dispose of the reserved goods in any other way.
4. The claims from the resale of the goods subject to retention of title, together with all securities that the buyer acquires for the claim, are now assigned to us. We accept the assignment. The claims serve as security to the same extent as the reserved goods. If the reserved goods are sold by the buyer together with other goods not sold by us, the claim from the resale is assigned to us in the ratio of the invoice value of the reserved goods to the invoice value of the other goods sold. When goods are sold in which we have co-ownership in accordance with No. 2, a portion corresponding to our co-ownership is assigned to us.
5. The buyer is entitled to collect claims from the resale. This authorization to collect expires in the event of our revocation, but at the latest in the event of default in payment, non-payment of a bill of exchange or an application to open insolvency proceedings. We will only make use of our right of revocation if, after the conclusion of the contract, it becomes apparent that our payment claims from this or other contracts with the buyer is endangered by the latter’s inability to pay. At our request, the buyer is obliged to inform his customers immediately of the assignment to us and to give us the documents required for collection.
6. The buyer must inform us immediately of any seizure or other impairments by third parties. The buyer bears all costs that have to be expended to revoke access or to return the goods subject to retention of title, unless they are replaced by third parties.
7. If the buyer is in default of payment or if he does not pay a bill when it is due, we are entitled to take back the reserved goods after a reasonable grace period and, if necessary, to enter the buyer’s premises for this purpose and to add the reserved goods to the purchase price as best as possible sell. The same applies if, after the conclusion of the contract, it becomes apparent that our payment claim from this contract or from other contracts with the buyer is jeopardized by insufficient solvency. Taking back is not a withdrawal from the contract. Regulations of the bankruptcy code remain unaffected.
8. If the invoice value of the existing securities exceeds the secured claims including ancillary claims (interest, costs, etc.) by more than 50 percent in total, we are obliged to release securities of our choice at the buyer’s request.
The weighing carried out by us, or our sub-supplier is decisive for the weights. Proof of weight is provided by presenting the weighing slip. As far as legally permissible, weights can be determined without weighing according to the standard. The surcharges and discounts customary in the steel trade in Germany (trading weights) remain unaffected.
Number of items, bundle numbers, etc. specified in the dispatch note. are non-binding for goods charged by weight. Unless an individual weighing is usually carried out, the total weight of the shipment applies in each case. Differences compared to the arithmetical individual weights are distributed proportionally among them.
VII. Test certificates / acceptances
1. The delivery of test certificates („certificates”) according to EN 10204 requires an agreement in text form. We are entitled to hand over copies of such certificates.
In the absence of an express agreement, the fee for test certificates is based on our price list or the price list of the respective exhibitor (supplier).
2. If acceptance has been agreed, it can only take place in the delivery plant or our warehouse immediately after notification of readiness for acceptance. The buyer bears the personal acceptance costs, the material acceptance costs are charged to him according to our price list or the price list of the supplier.
3. If the acceptance does not take place through no fault of ours, not on time or not completely, we are entitled to send the goods without acceptance or to store and invoice them at the buyer’s expense and risk.
VIII. Dispatch, transfer of risk, packaging, partial delivery
1. Unless otherwise agreed, we will determine the route and means of dispatch as well as the forwarder and carrier.
2. Goods reported as ready for dispatch in accordance with the contract must be called up immediately, otherwise we are entitled, after a reminder, at the expense and risk of the buyer, to dispatch them at our discretion or to store them at our own discretion and to invoice them immediately.
3. If, through no fault of our own, the transport on the intended route or to the intended location becomes impossible or significantly more difficult in the intended time, we are entitled to deliver on a different route or to a different location; the additional costs incurred are borne by the buyer. The buyer is given the opportunity to comment beforehand.
4. When the goods are handed over to a forwarding agent or carrier, but no later than when they leave the warehouse or the delivery plant, the risk, including seizure of the goods, is transferred to all transactions, including carriage paid and carriage paid deliveries Buyers over. We only provide insurance on the instructions and at the expense of the buyer. Duty and costs of unloading are borne by the buyer.
5. The goods are delivered unpacked and not protected against rust. If this is customary in the trade, we deliver packed. According to our experience, we will provide packaging, protective and / or transport aids at the buyer’s expense. They will be taken back at our warehouse. We do not assume the buyer’s costs for return transport or for own disposal of the packaging.
6. We are entitled to make partial deliveries to a reasonable extent. Excess and short deliveries of the agreed quantity customary in the industry are permissible. The specification of an „approx.” Amount entitles us to an over / underrun of up to 10%.
IX. Call orders / continuous deliveries
1. In the case of contracts with continuous delivery, we are to be given call-offs and classifications for approximately equal monthly quantities; otherwise, we are entitled to make the provisions ourselves at our reasonable discretion.
2. If the individual call-offs exceed the total contract quantity, we are entitled to deliver the excess quantity, but we are not obliged to do so. We can calculate the additional quantity at the prices valid at the time of the call or delivery.
3. Unless otherwise agreed, call orders must be processed within 365 days of the conclusion of the contract. After the deadline has expired, we are entitled to store and invoice the goods that have not been called up at the expense and risk of the buyer.
X. Liability for material defects
1. The properties of the goods, in particular their quality, type and dimensions, are determined in accordance with the agreed DIN / EN standards, in the absence of an agreement, in accordance with the DIN / EN standards applicable at the time the contract is concluded; References to standards, material sheets or test certificates in accordance with EN 10204 and similar certificates as well as information on qualities, dimensions, weights and usability are not assurances or guarantees, nor are declarations of conformity and corresponding marks such as CE and GS.
2. The statutory provisions apply to the examination of the goods and the notification of defects with the following stipulations:
• The buyer is obliged to examine the properties of the goods that are relevant for the respective use immediately after delivery and to notify us of any defects in the goods immediately in writing. In the case of an intended installation or attachment of the goods, the properties that are decisive for the installation or attachment also include the internal properties of the goods.
The obligation to inspect also exists if an inspection certificate or other material certificate has been supplied. Defects that cannot be discovered immediately after delivery, even with the most careful inspection, must be reported in writing immediately after discovery.
• If, in the case of installation or attachment of the goods, the buyer fails to examine the properties of the goods relevant for the intended use at least randomly before installation or before installation (e.g. through functional tests or a trial installation), this shall be delivered in proportion This represents a particularly serious disregard for the care required in traffic (gross negligence). In this case, the purchaser’s rights to defects with regard to these properties are only considered if the defect in question has been fraudulently concealed or a guarantee has been given for the quality of the item.
3. If the notification of defects is justified and timely, we can choose to either eliminate the defect or deliver goods free of defects (subsequent performance). If the supplementary performance fails or is refused, the buyer can withdraw from the contract or reduce the purchase price after a reasonable period has expired. If the defect is not significant or if the goods have already been sold, processed or redesigned, he is only entitled to the right to reduce the price.
4. If the buyer has installed the defective goods in another item or attached them to another item in accordance with their type and purpose, he can reimburse the necessary expenses for removing the defective goods and installing or attaching the repaired or delivered defect-free goods („Removal and installation costs”) only in accordance with the following provisions:
• Only those dismantling and installation costs are required that relate directly to the dismantling or dismantling of the defective goods and the installation or attachment of identical goods, which have arisen on the basis of customary market conditions and which the buyer can prove to us by submitting suitable documents at least in text form become.
• Any additional costs incurred by the buyer for consequential damage caused by defects, such as lost profit, business downtime costs, or additional costs for replacement purchases, are not direct dismantling and installation costs and therefore cannot be reimbursed as reimbursement of expenses following Section 439 (3) BGB. The same applies to sorting costs and additional expenses that arise from it the sold and delivered goods are at a different place than the agreed place of performance. • The buyer is not entitled to demand an advance payment for dismantling and installation costs and other costs of subsequent performance. 5. If the expenses claimed by the buyer for subsequent performance are disproportionate in individual cases, in particular concerning the purchase price of the goods in a defect-free condition and taking into account the significance of the lack of conformity, we are entitled to refuse to reimburse these expenses. In particular, there is disproportionality if the claimed expenses, in particular for dismantling and installation costs, exceed 150% of the invoiced value of the goods or 200% of the defect-related reduced value of the goods. 6. After an agreed acceptance of the goods has been carried out by the buyer, the complaint of defects that were ascertainable during the agreed type of acceptance is excluded. If a defect has remained unknown to the buyer as a result of negligence, he can only assert rights due to this defect if we fraudulently concealed the defect or have given a guarantee for the quality of the item. 7. If the buyer does not give us an immediate opportunity to convince ourselves of the defect, in particular, if he does not immediately make the goods or samples of the complaint available for testing purposes upon request, all rights due to the material defect are void.
8. In the case of goods that have been sold as declassified material, the buyer is not entitled to any rights arising from material defects concerning the stated reasons for declassification and those defects that he usually has to expect. When selling declassified (IIa) goods, our liability for material defects is excluded.
9. Further claims of the buyer are excluded according to section XI of these conditions. This applies to claims for replacement of
• Damage that did not occur to the goods themselves (consequential damage caused by a defect),
• Costs for the self-elimination of a defect, without the statutory
Conditions are met and
• Removal and installation costs, insofar as the goods delivered by us at the time of
Installation or extension in their original property properties no longer
existed or a new product from the delivered goods before installation was produced
XI. General limitation of liability and statute of limitations
1. For breaches of contractual and non-contractual obligations, in particular due to impossibility, delay, culpability in contract initiation and tort, we are only liable – also for our executives and other vicarious agents – in cases of intent and gross negligence, in cases of gross negligence limited to the Typical damage that is foreseeable upon conclusion of the contract. In addition, our liability, also for defects and consequential damages, is excluded.
2. These restrictions do not apply in the event of culpable breach of essential contractual obligations, insofar as the achievement of the contractual purpose is jeopardized, in the event of culpably caused damage to life, body and health and also not if and to the extent that we guarantee the quality of the goods sold Have taken over the item, as well as in cases of mandatory liability under the Product Liability Act. Essential are those contractual obligations that make the proper execution of the contract possible in the first place and compliance with which the buyer can regularly rely. The rules on the burden of proof remain unaffected.
3. If we are in default with a delivery or other service, the buyer can demand compensation for the default damage in addition to the service but limited to a maximum of 10% of the agreed price for the default service in the case of slight negligence. The buyer’s right to compensation in lieu of performance in accordance with the present Sections XI.1 and XI.2 remains unaffected.
4. Unless otherwise agreed, contractual claims that the buyer may have against us on the occasion of and in connection with the delivery of the goods expire one year after delivery of the goods. This does not apply to the extent that § 438 Paragraph 1 No. 2 BGB, §§ 478, 479 BGB or § 634 a Paragraph 1 No. 2 BGB prescribe longer periods and in cases of injury to life, limb, or health an intentional or grossly negligent breach of duty by us or in the event of fraudulent concealment of a defect.
XII. Place of performance, place of jurisdiction and applicable law
1. The place of performance for our services is the delivery plant for deliveries ex works, and our warehouse for all other deliveries. The place of jurisdiction is, at our option, Neuss or the buyer’s registered office.
2. In addition to these conditions, German non-standardized law, in particular the BGB / HGB, shall apply to all legal relationships between us and the buyer. The provisions of the Vienna UN Convention of April 11, 1980, on Contracts for the International Sale of Goods do not apply.
XIII. Applicable version
In case of doubt, the German version of these general terms and conditions of sale is decisive
Rosenberger GmbH Brennwerk und Stahlhandel
Duisburger Straße 24
Tel.: +49 (0) 21 31 – 709-0
Fax: +49 (0) 21 31 – 709-100
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