General Terms and Conditions of Delivery and Payment of Effertz Tore GmbH
As of: 1 August 2015
1.1 All deliveries, services and offers from Effertz Tore GmbH (hereinafter called "Effertz") shall be based exclusively on these General Terms and Conditions of Delivery and Payment. These shall form part of all contracts that Effertz concludes with its contractual partners (hereinafter also called "Ordering Party") concerning the deliveries or services that it offers. These shall, even if not separately agreed upon again, also apply to all future deliveries, services and offers to the Ordering Party.
1.2 Terms and conditions of business of the Ordering Party, or of third parties, shall not apply, even if Effertz does not separately object to their application in individual cases. Even if the Or-dering Party makes reference to a letter containing, or referring to, terms and conditions of busi-ness of the Ordering Party or of a third party, this shall not constitute consent to the application of those terms and conditions of business.
1.3 Effertz shall retain rights of title and copyrights in samples, cost estimates, offers, cata-logues, prospectuses, illustrations, drawings and other comparable documents, as well as in information of a physical and non-physical nature, including information in electronic form. Such items, documents and information shall not be made accessible to third parties.
1.4 Effertz, as the supplier, shall be bound by its offers for four weeks from receipt at the Order-ing Party.
Prices shall be in Euros, and shall, unless otherwise agreed upon, be ex works and subject to the addition of value-added tax at the statutory rate, as well as packaging costs, freight charges, insurance costs, assembly costs, construction site costs, customs duty in the case of delivery abroad, charges and other public levies.
If, in cases where the agreed delivery period exceeds four months, certain costs significantly change, such as in particular labour costs, the cost of primary materials or energy costs, the agreed price may, on the basis of reasonable discretion, be proportionately adjusted commensu-rate with the effect of the costs concerned.
3. Delivery Period
3.1 Delivery and assembly periods shall be non-binding, unless otherwise expressly agreed upon. The delivery period shall begin on the date when the order is acknowledged, but not be-fore all details material to the execution of the order, such as in particular binding dimensions, have been specified. The delivery period shall be calculated according to business days (Mon-day to Friday), and shall be deemed met, if,
a) in the case of contracts under which the Ordering Party organises the transportation, a notifi-cation of readiness for collection has been sent to the Ordering Party within the agreed period;
b) in the case of delivery without assembly, where Effertz organises the transportation, the goods have left the factory within the agreed period or, if the Ordering Party declares itself una-ble to take delivery of the goods, a notification of readiness for shipment has been sent to the Ordering Party within the agreed period;
c) in the case of delivery with assembly, assembly has been completed within the set period and is ready for acceptance by the Ordering Party or, if a trial is provided for under the contract, as-sembly has been completed within the set period and is ready for the execution of such trial.
3.2 In the event of default in delivery or performance, a reasonable grace period shall be set. Insofar as Effertz is impeded in the performance of its obligations as a result of the occurrence of any unforeseeable extraordinary events that it was unable to avert despite having exercised the diligence to be reasonably expected of it in the circumstances of the specific case concerned, the period for delivery or performance shall be extended by the duration of such disruption, plus a reasonable start-up period. This shall apply to the occurrence of events such as, in particular, official intervention, operational disruptions, industrial disputes, delayed delivery of essential raw and auxiliary materials, whether at Effertz's factory or at its suppliers. If delivery or performance becomes impossible, not only temporarily, as a result of unforeseeable extraordinary events, Effertz shall be entitled to rescind the contract without the Ordering Party being entitled to de-mand compensatory damages. Notification of such hindrances shall be given without delay.
3.3 Effertz shall be entitled to make sub-deliveries, if
• the Ordering Party is able to use such sub-delivery for the purpose intended under the contract,
• delivery of the residual goods ordered has been secured, and
• no significant extra expenditure or additional costs are incurred upon the Ordering Party as a result thereof (unless Effertz agrees to bear these costs).
4. Passing of Risk, Acceptance
Unless otherwise agreed upon, shipment shall take place on a carriage unpaid basis, ex works and without any obligation to choose the cheapest method of shipment. The risk shall pass to the Ordering Party when the delivery is handed over to the shipping agent or loaded onto a ve-hicle belonging to Effertz or the Ordering Party. At the Ordering Party's request, the consign-ment shall, at the Ordering Party's expense, be insured by Effertz against breakage, transporta-tion damage and fire damage. If shipment is delayed for reasons not imputable to Effertz, the risk shall pass to the Ordering Party when notification of readiness for shipment is received. If the Ordering Party defaults on taking delivery, Effertz shall be entitled to place the goods in its own warehouse or a third-party warehouse. The costs in connection therewith shall be borne by the Ordering Party.In the case of delivery with assembly, the risk shall pass to the Ordering Party when the perfor-mance rendered is accepted. In cases where several items are delivered, and assembly is in-cluded, Effertz shall be entitled to declare partial acceptance in respect of the individual facilities assembled. If shipment or delivery, or the commencement or execution of assembly, is delayed at the Ordering Party's request or for reasons imputable to the Ordering Party, the risk for the period of delay shall pass to the Ordering Party.
5. Warranty, Servicing, Liability
5.1 The discovery of any defects or any absence of features that had been guaranteed must occur without delay and must be communicated to Effertz in writing, specifying the defects, with-in eight (8) days of receipt of the delivery. This time limit shall be deemed met only if such notifi-cation is received at Effertz within this time limit.
5.2 All details concerning the suitability, processing and/or application of the product, including such details provided in prospectuses and on the Internet, as well as any technical advice or other information given shall be non-binding, but be provided on the basis of Effertz's best knowledge. However, this shall not release the Ordering Party from its obligation to carry out its own inspections and tests. Effertz shall be liable for a particular use of the products only if Effertz has been notified of such use in writing beforehand, and Effertz has acknowledged such use.
5.3 Effertz hereby reserves the right to eliminate the defects reported (rectification) or deliver a replacement. If rectification or replacement fails twice, the Ordering Party shall be entitled to a price reduction or rescission. Effertz's obligation to pay compensatory damages shall be subject to the prerequisites laid down in 5.6.
The Ordering Party shall, after having consulted Effertz, give Effertz the time and opportunity necessary for carrying out any rectification or replacement necessary. Otherwise, Effertz shall be exempt from liability for defects. Of the direct costs arising as a result of such rectification or replacement, Effertz shall, insofar as the complaint proves to be justified, bear the cost of the replacement, including shipment to the original place of delivery. The Ordering Party shall bear all other costs, in particular the cost of dismantling and installation.
5.4 The warranty shall not relate to faults arising as a result of normal wear and tear, nor to damage arising after the passage of risk as a result of incorrect or negligent treatment, exces-sive use, unsuitable operating material, defective execution of the construction work or an un-suitable building foundation or as a result of chemical or environmental influences that Effertz was unaware of or that were not apparent to Effertz under the contract. Effertz shall have no obligation under the warranty, if the Ordering Party has altered the item purchased or has not concluded a servicing agreement with Effertz, unless the defect concerned would have arisen even if Effertz had carried out servicing.
5.5 The warranty period shall be one year from delivery or, in the case of delivery with assem-bly, one year from acceptance. Insofar as the Ordering Party itself installs the purchased item at a third party, or insofar as Effertz - as a subsupplier - delivers the purchased item to the Ordering Party's customer and possibly assembles this item, the statutory warranty periods shall apply.
5.6 Damage claims of the Ordering Party on any legal basis whatsoever, in particular on ac-count of any breach of duties arising from the obligatory relationship or on account of tort, shall be excluded. This shall not apply:
• in the case of loss arising from mortal injury, physical harm or health damage based on a breach of duty imputable to Effertz, and/or
• in the case of other loss due to an intentional, fraudulent or grossly negligent breach of duty on the part of Effertz, and/or
• in cases where a guarantee has been provided or a procurement risk has been taken on, or in cases under the Produkthaftungsgesetz [Product Liability Act], and/or
• in the case of any culpable breach of a duty where fulfilment is a prerequisite for the proper implementation of the contract, where a breach would jeopardise the attainment of the pur-pose of the contract and/or where the Ordering Party may rely upon compliance. In such case, Effertz's liability shall, except where such breach of duty has been committed with gross negligence or wrongful intent, be limited to the sum of the foreseeable loss. Claims based on lost profit, unexpended costs, third-party damage claims or any other indirect or direct consequential loss may not be demanded in the case of only ordinary negligence, un-less a quality feature guaranteed by Effertz was specifically intended to protect the Ordering Party against such loss. Effertz shall not be liable in the event of any breach of other duties in cases of ordinary negligence.
6. Payment, Set-off
6.1 All invoices shall be due immediately and be payable without any deduction, unless other-wise expressly agreed upon. If the Ordering Party defaults on payment, default interest at the rate of 8 % above the base interest rate of the European Central Bank shall be charged, unless the statutory rate for default interest is higher. The Ordering Party's credit-worthiness shall be a prerequisite for all transactions. If, after the contract has been concluded, Effertz becomes aware of circumstances that are likely to significantly reduce the Ordering Party's credit-worthiness and that jeopardise payment by the Ordering Party of Effertz's outstanding claims arising from the respective contractual relationship (including those arising from individual orders to which the same contract applies), Effertz shall be entitled to make the execution, or perfor-mance, of any deliveries or services still outstanding conditional upon advance payment or the provision of collateral. In such case, Effertz may, after a set time limit has expired, also rescind the contract or demand compensatory damages for non-performance, if no suitable collateral is provided, or no advance payment is made, within the time limit. If the Ordering Party defaults on a partial payment, Effertz may declare the entire residual claim due immediately and, if the Or-dering Party is in arrears after a reasonable time limit set by Effertz has expired, rescind the con-tract or demand compensatory damages for non-performance. Any acceptance of a bill of ex-change shall be subject to clearance of the bill of exchange. Discount or collection charges shall be borne by the Ordering Party. All payments shall be made directly to Effertz. Representatives and fitters shall not be authorised to collect payment. Advance payments shall not yield interest.
6.2 The Ordering Party shall be entitled to rights of set-off only if counter-claims have been de-termined by a final and non-appealable court judgement, are undisputed or have been recog-nised by Effertz, and notification of set-off has been given fourteen (14) days before the due date. The Ordering Party shall not be entitled to a right of retention on account of any counter-claims that are disputed, have not been recognised or have not been determined by a final and non-appealable court judgement, unless the Ordering Party does not have full merchant status and is not a legal entity under public law or a special fund under public law.
7. Retention of Title, Release Clause
7.1 Effertz shall retain title to the goods until all claims accruing to Effertz against the Ordering Party from this business relationship, including claims arising in future, also from contracts con-cluded at the same time or at a later date, have been settled. This shall apply even if some or all claims of Effertz have been included in a running account, and the balance has been estab-lished and recognised.
7.2 The Ordering Party shall be entitled to resell in the ordinary course of business the goods under retention of title, but hereby assigns to Effertz as collateral all claims accruing to it against purchasers or third parties from such resale. The same shall apply to other claims that substitute for the goods under retention of title or otherwise ensue in respect of the goods under retention of title, such as insurance claims or tort claims in the event of loss or destruction. Effertz hereby accepts this assignment.
In case goods under retention of title are sold unprocessed or after having been processed or combined with items owned exclusively by the Ordering Party, the Ordering Party hereby fully assigns to Effertz as collateral the claims ensuing from such resale. In case goods under reten-tion of title are, after having been processed/combined, sold by the Ordering Party together with goods not belonging to Effertz, the Ordering Party hereby assigns the claims ensuing from such resale in the sum of the value of the goods under retention of title along with all ancillary rights, and with a higher ranking than the remainder. Effertz hereby accepts this assignment. The Or-dering Party shall be revocably authorised to collect these claims even after these have been assigned. Effertz's power to collect such claims itself shall remain unaffected hereby. However, Effertz hereby undertakes not to collect such claims as long as the Ordering Party properly meets its payment obligations and other obligations. The Ordering Party's authorisation to collect such claim shall lapse, without this requiring revocation, if the institution of insolvency proceed-ings or comparable proceedings concerning the Ordering Party's assets is applied for. Effertz may demand that the Ordering Party make known to Effertz the claims assigned and the debtors concerned, provide all information necessary for collecting the claims, hand over all documents relating thereto and notify the debtors of the assignment.
7.3 Any reworking or processing of the goods under retention of title by the Ordering Party shall be deemed to have been carried out on behalf of Effertz, and shall not give rise to any obliga-tions for Effertz. If the goods under retention of title are processed, combined, mixed or blended with other goods not belonging to Effertz, Effertz shall be entitled to the resulting co-ownership share in the new item in the ratio of the value of the goods under retention of title in relation to the other processed goods at the time of processing, combining, mixing or blending. The parties to the contract hereby agree that, if the Ordering Party acquires sole title to the new item, the Ordering Party shall grant Effertz joint title to the new item in the ratio of the value of the pro-cessed, combined, mixed or blended goods under retention of title, and shall hold this new item in safekeeping for Effertz free of charge.
7.4 In case the Ordering Party builds goods under retention of title into a third party's land as an essential component, the Ordering Party hereby assigns, in the sum of the value of the goods under retention of title along with all ancillary rights, including any such right to the granting of a debt-securing mortgage, all fee claims ensuing against the third party or the party concerned. Effertz hereby accepts this assignment.
7.5 At the Ordering Party's request, Effertz shall release collateral to which Effertz is entitled from its retention of title, or the items or claims substituting for such collateral, insofar as the val-ue thereof persistently exceeds by more than 50 % the sum of the claim secured. The Ordering Party shall be responsible for selecting the collateral to be released in accordance therewith.
7.6 If third parties seize the goods under retention of title, particularly by means of attachment, the Ordering Party shall promptly point out to them Effertz's title to such goods, and shall inform Effertz of such seizure in order to enable Effertz to enforce its rights of title. Insofar as such third party is not in a position to reimburse Effertz for the court costs or out-of-court costs arising in this connection, the Ordering Party shall be liable for these in relation to Effertz.
8. Place of Performance, Choice of Law and Place of Jurisdiction
8.1 The place where Effertz's registered office is situated shall be the place of performance for all obligations arising from the contractual relationship.
8.2 If the Ordering Party is a merchant, a legal entity under public law or a special fund under public law, the court at the place where Effertz's registered office is situated shall be the place of jurisdiction for all legal disputes, also in proceedings concerning a bill of exchange or a cheque. Effertz may, at its option, also bring an action against the Ordering Party at any other court that has jurisdiction according to the law.
8.3 Subsection 8.2 shall not apply insofar as the Ordering Party has its registered office in a country that is neither a member of the EU nor a member of the EFTA (the Member States of the EFTA are Iceland, Norway, Switzerland and Liechtenstein). Instead, all disputes ensuing from or in connection with the respective contract shall be definitively settled in accordance with the Arbitration Code of the International Chamber of Commerce (ICC) by three arbitrators desAs of: 1 August 2015
ignated in accordance with the above Arbitration Code. Düsseldorf / Germany shall be the place of such arbitration proceedings. The laws of the Federal Republic of Germany, excluding
• the conflict-of-law provisions of international private law and
• the provisions of the UN Sales Law (CISG),
shall be the substantive law applicable. German shall be the language of the arbitration pro-ceedings.
8.4 The laws of the Federal Republic of Germany, excluding the UN Sales Law (CISG), shall apply to the contractual relationship and all claims and rights resulting therefrom between the parties.
As of: 1 August 2015