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1. Order Acceptance
1.1 The following Terms and Conditions of Business apply exclusively to the business relations between our customers and us. Any conflicting terms and conditions of business of the Customer are hereby rejected. They shall be recognised only and insofar as we previously confirm the same in writing.
The application of our Terms and Conditions of Business is also agreed for all future contracts.
1.2 Our quotations are without obligation. A contract comes into being only after we have confirmed a Customer order. The extent of our delivery obligations, in particular with regard to details of quantity and characteristics, is determined solely by our written quotation and/or our written confirmation of order.
1.3 Contracts between the Customer and us and any changes or additions to the same must be in writing. This also applies to verbal and collateral agreements and to any waiver of the requirement for the written form. This also applies to these Terms and Conditions of Business.
Guarantees can be validly granted only if they are clearly described as such in our confirmation of order.
1.4 It is exclusively the Customer’s responsibility to examine the suitability of our products for its purposes (including any further processing by the Customer and for the purposes of its own customers). We accept no liability for the suitability of our products for the purposes of the Customer unless we have confirmed suitability in writing or expressly guaranteed the same.
2. Prices and Payments
2.1 Invoices are charged in Euro with value added tax at the statutory rate in application.
2.2 Our invoices are payable net (i.e. without deduction) 30 days date of invoice. Payments made by the Customer are always used to settle the oldest outstanding receivable first.
The Customer may withhold collection commission and/or delcredere commission only after prior conclusion of a written collection and/or delcredere agreement between the Customer and us.
2.3 In the event of payments through third parties, in particular under settlement agreements and/or delcredere agreements, the purchase price debt is deemed to have been met only after we have received the payment.
2.4 If one of our outstanding receivables remains unpaid after a reminder has been sent and another two weeks have passed, all our receivables arising from the business relations with the Customer become due for payment immediately. We are then entitled to undertake further deliveries only against cash in advance or the furnishing of adequate security.
2.5 The acceptance of bills of exchange or cheques takes place always on account of performance only; bills of exchange must be free of charge for us and without deduction of discount.
2.6 Rights of set-off or to withhold payment can only be asserted in the case of counterclaims that we have acknowledged or that have been judicially confirmed.
3. Delivery
3.1 Deliveries are made – even in the event of carriage-paid delivery – at the risk of the Customer. Packaging (including cores and core plugs) is weighed and charged for. In the event of delivery without packaging, the outer layers are deemed to be packaging.
3.2 Impediments to of our business operations and/or business operations of our suppliers for which we are not responsible, in particular strikes, lawful lockouts, orders by the authorities as well as all other cases of force majeure, have the effect of extending an agreed delivery period for the duration of the obstruction plus a reasonable period for the resumption of operations. The same applies in the event of operating stoppages, defects in raw materials or operating materials, defects in transport facilities or in the event of late, incorrect or inadequate delivery by our suppliers, if such circumstances are not our fault. If, in such cases, the agreed delivery period has been exceeded by more than 10 weeks, the Customer and we have the right to withdraw from the contract. The right of withdrawal exists prior to this only if we have previously notified the Customer in writing that we are not able or are no longer able to perform the Contract.
The above restriction does not apply to fixed-date transactions.
3.3 If we are in default with delivery, the Customer may set us a reasonable period of at least 2 weeks for performance, providing that no exceptional circumstances are involved which allow the setting of a deadline to be waived, and after fruitless expiry of this period, withdraw from the Contract by making a written declaration to this effect.
If the Customer does not already declare at the time of setting the deadline whether it is continuing to insist on performance or wishes to make use of its right of withdrawal, we are released from our duty to perform until such time as we receive such declaration. If the Customer has failed to make a declaration within a further period of 2 weeks, we are entitled to withdraw from the contract provided that we previously notify the Customer of this fact in writing.
This does not affect the Customer’s right to claim damages, which is otherwise determined by the requirements of Article 6.
3.4 We are entitled to make part deliveries.
3.5 We reserve the right to make excess or short deliveries by up to 10% with corresponding adjustment of the invoice price. Short deliveries up to this extent are not deemed to be too short and do not constitute defects.
3.6 We reserve the right to deliver goods with minor deviations in colour, surface, opacity, transparency, grade, strength, purity and smoothness. Deviations in strength of up to 10% are deemed to be minor.
Deviations in basis weight from roll to roll of up to 4%, in roll diameter by up to 5 cm and in roll width by up to 5 mm are admissible. 10% of the total delivery may be in the form of residual rolls with smaller diameters.
There are no defects if the basis weight differs within individual rolls by up to 8% from the average. Also deviations that exceed these values (4% from roll to roll and 8% within individual rolls) do not constitute defects, if the deviations account for less than 5% of the total quantity.
4. Reservation of Title
4.1 Title to the goods delivered ("reserved-title goods”) passes to the Customer only after the final payment of all receivables that have arisen or arise in the future from the business relations. In the event of multiple receivables or a current account, the reservation of title is deemed to be security for the balance of receivables, even if individual deliveries of goods have already been paid for. The reservation of title also refers to new goods resulting from the combining, mixing or processing in the relation to the invoice value of the goods that have been combined or mixed.
4.2 The Customer is entitled to sell the reserved-title goods in the normal course of business. Pledges or transfers of ownership as security are inadmissible. The receivables arising from the resale or based on another legal ground in respect of the reserved-title goods, including the balance of all receivables from the current account with the Customer, are already now assigned to us as security in the amount of the invoice value of the reserved-title goods. The Customer is irrevocably empowered to collect the receivables assigned to us in its own name for our account. This right of collection is extinguished, if the Customer fails to comply with its payment obligations towards us, gets into payment difficulties or compulsory execution measures are levied against it. Payments received from the sale of our goods or on any other legal basis are received and held in trust on our behalf. At our request, the Customer is obliged to notify its customers immediately of the assignment to us and provide us with all information and documents required for collection.
4.3 In the event of attachments of the reserved-title goods by third parties, the Customer shall draw the attention of the latter to the third-party ownership and notify us of the attachments immediately.
In the event that the Customer has been in default with payment for more than 3 weeks, we are entitled, after setting a reasonable deadline, providing that no exceptional circumstances are involved which allow the setting of a deadline to be waived, to withdraw from the contract, to recover the reserved-title goods and to enter the premises in which the reserved-title goods are stored or to require the assignment of rights of surrender held by the Customer against third parties. This does not affect our right to claim damages. To this extent, the Customer is also liable for slight negligence.
4.4 If the value of all reserved-title goods and other securities of the Customer exceeds the value of receivables secured by more than 20%, the Customer may require the release of reserved-title goods or securities up to this amount at our discretion.
5. Claims of the Customer based on Defects
5.1 The Customer must notify us of wrong deliveries, quantity errors or recognisable defects in writing within a period of 7 days. Defects that were not recognisable even during proper examination at the time of accepting the goods must be notified in writing within a period of 2 weeks of their discovery at the latest. To preserve the rights of the Customer, it is sufficient to send the notification of complaint within the aforementioned period.
5.2 In the event of timely and justified notifications of defects, we deliver replacements within a reasonable period. In the event that the replacement delivery is defective and we fail to make a second replacement delivery within a reasonable period of time, the Customer may withdraw from the contract or reduce the purchase price instead. The Customer’s right to claim damages is determined according to the requirements of Article 6. This does not affect §444 German Civil Code (BGB).
A right of withdrawal and a claim to damages in lieu of performance for breach of duties not related to performance as per § 241(2) is available to the Customer in addition to its statutory rights only if it has previously sent us a written warning and we have nevertheless failed to cease the breach of duties.
6. Liability
6.1 Our liability – regardless of the legal basis – is limited to damage that we or our employees or contractors have caused intentionally or by gross negligence or for breach of duties essential to the purposes of the contract on which the Customer was entitled to rely that have been brought about through slight negligence.
6.2 Our liability is limited in amount to the damages foreseeable at the time of conclusion of the contract or, at the latest at the time of commission of the breaches of duty as the damages typical in comparable transactions of this kind, unless we are liable for intent or gross negligence on the part of our legal representatives or management executives.
6.3 This does not affect claims of the Customer based on the German Product Liability Act or based on harm to life, physical injury or harm to health.
7. Statute of Limitations
Claims based on defects become statute-barred within a year of delivery of the goods to the Customer.
Claims to compensation that do not arise in connection with a defect, become time-barred within one year from the end of the year in which the claim arose and the Customer became aware of the circumstances founding the claim for compensation or, without being grossly negligent, should have become aware of them.
This above does not apply to claims that are based on a malicious or grossly negligent breach of duty on our part. Otherwise, Article 444 Civil Code (BGB) remains unaffected.
8. Place of Performance, Court of Jurisdiction and Governing Law
8.1 Place of performance is Gelsenkirchen. Court of jurisdiction for both parties, also for cheque and bill of exchange proceedings, is Krefeld. We are also entitled to seise another court that is competent under the law.
8.2 The legal relations between us and the Customer arising from or in connection with the business relations are governed by the law of Federal Republic of Germany as it applies to persons domiciled in Germany, however, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
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