General Terms and Conditions of Supply and Payment for the Export
Business of Johann Kretzer GmbH & Co. KG, Solingen
Scope of validity
1. These Conditions of Sale apply to business owners, legal entities
under public law and special funds under public law. Our deliveries
and services are provided exclusively on the basis of the terms
and conditions below. The business terms and conditions of the
partner, unless expressly recognised by us, have no validity.
General
provisions
2. Full details of any verbal agreements will be immediately confirmed
in writing by the contracting partners.
3. Orders will not be binding until they are confirmed by us.
4. Information and illustrations contained in brochures and catalogues
are, in accordance with usual trade practice, regarded as approximations
unless they have been expressly described by us as binding.
Long-term
and call contracts, price adjustment
5. Unlimited contracts may be terminated by 6 months’ notice.
6. If any significant change occurs in the case of long-term contracts
(contracts with a term of more than 6 months and unlimited contracts),
in respect of wage, material or energy costs, each of the contracting
partners is entitled to demand an appropriate adjustment of the
price, taking these factors into consideration.
7. Where a binding order quantity is not agreed, our calculation
will be based on the non-binding order quantity expected by the
partner for a specific period of time (target quantity).
Where the partner purchases less than the target quantity, we
are entitled to increase the unit price by an appropriate amount.
1.In the case of call supply contracts, unless otherwise agreed,
binding quantities are to be notified to us by call not less than
2 months before the delivery date. Any additional costs caused
by our partner through late calling or subsequent amendments to
the call in respect of time or quantity are to be borne by the
partner; in this respect our calculation will prevail.
Confidentiality
9. Each of the contracting partners will use all documents (which
will also include samples, models and data) and information received
by them under the business relationship only for the contractual
purpose, and maintain secrecy in respect of third parties with
the same due care as applied to their own documents and information,
where the other partner describes them as confidential or has
an obvious interest in maintaining secrecy in respect of such
documents or information.
This obligation commences on receipt of the first documents or
information and ends 36 months after the end of the business relationship.
10. The obligation does not apply to documents and information
which are generally known, or which were already known to the
contracting partner on receipt and where the contracting partner
was not under obligation of secrecy, or where they are subsequently
conveyed by a third party who is authorised to pass on such documents
or information, or where the documents or information are developed
by the receiving contract partner without exploitation of documents
or information of the other contracting partner.
Drawings
and specifications
11. Where one of the contract partners makes available to the
other drawings or technical documents relating to the goods to
be supplied, or to the manufacture of such goods, to the other
partner, these remain the property of the contract partner submitting
them.
Samples
and production materials
12. Manufacturing costs for samples and production materials (tools,
moulds, templates, etc.) will, unless otherwise agreed, be invoiced
separately from the goods to be supplied. This also applies to
production materials which have to be replaced as a result of
wear and tear.
13. The costs for maintenance and proper storage, together with
the risk of damage to, or destruction of the production materials,
will be borne by us.
14. Where, during the period of manufacture of samples or production
materials, the partner abandons or terminates the co-operation,
all manufacturing costs incurred up to that time will be borne
by that partner.
15. Even where the partner has paid for them, the production materials
remain our property at least until completion of the supply contract.
The partner is then entitled to reclaim the production materials,
where a mutual agreement has been reached in respect of the time
of delivery and the partner has fully complied with his contractual
obligations.
16. We will keep the production materials free of charge for three
years after the final delivery to our partner. We will then request
our partner in writing to make known his views on their further
use within 6 weeks. Our duty of storage will end if, within these
6 weeks, no such statement has been made, or if no new order has
been given.
17. Purchaser-related production materials may only be used by
us for supply to third parties with the prior written agreement
of our partner.
Prices
18. Our prices are in Euro, exclusive of turnover tax, packing,
freight, carriage and insurance.
Payment
terms
19. All invoices are due for payment within 30 days of the invoice
date.
20. Where we have indisputably supplied goods which are partly
defective, our partner is nevertheless obliged to pay for the
non-defective part, unless partial delivery is of no use to him.
In other respects the partner may only set off payment against
counter-claims which have been determined by final judgement or
are not disputed.
21. If the payment terms are not met, we shall be entitled to
bill interest on arrears at the rate charged to us by the bank
for current account overdrafts, but at a minimum of 8 percentage
points above the base interest rate of the European Central Bank
at the time.
22. In the event of any delay in payment we may, after giving
notice in writing to the partner, suspend our obligations until
payments have been received.
23. Bills of exchange and cheques will only be accepted where
this has been agreed, and only on account of performance and on
condition that they may be discounted. Discount charges will be
calculated from the due date for payment of the invoice amount.
A guarantee for presentation of bills of exchange and cheques
at the due and proper time and for the lodging of a protest is
excluded.
24. If it becomes apparent after conclusion of the contract that
our claim to payment is at risk owing to the partner's lack of
adequate financial capacity, we shall be able to refuse performance
and to set the partner a reasonable deadline within which it must
make payment or provide security concurrently with delivery. If
the partner refuses to do so or the deadline expires without result,
we shall be entitled to withdraw from the contract and demand
damages.
Delivery
25. Unless otherwise agreed, we will deliver ”ex-works”.
Compliance with the delivery date or delivery period will be based
on our notification of readiness for dispatch or collection.
26. The delivery period commences on dispatch of our order confirmation
and will be extended as appropriate where the provisions of Article
55 below apply.
27. Partial deliveries are permitted within reason. They will
be invoiced separately.
28. Production-related long or short deliveries are permitted
within a tolerance of 10 per cent of the total order quantity.
The total price will be adjusted accordingly.
Dispatch
and transfer of risk
29. Goods which are notified as being ready for dispatch are to
be taken over immediately by the partner. We are otherwise entitled,
at our option, to dispatch them or to store them at the cost and
risk of the partner.
30. In the absence of any special agreement, we will select the
transport method and routing.
31. The risk is transferred to the partner on handover to the
railway, forwarding agent or freight carrier, or on commencement
of storage, but in any case not later than departure from the
factory or warehouse; this also applies if we have undertaken
delivery.
Delay
in delivery
32. If we are able to anticipate that it will not be possible
for the goods to be delivered within the delivery period, we will
immediately inform the partner in writing of the reasons for this,
and also if possible indicate the probable delivery date.
33. In the event of delivery being delayed by one of the circumstances
as set forth in Article 55 below, or as a result of any action
or omission on the part of the partner, an extension of the delivery
period will be granted appropriate to the circumstances.
34. The partner is only entitled to withdraw from the contract
if we are responsible for the delivery date not being met and
the partner has allowed us a reasonable period of grace without
result.
Reservation
of title
35. We reserve the right of ownership in respect of the goods
supplied until such time as all claims under the business relationship
with the partner have been met.
36. The partner is entitled to sell these goods in the regular
course of business, provided it meets its obligations arising
from the business relationship with us in good time. However,
it may neither pledge the reserved goods nor transfer ownership
of them as security. It is obliged to protect our rights if goods
which are subject to reservation of title are resold on credit.
37. In the event of breaches of its duties by the partner, in
particular in the case of delayed payment, we shall be entitled,
after a reasonable period of grace allowed to the partner for
performance has elapsed without result, to withdraw from the contract
and take back the goods; this shall not affect the statutory provisions
concerning cases where it is not necessary to allow a period of
grace. The partner shall be obliged to surrender the goods.
We shall be entitled to withdraw from the contract if an application
is filed for insolvency proceedings to be instituted against the
partner's assets.
38. With immediate effect the partner assigns to us as security
all claims and rights deriving from the sale or any hiring, for
which we may have given the partner permission, of goods over
which we have rights of ownership. We hereby accept the assignment.
39. Any working or processing of the goods which are subject to
reservation of title shall at all times be carried out by the
partner on our behalf. If the goods which are subject to reservation
of title are processed or inseparably mixed with other items not
owned by us, we shall acquire joint ownership of the new product
in the proportion of the invoice value of the goods which are
subject to reservation of title to the other processed or mixed
items at the time of processing or mixing.
If our products are combined or inseparably mixed with other moveable
items to form a single product and the other product is deemed
to be the principal product, the partner shall transfer joint
ownership to us on a pro rata basis, as far as the principal product
is owned by it. The partner shall maintain ownership or joint
ownership on our behalf. In all other respects the same shall
apply to the product created by processing or combination or mixing
as to the goods which are subject to reservation of title.
40. The partner must inform us immediately of enforcement measures
being taken by third parties in respect of the reserved goods
by handing over to us the documents required for any intervention.
This also applies to infringements of any other kind.)
41. If the value of the existing securities exceeds the secured
claims in total by more than 20 per cent, we undertake, at the
partner's request, to release securities of our choice in this
respect.
Material
defects
42. The quality of the goods is determined exclusively by the
agreed technical supply specifications. In the event of our having
to supply in accordance with drawings, specifications, samples
and the like provided by our partner, the latter will take over
the risk of fitness for the intended use. The condition of the
goods in accordance with the contract is determined as at the
time of transfer of risk in accordance with Article 31 above.
43. Any material defects in respect of any defect deriving from
unsuitable or improper use, defective assembly or operation by
the partner or third parties, normal wear and tear, defective
or negligent handling, will also be excluded as the consequences
of unsuitable modifications or repairs undertaken by the partner
or third parties without our approval.
The same shall apply to defects which only reduce the value of
the goods or their fitness for their intended use to an insignificant
extent.
44. Claims for material defects shall become statute-barred after
12 months. This shall not apply where the law prescribes longer
periods of time as mandatory, particularly for defects in a building
and in a product which has been used in accordance with its customary
form of use for a building and has caused the latter to be defective.
45. Where it is agreed that the goods are to be accepted after
completion or that initial samples are to be tested, notification
of defects which could have been discovered by the partner under
careful acceptance or testing of initial samples is excluded.
46. We must be given the opportunity of assessing the notified
defect. The goods complained of must be returned to us immediately;
we will take over the transport costs where the notice of defect
is justified. In the event of the partner failing to observe these
obligations, or carrying out modifications of the goods which
are complained of without our consent, he will lose any claims
for material defects.
47. In the event of notice of defect which is justified and made
at the due and proper time, we will, at our choice, make improvements
to the goods complained of or supply a replacement free of defect.
48. In the event of our failing to meet these obligations, or
failing to do so within a reasonable time in accordance with the
terms of the contract, the partner may set in writing a final
deadline within which we must fulfil our obligations. In the event
of this period expiring without result, the partner may demand
reduction of the price, withdraw from the contract or himself
carry out, or have the necessary subsequent improvement carried
out by a third party at our cost and risk. There shall be no reimbursement
of costs if the expenses increase because the goods have been
brought to another place after delivery by us, unless this means
that the goods are being used as they were intended to be.
49. The partner has statutory rights of recourse against us only
in so far as the partner has not reached any agreements with its
customer which go beyond the statutory claims for defects. In
addition, Article 48, last sentence, applies accordingly to the
scope of the rights of recourse.
Other
claims, liability
50. Unless otherwise specified below, any additional or more extensive
claims by the partner against us are excluded. This shall apply
in particular to claims for damages for a breach of duties arising
from the obligation or from unlawful acts. We are therefore not
liable for any damage not deriving from the delivered goods themselves.
We are in particular not liable for any loss of profit or other
financial losses by the partner.
51. The limitations of liability indicated above do not apply
in the case of specific intent, gross negligence on the part of
our legal representatives or senior employees, and in the event
of culpable violation of significant contractual obligations.
In the event of culpable violation of significant contractual
obligations we are liable - other than in cases of specific intent
or gross negligence on the part of our legal representatives or
senior employees - only for standard contractual loss, or loss
which might reasonably have been expected.
52. The limitation of liability is also not applicable in those
cases where there is liability in accordance with product liability
laws in the case of defects in goods supplied for private use.
It is also not applicable in case of injury of life, body or health
and in the absence of guaranteed characteristics, if, and insofar
as the object of the guarantee was to cover the partner against
any losses not deriving from the goods supplied themselves.
53. Insofar as our liability is excluded or limited, this is also
applicable to the personal liability of our employees, workers,
personnel, legal representatives and vicarious agents.
54. The legal provisions relating to burden of proof are not affected
by this.
Force
majeure
55. Acts of God, industrial disputes, disturbances, official measures,
non-arrival of deliveries from our suppliers and other unpredictable,
unavoidable and serious events will release the contracting partners
from their duty to perform for the duration of the disturbance
and to the extent of their effect. This is also applicable where
these events occur at a time when the contracting partner concerned
is in default, unless the delay is caused intentionally or gross
negligently. The contracting partners are obliged, so far as is
reasonable, to provide the necessary information immediately and
in good faith to adjust their obligations to the changed conditions.
Place
of performance, place of jurisdiction and applicable law
56. Unless otherwise indicated in the order confirmation, the
place of performance is our principal place of business.
57. The place of jurisdiction for all legal disputes, including
any action relating to payment bills of exchange or cheques, is
our principal place of business. We are also entitled to bring
an action at the place of business of the partner.
58. The contractual relationship is exclusively subject to the
laws of the Federal Republic of Germany. Application of the United
Nations Convention on Contracts for the International Sale of
Goods of 11 April 1980 (CISG - ”Vienna Sales Convention”)
is excluded.
