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- General Terms and Conditions of Sale and Delivery of Fenne Stahl GmbH
1. These Terms of Sale shall apply exclusively. We do not recognize any terms and conditions of the contracting party that contradict or deviate from our Terms of Sale. Deviating terms and conditions of the contracting party shall not apply even if they are contained in a confirmation letter from the contracting party following our order confirmation and we do not object to them. Our silence shall in any case be deemed as rejection.
2. These Terms of Sale shall also apply if we perform our contractual obligations in the knowledge of terms and conditions of the contracting party that contradict or deviate from our Terms of Sale.
3. Individual contractual agreements take precedence over these General Terms and Conditions.
4. Unless otherwise stipulated in the contract or these general Terms of Sale, declarations must be made in text form.
5. These Terms of Sale apply exclusively to entrepreneurs, legal entities under public law, or a special fund under public law.
6. Our Terms of Sale shall also apply to all future business transactions with the contracting party.
7. Our offers are subject to change and non-binding until the conclusion of the contract. If our order confirmation deviates from the order, our order confirmation shall apply unless the customer has objected to it in writing within 48 hours of dispatch.
Our sales staff are not authorized to make verbal collateral agreements or to give verbal assurances that go beyond the content of the written contract.
In cases of doubt, the Incoterms in their latest version shall be decisive for the interpretation of trade clauses.
1. The prices stated in our offers plus the applicable statutory value-added tax shall be decisive.
2. For deliveries made four weeks after the conclusion of the contract, we reserve the right to change prices in the event of an increase in our raw material and material costs of more than 2%. In this case, we are entitled to demand a price adjustment in accordance with the increase in raw material and material costs.
1. Unless otherwise agreed or stated in our invoices, the purchase price is due immediately after delivery without deduction of discount and is to be paid in such a way that we have the amount at our disposal on the due date; the costs of the payment transaction shall be borne by the buyer. The buyer shall only be entitled to a right of retention and a right of set-off to the extent that their counterclaims are undisputed or have been legally established and originate from the same contractual relationship.
2. If the payment term is exceeded or in the event of default, we shall charge interest at a rate of 8% points above the base interest rate, unless higher interest rates have been agreed. We reserve the right to claim further damages caused by default.
3. The buyer shall be in default at the latest 10 days after the due date of our claim, without the need for a reminder.
4. If it becomes apparent after the conclusion of the contract that our claim for payment is endangered by the buyer's lack of ability to pay, or if the buyer defaults on payment or other circumstances arise which suggest a significant deterioration in the buyer's ability to pay after the conclusion of the contract, or if the credit limit accepted by us or the goods credit limit signed by a goods credit insurer is reached, we are entitled to the rights arising from § 321 of the German Civil Code (BGB). The same applies to an obligation amount agreed between the parties. We are then also entitled to declare all not yet due claims from the ongoing business relationship with the buyer as due.
5. An agreed cash discount presupposes the complete settlement of all due liabilities of the buyer at the time of discounting.
1. Our delivery obligation is subject to correct and timely self-delivery, unless the incorrect or delayed self-delivery is our fault.
2. Information on delivery times is approximate. Delivery periods begin with the date of the order confirmation, but at the earliest with the clarification of all details of the order and the fulfillment of all obligations of the buyer (e.g., provision of all official certificates, provision of letters of credit, payment of advance payments, etc.). For compliance with delivery periods and dates, the time of dispatch ex works/warehouse is decisive.
3. If the goods are sent to the buyer, the risk of accidental loss or accidental deterioration of the goods shall pass to the buyer with their handover to the supplier's shipping agent, but at the latest upon leaving the factory or warehouse, regardless of whether the dispatch takes place from the place of performance or who bears the freight costs. If the goods are ready for dispatch and acceptance or dispatch is delayed for reasons for which the supplier is not responsible, the risk shall pass to the buyer upon receipt of the notification of readiness for dispatch.
4. We are entitled to make partial deliveries to a reasonable extent.
5. In the case of call-off orders, goods reported as ready for dispatch must be called off immediately.
6. Otherwise, we are entitled, after a reminder, to dispatch them at the buyer's expense and risk at our discretion or to store them subject to a charge and to invoice them. In the case of contracts with continuous delivery, we are to be given call-offs and grade classifications for roughly equal monthly quantities; otherwise, we are entitled to make the determinations ourselves at our reasonable discretion. If the individual call-offs exceed the total contract quantity, we are entitled, but not obliged, to deliver the excess quantity.
We can invoice the excess quantity at the prices valid at the time of the call-off or delivery.
7. Delivery periods begin with the date of our order confirmation, but not before all details of the order have been fully clarified; the same applies to delivery dates. Deadline commitments require written confirmation.
8. If the buyer does not fulfill contractual obligations on time - including effective or ancillary obligations - we are entitled to postpone our delivery periods and dates appropriately (without prejudice to our rights arising from the buyer's default).
9. We shall determine the forwarding agent or carrier. If the loading or transport of the goods is delayed for a reason for which the buyer is responsible, we are entitled to store the goods at our reasonable discretion at the buyer's expense and risk, to take measures deemed suitable for preserving the goods, and to invoice the goods as delivered. The same applies if goods reported as ready for dispatch are not called off within four days. The statutory provisions on default of acceptance remain unaffected.
10. In cases of force majeure and other unforeseeable performance obstacles for which we are not responsible - which also includes labor disputes, lack of raw materials, operational disruptions, transport obstacles, official measures; in each case also at our pre-suppliers - we are entitled to postpone the delivery for the duration of the performance obstacle. We will immediately inform the contracting party about the unavailability or delayed availability of the delivery item and, in the event of withdrawal, immediately refund the consideration provided by the contracting party.
11. If we default on a delivery, the contracting party must set a reasonable grace period in writing. After the unsuccessful expiration of the period, they may withdraw for those quantities and services that were not reported to them as ready for dispatch by the end of the grace period. Only if these partial quantities are useless to the contracting party does a withdrawal from the entire contract come into consideration.
1. All delivered goods remain our property (reserved goods) until all claims have been fulfilled, in particular also the respective balance claims to which we are entitled within the scope of the business relationship (balance reservation). This also applies to future arising and conditional claims, e.g., from acceptor's bills of exchange, and also if payments are made on specially designated claims. This balance reservation finally expires with the settlement of all claims still open at the time of payment and covered by this balance reservation.
2. Treatment and processing of the reserved goods take place for us as manufacturer within the meaning of § 950 BGB, without obligating us. The treated and processed goods shall be deemed to be reserved goods within the meaning of No. 1. In the event of processing, combining, and mixing of the reserved goods with other goods by the buyer, we shall be entitled to co-ownership of the new item in proportion to the invoice value of the reserved goods to the invoice value of the other goods used. If our ownership expires through combining or mixing, the buyer hereby already transfers to us the ownership rights to the new stock or item to the extent of the invoice value of the reserved goods and keeps it for us free of charge. Our co-ownership rights apply as reserved goods within the meaning of No. 1.
3. The buyer may only sell the reserved goods in the ordinary course of business under his normal terms and conditions of business and as long as he is not in default, provided that the claims from the resale pass to us in accordance with Nos. 4 to 6. He is not entitled to dispose of the reserved goods in any other way.
4. The claims arising from the resale of the reserved goods, together with all securities that the buyer acquires for the claim, are hereby already assigned to us. They serve to secure the same extent as the reserved goods. If the reserved goods are sold by the buyer together with other goods not sold by us, the claim from the resale shall be assigned to us in the ratio of the invoice value of the reserved goods to the invoice value of the other sold goods. When selling goods in which we have co-ownership shares in accordance with No. 2, a part corresponding to our co-ownership share shall be assigned to us.
5. The buyer is entitled to collect claims from the resale. This direct debit authorization expires in the event of our revocation, but at the latest in the event of default of payment, non-redemption of a bill of exchange, or application for the opening of insolvency proceedings. We will only make use of our right of revocation if it becomes apparent after the conclusion of the contract that our claim for payment arising from this or other contracts with the buyer is endangered by their lack of ability to pay. At our request, the buyer is obliged to inform his customers immediately of the assignment to us and to give us the documents required for collection.
6. The buyer must inform us immediately of a seizure or other impairments by third parties. The buyer bears all costs that must be expended to cancel the access or to return the reserved goods, provided they are not replaced by third parties.
7. If the buyer defaults on payment or fails to redeem a bill of exchange when due, we are entitled to take back the reserved goods and, for this purpose, to enter the buyer's premises if necessary. The same applies if it becomes apparent after the conclusion of the contract that our claim for payment arising from this contract or other contracts with the buyer is endangered by their lack of ability to pay. The taking back does not constitute a withdrawal from the contract. Provisions of the Insolvency Code remain unaffected.
8. If the invoice value of the existing securities exceeds the secured claims, including ancillary claims (interest; costs, etc.) by a total of more than 50%, we are obliged to release securities of our choice at the buyer's request.
1. Grades and dimensions are determined according to the DIN/EN standards and material sheets valid at the time the contract is concluded, in the absence of such, according to commercial custom. References to standards, material sheets, or factory inspection certificates as well as information on grades, dimensions, weights, and usability are neither assurances nor guarantees, nor are they declarations of conformity, manufacturer declarations, and corresponding marks such as CE and GS.
2. The weighing carried out by us or our pre-supplier is decisive for the weights. Proof of weight is provided by presenting the weighing slip. Where legally permissible, weights can be determined without weighing according to the standard. Unaffected are the customary commercial additions and deductions (commercial weights). Number of items, number of bundles, etc., stated in the dispatch notification are non-binding for goods calculated by weight. Unless individual weighing usually takes place, the total weight of the shipment shall apply in each case. Differences compared to the calculated individual weights are distributed proportionately among them.
1. If acceptance is agreed upon, it can only take place in the supplying plant or our warehouse immediately after notification of readiness for acceptance. The personal acceptance costs are borne by the buyer, the material acceptance costs will be charged to them according to our price list or the price list of the supplying plant.
2. If acceptance does not take place, is not on time, or is incomplete without our fault, we are entitled to dispatch the goods without acceptance or to store them at the buyer's expense and risk and to invoice them.
1. We determine the route and means of dispatch as well as the forwarding agent or carrier.
2. Goods reported ready for dispatch in accordance with the contract must be called off immediately, otherwise, we are entitled, after a reminder, to dispatch them at the buyer's expense and risk at our discretion or to store them at our own discretion and invoice them immediately.
3. If, through no fault of ours, transport on the designated route or to the designated location in the designated time becomes impossible or significantly more difficult, we are entitled to deliver via a different route or to a different location; the resulting additional costs shall be borne by the buyer. The buyer will be given the opportunity to comment beforehand.
4. With the handover of the goods to a forwarding agent or carrier, but no later than leaving the warehouse or the supplying plant, the risk, including that of a confiscation of the goods, passes to the buyer in all transactions, including carriage paid and free domicile deliveries. We will only provide insurance at the instruction and expense of the buyer. The duty and costs of unloading are borne by the buyer.
5. The goods are delivered unpackaged and not protected against rust. If customary in the trade, we deliver packaged. We provide packaging, protective, and/or transport aids based on our experience at the buyer's expense. They will be taken back at our warehouse. We do not assume the buyer's costs for return transport or for their own disposal of the packaging.
6. We are entitled to make partial deliveries to a reasonable extent. Industry-standard over- and under-deliveries of the contracted quantity are permissible.
1. In the case of contracts with continuous delivery, we are to be given call-offs and grade classifications for roughly equal monthly quantities; otherwise, we are entitled to make the determinations ourselves at our reasonable discretion.
2. If the individual call-offs exceed the total contract quantity, we are entitled, but not obliged, to deliver the excess quantity. We can invoice the excess quantity at the prices valid at the time of the call-off or delivery.
1. We can refuse the performance incumbent upon us if it becomes apparent after the conclusion of the contract that our claim to consideration is endangered by the contracting party's lack of ability to perform. The right to refuse performance shall lapse if the consideration is effected or security is provided for it.
2. We are entitled to determine a reasonable period within which the contracting party must, at his option, effect the consideration concurrently against performance or provide security. After the unsuccessful expiration of the period, we may withdraw from the contract.
3. Setting a deadline according to paragraph 2 is not necessary if the contracting party has submitted a declaration in lieu of an oath or insolvency proceedings have been opened over his assets or insolvency proceedings have been rejected due to lack of mass.
4. The contracting party is obliged to inform us immediately if he has submitted a declaration in lieu of an oath or if an application has been made to open insolvency proceedings over his assets.
5. Terminations of the contract must be in writing.
6. If the contracting party exercises his right of termination within the framework of a contract for work and services without us being responsible for this, we are entitled to a lump-sum claim amounting to at least 10% of the net order sum, unless the contracting party proves that the claim did not arise or is lower. We reserve the right to assert further claims for damages.
1. As far as quality agreements have been made between the contracting parties, deviations based on the respective relevant technical standards (e.g., DIN standards) are permissible and thus do not constitute defects.
2. Claims for defects do not exist in the case of only an insignificant deviation from the agreed quality, in the case of only an insignificant impairment of usability, in the case of natural wear and tear or damage arising after the transfer of risk as a result of faulty or negligent handling, transport damage, excessive strain, unsuitable operating materials, or arising due to particular external influences which are not assumed under the contract. If the customer or third parties carry out modifications or repair work, there are likewise no claims for defects for these or the resulting consequences.
3. A necessary prerequisite for claims for defects is that the duty to inspect and give notice of defects pursuant to § 377 HGB (German Commercial Code) has been properly fulfilled. The notice of defect must be made in writing.
4. The contracting party may not refuse receipt of deliveries due to insignificant defects.
5. If the contracting party asserts a defect, we have the right to check whether a defect actually exists. In this respect, the contracting party is obliged to make the objected goods or samples thereof available immediately upon request. If the contracting party refuses, all rights due to the material defect lapse.
6. If a defect exists, we are entitled, at our discretion, to supplementary performance in the form of removal of the defect or delivery/manufacture of a new, defect-free item. In the event of failure or refusal of supplementary performance, the contracting party may withdraw from the contract or reduce the purchase price after the unsuccessful expiration of a reasonable grace period. If the defect is not substantial or the goods have already been sold, processed, or reshaped, he is only entitled to a right of reduction.
7. After an agreed acceptance of the goods by the buyer has been carried out, the notification of defects that were detectable during the agreed type of acceptance is excluded. If a defect remained unknown to the contracting party as a result of negligence, he can only assert rights due to the defect if we fraudulently concealed the defect or assumed a guarantee for the quality of the item.
8. The place of performance for supplementary performance is our registered office. In the case of goods sold as declassed material, the contracting party has no rights based on material defects concerning the stated reasons for declassification and such defects with which they usually have to reckon. When selling IIa goods, our liability for material defects is excluded.
9. The warranty period for defects in new items is 12 months and begins with the transfer of risk, but no later than the handover to the transport person. This does not apply insofar as the law imperatively prescribes a longer liability or in cases of intent or fraudulent concealment of the defect.
10. Any assurances by us only constitute guarantees if they have been explicitly designated as such. If this is not the case, they constitute a quality agreement.
11. Transport damage must be reported in writing immediately, involving the forwarding agent commissioned with the delivery.
12. If the contracting party has transported the object of the contract or had it transported, we are not obliged to establish a defect-free condition in the event of transport damage and/or subsequently occurring defects, unless the defect is not based on the transport.
1. Due to violation of contractual and extra-contractual obligations, in particular due to impossibility, default, culpa in contrahendo, and tort, we are liable - also for our senior executives and other vicarious agents - only in cases of intent and gross negligence, limited to the contract-typical damage foreseeable at the time the contract was concluded. For the rest, our liability, including for defects and consequential damages caused by a defect, is excluded.
2. These limitations do not apply to a culpable breach of essential contractual obligations insofar as the achievement of the purpose of the contract is endangered, to culpably caused damages to life, body, and health, and also not if and to the extent that we have assumed a guarantee for the quality of the sold item, as well as in cases of mandatory liability according to the Product Liability Act. The rules on the burden of proof remain unaffected by this.
3. Unless otherwise agreed, contractual claims that arise for the buyer against us out of and in connection with the delivery of the goods shall expire one year after delivery of the goods. This period also applies to such goods which, according to their usual manner of use, have been used for a building and have caused its defectiveness, unless this manner of use was agreed in writing. Unaffected by this is our liability for intentional and grossly negligent breaches of duty, culpably caused damages to life, body, and health, as well as the statute of limitations for rights of recourse according to §§ 478, 479 BGB.
1. The contracting party is not entitled to assign claims against us to third parties without our written consent.
1. The place of jurisdiction is our registered office in 46282 Dorsten, Germany, for all claims arising from or in connection with this contract. However, we are also entitled to sue the contracting party at his registered office. Arbitration agreements require our express written consent to be effective.
2. The place of performance is our registered office in 46282 Dorsten, Germany.
3. German law shall exclusively apply to the legal relations between the contracting parties, excluding private international law and the UN Convention on Contracts for the International Sale of Goods (CISG).
1. Should individual provisions of the above terms and conditions be or become invalid, this shall not affect the validity of the remaining provisions. Instead of the invalid provisions, such regulations shall apply that come closest to the economic purpose of the contract while safeguarding the mutual interests. All our previous terms and conditions of sale and delivery are hereby revoked.
Status: February 14, 2017