General Terms and Conditions of Sale
Conclusion: Conclusions and agreements - in particular insofar as they amend these Terms and Conditions of Sale - shall only become binding for us upon our written confirmation. Excess or short deliveries shall be deemed to have been agreed within the usual scope. The customer's terms and conditions of purchase are hereby expressly rejected. We shall not be bound by them even if we do not object to them again when the contract is concluded. These terms and conditions of sale shall be deemed to have been accepted at the latest upon receipt of the goods.
Pricing: All prices are ex works or, in the case of delivery from the warehouse, ex warehouse, excluding the cost of any packaging. Prices published at the time of delivery or market prices, if not published, shall be deemed to have been agreed. The number of pieces or the weight determined by us shall be decisive for the calculation. Packaging will be invoiced separately and credited with 2/3 of the invoiced value if returned carriage paid and in perfect condition.
Delivery period: The delivery period shall commence on the date of our order confirmation, but not before full clarification of all details of the execution; in the absence of any special agreement, the delivery periods shall be deemed to be approximate and non-binding. In the event of delay, the customer shall be entitled to withdraw from the contract after setting a reasonable period of grace, apart from the cases regulated in section 4) within the framework of § 326 of the German Civil Code (BGB). The customer may only claim damages for non-performance in the event of intent or gross negligence. The customer must immediately call off goods that have been reported ready for shipment. If no call is made or if there is no possibility of shipment, we shall be entitled to store the goods at the customer's expense and risk at our discretion and to invoice them as delivered ex works. The customer may not reject partial deliveries. In the case of orders with continuous delivery, call-offs and grade allocations are to be given to us. If call-offs or grading are not made in good time, we shall be entitled, after setting a grace period to no avail, to make our own grading and to deliver the goods or to withdraw from the part of the contract still in arrears and to claim damages.
Delivery hindrance: Operational disturbances and events of force majeure entitle us to extend the agreed delivery period for the duration of the operational hindrance and a reasonable start-up time and, if the closer circumstances require it, to cancel the delivery obligations in whole or in part. Force majeure shall be deemed to be equivalent to circumstances which make delivery considerably more difficult or impossible for us.
Transfer of risk: The risk - including the risk of seizure - shall pass to the customer in all cases, e.g. also in the case of fob transactions, when the goods are handed over to the forwarding agent or carrier, but no later than when they leave the factory or warehouse.
Defects/delivery of goods not in conformity with the contract: Notices of defects and complaints due to delivery of goods not in conformity with the contract must be made by the customer in writing within 14 days after receipt of the goods at the place of destination. Defects or complaints due to delivery of goods not in conformity with the contract which are not discovered within this period even with the most careful inspection are to be reported or asserted immediately after discovery, with immediate cessation of any processing, but no later than 3 months after receipt of the goods. We shall take back defective goods or goods not delivered in accordance with the contract and replace them free of charge with faultless goods, insofar as the delivered goods are not usable for the customer. In the case of defective goods, we may instead replace the reduced value. The Customer may only claim damages, irrespective of the legal basis, if the damage recognized to him is due to intent or gross negligence on the part of Hammerwerk Erft G. Diederichs GmbH & Co. KG. If the customer does not provide us with samples of the rejected material immediately upon request, all claims shall lapse.
Warranty: The warranty period is generally one year after the transfer of risk, unless otherwise agreed in writing by Hammerwerk Erft G. Diederichs GmbH & Co. KG has confirmed otherwise in writing.
Acceptance and inspection: If an inspection or acceptance has been agreed for the delivered products, it must take place at the supplying plant. The goods shall be deemed to have been delivered in accordance with the contract upon dispatch if the customer has accepted the goods or fails to carry out the agreed acceptance or fails to do so in good time.
Unauthorized onward delivery: The customer shall pay a contractual penalty of 30 % of the purchase price if the goods do not reach the agreed country of destination in unchanged condition without our approval and do not remain there through his fault. In the case of products subject to the Coal and Steel Community Treaty, the territory of the Common Market shall be deemed to be a country of destination within the meaning of this condition. In the case of export deliveries, we shall not be liable for any infringement of third party industrial property rights by our products. The customer is obliged to compensate for the damage caused to us by the export of material which was not expressly supplied by us for export.
Payment: Payment must be made within 30 days of the date of the invoice without deduction, excluding set-off and retention. Arrangements deviating from this must be agreed in writing. We only accept bills of exchange on account of payment on the basis of an express agreement. Credit notes for bills of exchange and cheques shall be made subject to receipt and with value date of the day on which we can dispose of the equivalent value. In case of overdue payment, interest will be charged in accordance with § 352 of the German Commercial Code (HGB) at a rate of 5% above the base interest rate applicable at the time. If the customer is entitled to claims against us, our claims shall become due in this respect when our liability becomes due. All our claims, including those for which we have accepted bills of exchange, shall become due immediately if the terms of payment are not complied with or if, after the respective conclusion of the contract, we become aware of circumstances which, in our opinion, are likely to reduce the creditworthiness of the customer. Furthermore, in such a case we shall be entitled to make outstanding deliveries only against advance payment or provision of security and to withdraw from the contract after a reasonable period of grace or to claim damages for non-performance. We may also prohibit the resale of the goods delivered under retention of title and demand their return or the transfer of indirect possession at the customer's expense.
Retention of title: Our deliveries shall remain our property until payment of all our claims, irrespective of the legal grounds, even if the purchase price for specially designated claims has been paid. In the case of a current account, the reserved property shall serve as security for our balance claim. Treatment and processing shall be carried out for us to the exclusion of the acquisition of ownership in accordance with § 950 BGB (German Civil Code) without obligating us. The processed goods shall serve as our security in the amount of the invoice value of the reserved goods. In the event of processing with other goods not belonging to us by the customer, we shall be entitled to co-ownership of the new item in the ratio of the value of the reserved goods to the other processed goods at the time of processing. Otherwise, the same shall apply to the new item resulting from the processing as to the goods subject to retention of title. It shall be deemed to be reserved goods within the meaning of these terms and conditions. The customer's claims arising from the resale or sale of the goods subject to retention of title are hereby assigned to us, irrespective of whether the goods subject to retention of title are resold or resold without or after processing and irrespective of whether they are resold or resold to one or more customers. The assigned claim shall serve as security in the amount of the value of the reserved goods sold or resold in each case. If the reserved goods are sold or resold by the customer together with other goods not belonging to us without or after processing, the assignment of the claim shall only apply to the amount of the value of the reserved goods. The customer may sell or dispose of our property only in the ordinary course of business and as long as he is not in default. The customer shall only be entitled and authorized to resell or dispose of the reserved goods on the condition that the claim from the resale or disposal is transferred to us in accordance with paragraphs 3 and 4. He shall not be entitled to dispose of the reserved goods in any other way. At our request, he shall be obliged to inform his customer of the assignment for the purpose of payment to us. If the value of the security existing for us exceeds our claims by more than 20% in total, we shall be obliged to release securities of our choice at the customer's request. The customer must notify us immediately of any seizure or other impairment by third parties.
Place of performance and jurisdiction: The place of performance and jurisdiction for both parties to the contract is our place of establishment, including for actions in bill of exchange and check litigation. We are also entitled to sue the customer at any other justified place of jurisdiction.
Applicable Law: In any case, the law applicable at the place of performance pursuant to Section 11 shall apply to the exclusion of any other law.
Special Conditions: In the case of products of the Common Market of the Coal and Steel Community, pursuant to High Authority Decisions No. 30/53 and No. 31/53, our customers are obliged to comply with the provisions of Articles 2 to 6 of Decision No. 30/53 and with the provisions of Decision No. 31/53 with regard to their own price lists and conditions of sale for resale in an unaltered condition, except for sales from stock.
The legal invalidity of any of the above conditions does not invalidate the remaining conditions of these general conditions of sale.