GENERAL TERMS AND CONDITIONS
(as at 22.12.2015)
- The following General Terms and Conditions (GTCs) of Hans Buecker GmbH (hereinafter referred to as "Bücker") shall exclusively apply to all current and future business relations with the Orderer (hereinafter also referred to as "Customer").
- We do not accept any deviating GTCs unless we have consented thereto in writing concurrently with our explicit waiver of enforcement of our own GTCs.
- Our GTCs shall solely apply to companies in the sense of Section 14 BGB (German Civil Code), legal persons governed by public law or special funds under public law.
§2 Offers and Conclusion of Contract
- Our offers shall be non-binding and without engagement unless otherwise agreed in writing.
- Purchase orders, amendments of, and supplements to contracts or ancillary agreements shall require the written form. The same shall apply to any special designs according to the Orderer's specifications.
- Statements by Bücker on the deliverables or service (such as weights, dimensions, utility value, load-carrying capacity, tolerances and technical data) and representations of the same (such as drawings and figures) shall only be deemed to be approximate unless the usability for the contractually intended purpose requires exact conformity. They are no guaranteed characteristics but descriptions or distinctive features of the deliverables or service. Commercially customary deviations and deviations which are the result of statutory provisions or represent technical improvements, and the replacement of parts by equivalent parts shall be permissible to the extent that they do not impair the usability for the contractually intended purpose.
- The conclusion of contracts shall be subject to the proviso that our subcontractors supply us in a proper and timely manner. This shall only apply in cases where non-delivery is not our responsibility, particularly in the event that we have entered into a congruent covering transaction with our subcontractors.
In such a case the Customer shall be informed immediately of the non-availability of the service, and any consideration shall be refunded without delay.
- The prices shall be valid for the articles listed in the acknowledgements of order. Additional or special services shall be charged for separately. Unless specified otherwise, the prices are to be understood as EURO prices, ex works, plus the legal value-added tax applicable at the time of contract conclusion, and exclusive of shipping costs, fees, and - in the case of export deliveries - customs duties and other public dues.
- Freight costs for domestic deliveries and deliveries to destinations abroad which are shipped by a forwarding agent due to their nature, shall be charged for separately and shall be shipped carriage unpaid and exclusive of packaging, customs duties or other expenses.
§4 Terms of Payment / Limitation of Setoffs / Retention
- Our invoices shall payable within 10 days from the date of invoice at 2% discount or within 30 days without deduction.
- Any occurrence of arrears and the legal consequences resulting therefrom shall be subject to the statutory provisions.
- Offsetting on the part of the Orderer with claims which are neither accepted nor legally established shall be excluded to the extent that such claims are not based on the same contractual relationship. Any right of retention on the part of the Orderer on the grounds of counterclaims shall be excluded to the extent that such claims are not based on the same contractual relationship.
§5 Delivery Time / Storage / Liquidated Damages / Default of Acceptance / Fixed Date Transaction
- Delivery times shall not be binding unless agreed in writing.
- The delivery time stated by us shall commence at the earliest with the posting of our acknowledgement of order, but not before the clarification of all technical questions, the procurement of documents, permissions, releases to be obtained by the Orderer and before receipt of the agreed payment in advance, if any. The delivery time shall be deemed to have been adhered to when the deliverables have left our works or warehouse or when readiness for dispatch has been advised before its expiration.
- In the event of delays in delivery and performance due to force majeure or the occurrence of unforeseen impediments beyond our control, the agreed delivery time shall be extended by the duration of the impediment plus a reasonable start-up time. In the event of the aforementioned delays in delivery and performance, we shall furthermore be entitled to rescind the contract in full or in part with regard to the unfulfilled portion.
- Where delivery and performance are persistently delayed, the Orderer shall be entitled to rescind the contract with regard to the unfulfilled portion after having previously granted a reasonable extension of time. The Orderer shall only be entitled to rescind the entire contract if partial performance is of no interest to the Orderer.
- Partial shipments shall be permissible if this is acceptable to the Orderer.
- In case the delivery time is extended or if we are relieved from our obligation, the Orderer shall only be entitled to deduce any claims for damages in accordance with § 8.
- In the event that dispatch is delayed upon the Orderer's request, the Orderer shall be charged for the costs incurred by storage or, where storage is at our premises, at least 0.5 % of the invoice amount for each month of storage, commencing one month following the advice of readiness for dispatch. The Orderer shall have the right to furnish evidence of a lesser loss. We shall, however, also be entitled at our discretion to otherwise dispose of the deliverables after fruitless expiration of a reasonable grace period for acceptance and to resume delivery to the Orderer with a reasonable, new delivery time.
- Any default of acceptance shall be subject to the statutory provisions.
- In the event that adherence to the delivery time is of such vital importance to the Orderer that the Orderer is no longer interested in the ordered deliverables after expiration of this deadline (absolute fixed date transaction), this fact shall be separately agreed in writing.
§6 Transfer of Risk
The transfer of risk shall be subject to Section 447 BGB (German Civil Code). The same shall also apply to partial shipments and the provision of other services, and to the assumption of the shipping costs or to transportation and erection.
§7 Material Defects / Exclusion of Used Goods / Electroplating
- The statutory obligations of immediate examination and notification of defects in accordance with Section § 377 HGB (German Commercial Code) shall apply.
- The warranty period shall be one year from delivery of the goods or the equivalent action or omission of the Orderer. In the case of defects in building materials and components in the sense of Section 438 I No. 2 b BGB (German Civil Code), the warranty period shall be 5 years.
- The Orderer shall receive no guarantees in the legal sense from Bücker. Guarantees which are granted to the Orderer by third parties, and manufacturer guarantees in particular, shall not be affected thereby.
- As a basic rule, only the manufacturer's product description shall be deemed as agreed for the characteristics of the deliverables. Public statements by the manufacturer shall not constitute any contractual statement on the characteristics of the deliverables or spare parts for these deliverables.
- The warranty shall only apply to deliverables which are used under normal operating and climatic conditions in the Federal Republic of Germany. In the event that the goods are intended for use under specific conditions of which we were not informed in advance, warranty for defects relating to such specific conditions shall be excluded.
- If a defect occurs for which we are responsible, we shall have the right, at our discretion, to rectify such defect by repair or replacement. To this end, the Orderer shall grant us a reasonable grace period unless the granting of the same proves to be unacceptable to the Orderer. In the event that such a grace period expires fruitlessly and we have failed to comply with our obligation, the Orderer shall be entitled to the statutory warranty rights.
- Minor deviations from the agreed characteristics with only insignificant impairment of the usability do not constitute a defect in the legal sense.
- Used goods, when purchased and delivered, shall be excluded from all warranty claims.
- Any further claims of the Orderer, and claims for damages in particular, shall be determined in accordance with § 8.
- The following supplementary provisions shall apply when ordering electroplating work:
- The material provided to us for treatment shall be free of casting skin, moulding sand, scale, oil carbon, burnt-in grease, welding slag, graphite and paint coatings. It shall not exhibit any pores, blowholes, cracks, laminations, etc. Threads shall have an adequate undercut. Failure to meet these requirements shall entitle us to decline the treatment - also partially - or to rescind the contract.
- If the Customer nevertheless insists on the treatment in spite of our warning that the material is inappropriate for this process or if the material provided to us for processing turns out to be inappropriate for the desired surface treatment for reasons which are not apparent to us, we shall be under no obligation to warrant a specific dimensional accuracy, adhesive strength, colour fidelity and corrosion resisting property of the applied coating to the extent that the defect is due to the inappropriateness of the material and not attributable to gross negligence or wilful intent on our part.
- We shall furthermore be under no obligation to warrant the adhesive strength when the material is deformed by the Orderer or any third party after the surface treatment. The same shall also apply in cases where deforming the samples was previously possible without any spalling of the electroplated coating.
- If the goods intended for surface treatment are not provided to us for test purposes for an adequate period of time, which should be at least six weeks, prior to commencing processing, we shall not be liable for any occurrence of corrosion damage unless caused by malperformance on our part as a result of wilful intent or gross negligence. In the event that we cannot perform short-term tests or other chemical and/or mechanical examinations in isolated cases, we shall be relieved from our liability for defects and consequential damage unless these are attributable to wilful intent or gross negligence.
- Hollow parts shall only be electroplated on their outer surfaces except where cavity treatment has been agreed in special cases. Immediate onset of corrosion on untreated surfaces shall not substantiate any right to claim warranty. It is hereby explicitly pointed out that condensation and friction may pose a risk of corrosion. The treated materials shall be packed, stored and transported in a proper manner.
- The Customer shall specify the minimum coating thicknesses at an agreed measuring point and use appropriate measures to prevent chemical and mechanical damage to the surface. We shall not be liable for damage due to atmospheric conditions or damage caused later by residues of the treatment process seeping out of laminations and other inaccessible cavities unless such damage is attributable to gross negligence or wilful intent.
§8 Exclusion of Claims for Damages
- Bücker's liability for claims for damages for whatever legal grounds, and in particular as a result of impossibility, delays, defective or wrong shipments, breach of contract, violation of obligations during contract negotiations and tortuous acts, to the extent that this involves culpability, shall be limited in accordance with this § 8.
- The limitations of this § 8 shall not apply to the Seller's liability for wilful intent and gross negligence, for guaranteed characteristics, for injury of life, bodily harm or damage to health. and for claims under the product liability law.
- Subject to the provision set forth in subsection (2), Bücker shall not be liable for slight and/or simple negligence of its executive bodies, legal representatives, employees or other vicarious agents unless a breach of material contractual obligations is involved. Material contractual obligations shall include the obligation for timely, defect-free delivery as well as consultation, protection and custody obligations which shall enable the Customer to use the deliverables in accordance with the contract or which are intended to protect life and limb of the personnel of the Customer or of third parties or to prevent substantial damage to the Customer's property.
- To the extent that Bücker is basically liable for damages pursuant to the preceding paragraphs of this section, such liability shall be limited to damage which Bücker foresaw on conclusion of the contract as being a possible consequence of a breach of contract or which Bücker should have foreseen in consideration of the circumstances which were known or should have known to Bücker when applying due diligence and attention. Indirect damage and consequential damage resulting from defects of the deliverables shall furthermore only be eligible for compensation as far as such damage can be typically expected in the course of the intended use of the deliverables.
- The aforementioned exclusions and limitations of liability shall equally apply in favour of Bücker's executive bodies, legal representatives, employees or other vicarious agents.
§9 Infringement of Third-Party Property Rights
- The Orderer shall warrant and represent to Bücker that the components to be processed by Bücker and the fabrications ordered by the Orderer are not subject to third-party property rights.
- The Orderer undertakes to hold Bücker harmless from and against any third-party claims on the grounds of an alleged and /or actual infringement of their property rights.
- Bücker undertakes to notify the Orderer forthwith of any third-party property right claims.
- The legal defence measures or settlement negotiations shall be coordinated with the Orderer as far as time permits. The costs incurred thereby shall be borne by the Orderer.
§10 Retention of Title
- We shall retain title to the deliverables until all payments arising from the supply contract and other business relations with the Orderer have been received in full, including all ancillary claims, interest and costs, and inclusive of all our receivables which may arise in the future.
- We shall be entitled to dispose of the deliverables after having taken them back. The proceeds from the disposal less reasonable disposal costs shall be offset against the Orderer's liabilities.
- In the event of seizure or other third-party interventions, the Orderer shall notify us forthwith thereof and confirm our right of ownership in writing to us and any third party. Any costs arising from third-party proceedings shall be borne by the Orderer.
- The Orderer shall be entitled to process and sell the deliverables in the course of ordinary business as long as the Orderer is not in default of payment. The Orderer shall not be authorised to pawn the deliverables or to pledge them as security. The Orderer hereby assigns to us as security all receivables arising from resales or any other legitimate claims relating to the goods subject to retention of title, up to the amount of the final invoice amount (incl. VAT). Insofar as a current account relationship exists between the Orderer and its buyer, the receivables assigned to us by the Orderer in advance shall also refer to the recognised balance, and in the event of the buyer's insolvency, to the then existing "causal" balance. We revocably authorise the Orderer to collect the receivables assigned to us in its own name and for our account. Our right to collect the receivables ourselves shall not be affected thereby. We, however, undertake to refrain from collecting such receivables as long as the Orderer duly meets its payment obligations arising from the proceeds received, does not default on payment and, in particular, does not apply for the opening of insolvency proceedings or ceases payment. In any such case the Orderer shall disclose to us the assigned receivables and the respective debtors, provide us with all the particulars required for collection, hand over to us the pertinent documents, and notify the debtor (third party) of the assignment.
- The processing or conversion of the deliverables by the Orderer shall always be carried out on our behalf. If the deliverables are processed or mixed with other objects which are not our property, we shall acquire co-ownership of the new item in proportion of the value of our deliverables to the other objects at the time of processing/mixing. The Orderer shall hold the sole ownership or co-ownership item thus created in safe custody on our behalf.
- We undertake to release securities we are entitled to upon the Orderer's request, insofar as the realisable value of our securities exceeds the value of the receivables to be secured by more than 10%. The selection of the securities to be released shall be incumbent upon us.
§11 Venue, Place of Performance, Applicable Law, Partial Invalidity
- When the Orderer is a merchant, legal person governed by public law or a special fund under public law, any legal proceedings shall be instituted in the court having jurisdiction over our principal place of business. We shall also be entitled to institute legal proceedings at the Orderer's principle place of business.
- The place of performance pursuant to Section 29 ZPO (German Code of Civil Procedure) shall be our principal place of business unless stated otherwise in the acknowledgement of order.
- The contractual relationships shall be governed exclusively by the law of the Federal Republic of Germany subject to the exclusion of the provisions on conflict of laws and subject to the exclusion of the Convention on Contracts for the International Sale of Goods (CISG).
- Should any of the foregoing provisions be or become wholly or partly ineffective or void, the validity of the remaining provisions shall not be affected thereby.