Standard Sales Terms VonKempisResources GmbH
§ 1
Scope of Application
(1) These Standard Sales Terms shall exclusively apply. Contrary or differing conditions by Buyer or an agent are not recognized unless they are expressively approved. This also applies if performance is accepted with knowledge of contrary or varying conditions by Buyer.
(2) Unless the parties agreed on other terms, the INCOTERMS, latest addition, apply.
(3) In case parts of these Standard Sales Terms prove to be ineffective, the efficacy of the other parts of these Standard Sales Terms remain untouched.
(4) These Standard Sales Terms shall also apply to future transactions. They can be found on our internet homepage. Therefore, nobody should claim that he did not know our standard sales terms.
§ 2
Offers and Conclusion of the Contract, Proviso
(1) Unless there are other agreements, our offers are non-binding and without commitment.
(2) All legally binding agreements are to be done in writing. Employees are not authorised to enter into verbal agreements or to make verbal warranties which go beyond the written contract with the exception of Managing Director or authorised management (ppa.)
(3) Sales that are based on purchases from our suppliers are done on the proviso that we have been supplied with the right product and in time by our supplier.
§ 3
Price and Payment
(1) In case there are no other agreements, prices are ex works. Buyer is responsible for any cost incurred in connection with Railway transport, particularly connection fees, for the provision of cargo cars and weighing by the Railway and others. The calculation of the price of the delivered goods, also in case of shipment by boat, is based upon the weight determined at the point of departure either at the factory or at the railway. The declared prices are based upon the costs (such as costs of raw materials and supplies, wages, freight etc.) at the time the offer was made. Should the costs change until the time of delivery, we reserve the right to adjust the agreed upon price. The Incoterms in its latest published version shall apply to all offers.
(2) The VAT is not included in our prices.
(3) Unless there are other agreements, the purchase price is payable within 14 calendar days after the date of invoice without any deduction.
(4) If Buyer is in arrears of payment, we are entitled to claim interest in the amount of 6% above the current base interest rate per annum. We further reserve the right to show higher damages caused by any delay and to claim such damages.
(5) Cheques or bills of exchange will be accepted on account of performance. Buyer shall bear any and all costs arising from processing of cheques or bills of exchange. There shall be no obligation for timely submission and protest.
(6) In the event that a bill of exchange has been protested or if a Buyer’s cheque is not honored or if we receive information about other circumstances sufficient to doubt the creditworthiness of Buyer, we are entitled to claim the total debt due. This also applies if we have accepted the cheque or the bill of exchange. In such case, we are entitled to request advance payment or security.
(7) Buyer has a right to a set-off or a right to retention only if the counter claims are not contested or there has been a final decision by a court.
§ 4
Retention of Ownership
(1) Until all claims (including claims to balance the current accounts), which we are entitled to bring against Buyer at the time of the conclusion of the contract have been fulfilled, the following securities are granted to us, which upon request, will voluntarily release to the extent that the securities steadily exceeds the claims by more than 20 %.
(2) The goods shall remain our property. Manufacturing or re-processing shall be done on our behalf as the producer, but without any obligation on our part. If a new product is created through manufacturing or re-processing, Buyer acquires an equivalent right to the new product. In the event that the property right ceases due to a combination and confusion, both parties agree that we acquire the co-ownership share of Buyer in proportion to the invoice amount of the changed product. Buyer shall hold the co-ownership share for us free of charge. Goods in which we have a co-ownership share shall be named reserved goods.
(3) Buyer is entitled to process and to dispose of the reserved goods in the ordinary course of business unless he is in default. Pledging and transferring of title for security purposes are not permitted. In case reserved goods are sold by Buyer or any other reason for a claim concerning the reserved goods (insurance, others), they have already been fully assigned by Buyer to us for security purposes. We revocably authorize Buyer to collect the assigned claims on his account and under his name. This authorization can only be revoked if Buyer does not fulfil his contractual payment obligations.
(4) Pawning and / or usage as security of goods that have not been fully paid is prohibited to the Buyer. In case of attack by a third party, particularly in the form of attachment of property, Buyer shall notify the third party that it is our property and shall immediately inform us in order to enable us to enforce our property rights. To the extent that the third party is unable to reimburse us for court fees or other costs incurred, Buyer shall bear such costs.
(5) If Buyer acts inconsistently with this agreement, particularly in default of payment, we are entitled to reclaim the reserved goods and eventually to require the assignment of the right to recover possession of the goods against a third party. Neither reclamation nor attachment of the reserved goods shall be deemed to be a rescission of contract by us.
(6) If case retention of ownership can only be achieved with the support of the Buyer, for example registrations, etc. Buyer has to carry out such things. This is a main contractual duty.
§ 5
Passing of the Risk
The risk shall pass to Buyer as soon as the goods have been handed over to persons responsible for the transport or the goods have left our warehouse for the purposes of transport. This also applies if the delivery is rendered by our vehicles.
§ 6
Time of Delivery
(1) If a period for delivery is agreed upon, it shall begin on the date of the confirmation of the order, however not before all collateral issues have been agreed upon concerning the order and eventually all necessary documents and drawings have been agreed to and been received. The time of delivery is observed if the goods have left the place of production before the time for delivery has passed or if the goods are ready for shipment at the place of production and the shipment has been hindered without fault on our part. In the event of sale for delivery on call the volumes and dates of delivery for each call are subject to special agreement.
(2) In case the delivery of the goods has to be delayed due to unexpected circumstances of any kind, e.g. obstacles in transport, damage on machinery, illness, strike, plant interruption (or breakdown) or other force majeure, an adequate extension will be granted. This also counts in case the circumstances occur after we have come in default. Costs, that are related to such delays will not be coved by us.
(3) Any liability for damages due to default of delivery is excluded. This does not apply if the default is intentional or a result of gross negligence or results from a violation of a material contractual obligation. In case of gross negligence or a violation of a material contractual obligation, our liability is limited to typical contractual and foreseeable damages. In any case, liability is limited to € 0,5 Mio.
(4) If, after we have gone in default, Buyer sets a reasonable grace period Buyer is entitled to rescind from this contract upon expiration of the grace period. Damages for failure to perform are excluded. Section 6 paragraph 3 sentences 2 and 3 shall apply.
(5) We are entitled to partial delivery or partial performance to the extent reasonable under the circumstances.
(6) Compliance with our obligation to deliver requires the timely and orderly performance of Buyer’s obligations and commitments.
(7) If Buyer is in default of acceptance or violates other duties to cooperate, we are entitled to claim any damages which may arise as well as any additional expenditures. In this case, the risk of accidental loss or accidental deterioration of the goods is transferred to Buyer at the time default of acceptance occurs.
§ 7
Warranties
(1) Buyer must give written notice of any defects without undue delay, at the latest within one week of the receipt and ownership of the goods. Defects which could not be discovered upon a reasonable inspection of the goods within this time period, must be notified in writing without undue delay upon their discovery.
(2) In so far as the goods are defective at the passing of the risk, we are entitled to in our choice of either a curing of the defect or a substitute delivery. In cases of a curing of the defect, we are obliged to bear all reasonable expenses to cure the defect such as the costs of transport, transport fees, labour costs and other expenses unless those costs are increased because the goods are brought to a place other than the place of performance.
(3) If we are not prepared to cure the defect or to render a substitute delivery, or if a curing of the defect or the substitute delivery is delayed beyond a reasonable time due to reasons for which we are responsible or if we unsuccessfully try to cure the defect or to complete a substitute delivery, Buyer shall be entitled to choose between a rescission of the contract only for the goods that are defected and a proportionate reduction in the purchase price.
(4) In so far as the third sentence following this one and paragraph (5) do not provide differently, all further claims by Buyer – on whatever legal ground – are excluded. Therefore, we are not liable for damages which do not relate to the delivered good. Furthermore, we are not liable for Buyer’s loss of profit or other economic damages. The above mentioned exemption from liability does not apply if the damage has been caused intentionally.
(5) As far as liability results from gross negligence or a violation of a material contractual obligation, the liability is limited to typical contractual and foreseeable damages.
(6) Warranty claims are subject to a limitation period of twelve months after the passing of the risk. This also applies to a claim for damages which derive from the defect.
(7) As far as competing claims are not already excluded under section 4 and 6, these claims are subject to a limitation period of twelve months after the occurrence of the act of infringement.
(8) Guarantee of product attributes: In case seller declares a guarantee for certain product attributes for a certain period of time, buyer has all rights derived from that guarantee under the conditions of the guarantee in case of product default.
(9) In case seller declares a guarantee for a certain period of time, seller is responsible for all product default during that period of time.
§ 8
Liability
(1) Any liability for damages is excluded, notwithstanding the legal nature of the asserted claim, except in the cases pursuant to paragraph 6 section 2 and 3, paragraph 7 section 4 and 5.
(2) Paragraph 1 does not apply to claims according to sections 1, 4 Produkthaftungsgesetz (Product Liability Statute). To the extent that the exclusion of liability pursuant to section 7 paragraph 4 to 6 does not apply to product liability claims per § 823 BGB, our liability is limited to the amount that will be paid by the insurance.
(3) Paragraph 1 does not apply to cases of initial inability to perform. In case of an inability to perform at our fault, our liability is limited to typical contractual and foreseeable damages. This does not apply to cases of intentional nonperformance.
(4) As far as our liability is excluded or limited, this also applies to the liability of any person employed by us in the course of the performance of our obligations.
(5) Any liability for consultancy is exluded.
§ 9
Jurisdiction and Applicable Law
(1) In so far as Buyer is a merchant, the exclusive jurisdiction shall be our place of business for all disputes arising out of the contract, direct or indirect, including disputes concerning cheques and bills of exchange.
(2) These Standard Sales Terms and the entire legal relationship between Buyer and Seller are exclusively subject to the law of the Federal Republic of Germany, however giving no effect to the conflict of law provisions thereof and the UN Convention on Contracts for the International Sale of Goods (CISG) or other similar international agreements
General Conditions of Purchase VonKempisResources GmbH
§ 1
Scope of Application
(1) These conditions of purchase shall exclusively apply. Contrary or differing conditions by the supplier are not recognised unless they are expressively approved in writing. This also applies, if performance is accepted with knowledge of contrary or varying conditions by the supplier.
(2) The conditions of purchase shall also govern any future transactions with the supplier. They can be found on our internet homepage. Nobody should claim that he did not know our standard sales terms.
(3) Unless the parties agreed on other terms the INCOTERMS, latest edition, apply.
(4) Variations from the following conditions of purchase must be expressively confirmed in writing by us in order to be effective.
(5) Should certain regulations or parts of these conditions of purchase prove to be inoperative, the effectiveness of the remaining conditions of purchase remains untouched.
§ 2
Acceptance of Order Samples
(1) The supplier must accept the order without delay in writing, at the latest by the next working day after receiving the order. In the case of a failure to accept on time, we are no longer bound to our order. Also, supplier has to countercheck the ordered product in respect to the quality. In the case of misunderstandings supplier bears the risk of supplying the wrong product.
(2) In case samples have been given to the supplier and the order has been placed based on the quality of the sample, the agreed quality of the sample is considered the quality of the goods. The same applies to samples, which have been received from the supplier and have been considered by us as the agreed quality for the order.
§ 3
Passing of the Risk and Transport Costs
(1) Unless there is no other agreement, supplier bears the costs of packaging and transportation as well as the risk until the ordered goods are delivered at the place of destination.
(2) The supplier is obliged, at our request, to take back the packaging material without charge.
§ 4
Supply and Period of Delivery
(1) The supplier is only entitled to deliver in installments with our expressed consent.
(2) The supplier must ensure that the transportation documents identify the delivery according to the requirements stated in the order. In addition, our order number must always be quoted on the transportation documents.
(3) The supplier is obliged to inform us immediately in writing, if circumstances arise which could result in non-compliance of the delivery deadline.
(4) If a delay in delivery occurs we are entitled to a statutory claim. In particular we are entitled to state a reasonable period for performance and after the expiration of this period to demand damages due to non fulfilment.
(5) The supplier has to make sure, that there are no indications about the supplier or pre-supplier neither on the goods / packaging nor inside the goods / packaging.
§ 5
Inspection for Defects and Guarantee
(1) We are obliged, as far as it is reasonable and usual, to examine the delivery within a reasonable period for deviations in quality and quantity and to give notification of a defect thereof. Notification on hidden deviations in quantity and quality that could not be discovered upon a reasonable inspection of the goods can be given after they are detected.
(2) Our warranty claims exist in accordance with statutory provisions. In so far as it is possible, we are additionally entitled to demand the supplier, as we choose, to remedy the defect or to deliver a replacement. The cost of the remedy of the defect or the delivery of a replacement shall be borne by the supplier in full.
(3) The warranty period of the supplier towards us is 24 months commencing at the transfer of risk.
(4) We are entitled to send back damaged and claimed goods at the supplier’s expense from the destination point or any other place, where the goods were located, when the damage was discovered. This does not apply, if the goods are approved by us.
(5) In case delivered quantity is minor to ordered quantity and we do not claim this within suitable period, we loose the right on new delivery. However, we only have to pay the delivered quantity as received.
§ 6
Product Liability
(1) If a product liability case occurs, the supplier is to indemnify us from any claims from third parties owing to his responsibility as producer.
(2) Within this scope the supplier is also obliged to reimburse expenses in accordance with sections 683, 670 BGB [Civil Code] which arise out of or in connection with any revocation measures we have implemented. We will inform the supplier with respect to content and extent of the implemented revocation measures within the framework of the provided possibilities and give the supplier the opportunity to comment.
(3) The supplier must have a product liability insurance, with the coverage of € 3 million for each occurrence of damage. Claims towards the supplier in addition or in excess remain unaffected.
§ 7
Rights of Third Parties, Dangerous goods
(1) The supplier warrants that due to his delivery no third party rights are infringed.
(2) The supplier is obliged, at our first request, to indemnify us from any such third party claims. We are not allowed to make arrangements about the liability without the approval of the third party.
(3) Before signing a contract the supplier must indicate, whether or not the goods that are to be delivered are dangerous and has to indicate the corresponding markings. Further he must make sure that all legal regulations including packing regulations for the goods delivered are being obeyed. This also applies for all logistics arrangements.
§ 8
Reservation of Title
(1) In so far as we have made available to the supplier materials or products for further processing, we reserve the right to ownership.
(2) Processing or manufacturing of these materials and primary products will be undertaken for us by the supplier. If our reserved goods are processed with others not belonging to us, we acquire joint ownership of the new item in proportion to the cost of our item to the other processed item.
(3) If the materials made available by us are joined, mixed or blended with items that do not belong to us, we acquire joint ownership of the new item in proportion to the cost of our item to the other item at the point of joining, mixing or blending. If the supplier’s item is regarded as the main item it shall be agreed that the supplier transfers a proportional joint ownership. The supplier keeps the sole ownership or the joint ownership for us.
(4) Goods that have been paid by us, but have been sent back to the supplier due to a contract violation or another fault, remains our property until the supplier has regulated all our demands, including full payment for the damage. The supplier is not permitted to pawn the goods or to use them as security deposit towards others.
§ 9
Invoicing and Payment
(1) The invoice must be presented at the latest on the fifth working day of the month following delivery. We can only handle and pay invoices if the correct order number is stated on the invoice. We are not responsible for delays which arise from non-fulfilment of the aforementioned requirements.
(2) Payment will be made, unless agreed otherwise, within 30 days after receiving the invoice with 3% discount or within 45 days with 1,5% discount or within 60 days net.
(3) The right of setting off and retention are available to us according to statutory provisions.
(4) The assignment of demands towards us in combination with the sales contract is only allowed with our approval in written form. Our approval is granted in case the assignment is given to the bank of the supplier, which he uses normally.
§ 10
Confidentiality
The supplier is obliged to keep confidential all received illustrations, drawings, calculations and other documents and information. The supplier may only disclose these to third parties with our express consent. These confidentiality obligations survive termination of the contractual relationship. They cease to exist when and in so far as the illustrations, drawings, calculations and the documents become generally known.
§ 11
Place of Jurisdiction and Applicable Law
(1) In so far as the supplier has merchant status, our place of business is the exclusive jurisdiction for all disputes arising directly or indirectly out of or in connection with the contractual relationship, including actions for payment on the basis of cheques or bills of exchange.
(2) These general conditions of purchase and the legal relationship between ourselves and the supplier shall be governed by the laws of the Federal Republic of Germany with the exclusion of conflict of laws rules and the UN Agreement on the International Purchase of Goods or similar agreements