Delivery and payment terms
1.1. The following terms - subject to the stipulations of Point 16 - refer exclusively tobusiness transactions with contractors.
1.2. Our terms apply for all contracts, deliveries and other services that we provideto the purchaser.
1.3. General terms and conditions of the purchaser which vary from our terms arehereby rejected; such terms and conditions do not obligate us even if we do notagain expressly reject them. We are only bound by such terms and conditions ifwe declare ourselves in agreement with their application in writing.
1.4. Subsidiary agreements, reservations, additions etc. require our writtenconfirmation in order to be valid. This also applies to such agreements bywhichthe agreed written form requirement is to be lifted.
2. Quotations, contracts:
2.1. Unless specified otherwise, our quotations are made without commitment.
3.1. All prices stated by us are subject to value-added tax at the applicableprevailing rate.
3.2. Unless agreed otherwise, prices will be based on the price list issued by us, andwhich is in effect at the time of the conclusion of the contract.
3.3. Prices include freight charges within the Federal Republic of Germany(mainland), although without unloading and to the loading bay or door of thepurchaser.
3.4. For orders below 1,200.-- total invoice value (without VAT and before metalsurcharge), delivery is chargeable. The same applies in the event that, on theinstructions of the purchaser, part-deliveries are made to different addressesprovided by the purchaser, and these part-deliveries or parts thereof do notexceed the amount of 1,200.--.
4. Metal rates and calculation:
4.1. Raw material rates will be calculated on the basis of the rates published by theNE metalworkers. Unless agreed otherwise, the rates published in the dailypress on the date of receipt of the order will apply for electrolyte copper forconduction purposes (DEL notice) plus purchasing costs incurred,aluminium forconduction purposes and lead in cables to DIN 17640.
4.2. List prices will be adjusted by the product of the NE metal price difference(EURO/kg). The NE metal price difference is obtained from the differencebetween the basic metal price and the DEL rate including purchasing costs.
5. Retention of ownership
5.1. We retain ownership of the goods supplied by us - hereafter referred to as theretained goods - until full settlement of all claims arising from the businessrelationship with the purchaser. The retention of ownership also remains ineffect if individual claims are included in a current invoice.
5.2. The purchaser is entitled to resell the retained goods in the normal course ofbusiness. For the purposes of security, the purchaser hereby relinquishes in ourfavour his claims arising from the sale against his customer, up to the value ofthe retained goods.
As long as the purchaser fulfils his obligations toward us, he remains authorizedto collect such claims, even though they have been relinquished in our favour.In the case of justifiable grounds however, and especially if the purchaserculpably fails to fulfil his contractual obligations toward us, we are entitled tocancel the above authorisation and disclose the relinquishment that has beenmade in our favour.
In such a case, the purchaser is obliged to provide us immediately will allinformation and documentation necessary to make such disclosure.
5.3. A sale in the normal course of business is not considered to have been made ifthe purchaser assigns the retained goods to a third party, transfers them assecurity and/or makes them the object of factoring and/or sale-and-lease-backtransactions.
The same applies in the event that the purchaser delivers the retained goods toa customer whose terms of business exclude the relinquishment of the claimsdue to the purchaser.
In cases such as the above, the purchaser is at all times obliged to obtain ourwritten consent before conducting such business.
5.4. In the event of the further reworking and/or processing of the retained goods,this is carried out at our request and on our behalf as the manufacturer in thesense of ¡ì¡ì 950 ff. BGB (German civil code). In this event, we retain ownershipof the items created by the reworking and/or processing of the retained goods inthe same ratio of the value of the retained goods to the new items created at thetime of reworking and/or processing. If other goods not belonging to thepurchaser are also processed at the same time, we are entitled to jointownership of the new items created in the same ratio of the invoice value of theindividually processed goods to the total finished value.
If the purchaser then resells the new items manufactured by him, the claimsarising to the purchaser are also hereby relinquished in our favour, for thepurposes of security, up to the value of the retained goods.
5.5. If the retained goods are damaged, destroyed, or if claims accrue to thepurchaser on the grounds of reduction in value of the retained goods againstthird parties, and especially against insurance companies, these claims are alsorelinquished in our favour, in accordance with the above and the followingstipulations, as security for our claims.
We must be notified immediately and in writing if such claims arise.
5.6. If the value of the securities given to us - the value being calculated on the basisof the relevant resale value, less value-added tax and any prior claims by thirdparties - consistently exceeds our outstanding claims by more than 50%, we areobliged, at the request of the purchaser, to release any securities no longerrequired at our own discretion.
5.7. If a cheque/foreign exchange transaction is carried out, payment of the claimsdue to us is only considered to have been made on the definitive andunreserved fulfilment of all obligations arising in connection with the abovepayment method, and in the case of a cheque/foreign exchange transactiononly after full processing and conversion of the foreign exchange provided.
6. Payment terms:
6.1. Our invoices are payable 30 days after invoice date, without deduction.
6.2. The purchaser may only deduct settlement discount if we have agreed this withhim in advance and in writing.
A further requirement for claiming settlement discount is that the purchaser isnot in arrears with any of his other payment obligations, and that the invoiceamount due to us is either transferred within the agreed period or we receiverelevant notification of payment within the agreed period.
6.3. In the event of failure to observe the above payment terms, we are entitled tocharge interest at a rate of 8% above the basic interest rate. This does notaffect our right to claim further damages, particularly in the event ofdemonstrably higher interest rates.
6.4. Irrespective of any other payment agreements, all our outstanding claimsbecome due for immediate payment if circumstances occur in the person of thepurchaser which give grounds to assume that the payment agreements madecannot be observed (for example insolvency, application for bankruptcyproceedings etc.). In this event, we are also entitled to make delivery of furthergoods subject to the provision of the appropriate securities and/or advancepayment.
6.5. The claiming of any rights of retention and/or reconciliation of claims against usis excluded, unless such claims are undisputed and/or have been established inlaw.
7. Delivery reservations:
7.1. All delivery commitments on our part, unless specifically agreed otherwise inwriting, are subject to correct and timely delivery of goods to us.
7.2. If delivery cannot be made for reasons which are the responsibility of oursuppliers, both we and the purchaser may withdraw from the contract, if theagreed delivery date has been, or in all probability will be, exceeded by threemonths.
7.3. We reserve the right to make part-deliveries. In this case, no additional costswill be charged to the purchaser.
7.4. We also reserve the right to make the normal, accepted over- orunderdeliveriesof up to 10% of the quantity ordered.
8. Delivery schedules
8.1. Goods will only be supplied to fixed delivery schedules if these have beenconfirmed in advance in writing.
8.2. If we fail to meet agreed delivery schedules and/or times, the purchaser is firstobliged to grant us, in writing, an appropriate supplementary period to makedelivery. This supplementary period should be not less than 4 weeks. If we alsofail to meet this delivery period, the purchaser is entitled to with draw from thecontract.
8.3. In the event of force majeure and/or unforeseeable and extraordinarycircumstances and/or other events beyond our control, even if they occur to oursuppliers, any delivery date agreed by us is extended until the problemsmentioned above are rectified. If this time cannot be forecast, and especially ifsuch problems are expected to last for more than 3 months, both we and thepurchaser are entitled to withdraw from the contract. In this case, claims forcompensation for damages by either party are excluded. We undertake to notifythe purchaser immediately if we become aware of any of the abovecircumstances.
8.4. If the observation of a particular delivery date is subject to our being providedwith certain information and/or plans, approval declarations etc. by thepurchaser, the agreed delivery time begins only from the time when thecomplete written information from the purchaser has been made available to us.
8.5. If delivery is postponed at the request of the purchaser beyond the contractuallyagreed delivery date, we are entitled, beginning 10 working days at the earliestfrom notification that the goods are ready for delivery, to charge the purchaserstorage costs of 0.5% of the invoice amount for every month or part of a month,up to a maximum of 5% of the total invoice amount.
8.6. Return deliveries that have not been confirmed in advance by us, are made atthe sole risk of the purchaser.
9. Call-off orders:
If the purchaser places a call-off order with us, and if no separate writtenagreements are made with respect to the call-off dates, the purchaser is obligedto notify us of the call-off dates in such a way that we have at least 14 workingdays between receipt of the call-off notification and delivery, and the lastdelivery is made 90 days after our order confirmation.
10. Size and weight information:
All information on diameter, weight, technical design, manufacture and extent ofthe goods to be delivered by us are subject to the reservation of variance withinthe normal, permitted tolerances.
We also reserve the right to make technical changes at any time in the interestsof technical improvement. Colour variations and/or variances in the outerproperties of goods delivered by us, which do not however impair the quality ortechnical features, do not constitute grounds for guarantee claims by thepurchaser.
11. Transfer of risk:
11.1.Place of fulfilment for our delivery obligations is the delivery warehouse fromwhich the goods are dispatched to the purchaser, and in the event of deliveryex-works, the works from which the deliveries are made.
11.2.The risk of the accidental damage and/or loss of the goods is transferred to thepurchaser as soon as the goods are handed over to the person carrying out thedelivery and/or have left our premises or the manufacturer¡¯s works for thepurposes of delivery.
11.3. If the goods ordered are made ready by us for delivery, and/or delivery and/orcall-off is delayed for reasons beyond our control, the risk is transferred to thepurchaser on his receipt of notification that the goods are ready for delivery.
11.4.We are entitled, although not obligated, to take out separate insurance againstthe risks associated with transport, on behalf of and on the account of thepurchaser.
12.1. Guarantee claims by the purchaser first require that the goods delivered arechecked immediately to ensure they are in order, that any obvious faults arenotified to us immediately in writing, and that any concealed faults are notified tous as soon as they are detected.
12.2. If the fault is our responsibility, we are entitled, at our own discretion, to eitherrectify the fault or provide a replacement delivery.
12.3. If we are not prepared or not in a position to rectify the fault or provide areplacement delivery, or if such rectification is delayed beyond a reasonabletime for reasons which are our responsibility, or if rectification/replacementproves unsuccessful for any reason, the purchaser is entitled, at his discretion,either to withdraw from the contract or require an appropriate reduction in thepurchase price.
12.4. Unless specified otherwise below, any further claims by the purchaser, onwhatever legal grounds, are excluded. We are consequently not liable fordamages not sustained to the actual goods delivered; we are in particular notliable for loss of profits or other financial damages sustained by the purchaser.
12.5. The above limitation of liability does not apply if the damage is caused bydeliberate or gross negligence. Nor does it apply if the purchaser claimscompensation for damages due to non-fulfilment because of the lack of anassured property.
If we infringe our contractual obligations due to negligence, our liability formaterial and personal damages is limited to the coverage amount of our productliability insurance. The purchaser may inspect this insurance policy at hisrequest.
12.6. The guarantee period is in accordance with legal requirements.
13. Compensation for damages/liability:
13.1. Liability for damages on our part, on whatever legal grounds, is excluded incases of only simple negligence. This restriction does not apply if the damageoccurs in or as a result of the fulfilment of any of our principal contractualobligations.
13.2. The amount of compensation for damages is restricted to instances of damagetypical in such contracts and which might reasonably have been foreseen by us.
Liability for atypical and/or unforeseeable damages, on whatever legal grounds,is excluded.
Our liability, on whatever legal grounds, is further restricted to 30% of the goodsvalue invoiced, provided that the damage was caused by an occurrence whichcan typically result from business of the type in question.
13.3. The stipulations of Points 13.1 and 13.2 do not apply to claims under ¡ì 1.4 ofproduct liability laws. The same applies for initial inability or culpableimpossibility.
14. Cable drums:
14.1. Unless agreed otherwise, all cable drums, whether they belong to us or to thirdparties, are supplied under the following conditions, and where these do notapply, under the conditions of the firm of Kabeltrommel GmbH & Co. KG, as isnormal commercial practice. The conditions applied by the firm ofKabeltrommelGmbH & Co. KG can be inspected on our premises at any time, or will beprovided to the purchaser on request.
14.2. Drums which do not become the property of the purchaser are supplied underthe following conditions:
a) During the first 12 months following delivery, or notification of readiness fordelivery, the drums are left with the purchaser free of charge.
b) From the 13th to the 17th month inclusive, the purchaser will be charged
15% of the deposit value of the drums per month.
c) If the purchaser retains the drums beyond the 17th month, the full depositvalue will be charged, and the drums then become the property of thepurchaser on settlement of the relevant invoice. These charges aresubject to value-added tax at the prevailing rate.
d) The charge to be paid by the purchaser within the period from the 13th tothe 17th month is cancelled from the time that the purchaser requestscollection of the drums in writing, stating the cable drum no. Up to the timeof collection, and at the latest up to 3 months after receipt of the collectionrequest, the purchaser remains obliged to store the cable drums with thesame care as if they were his own property.
e) In the event of insolvency, liquidation, closure of the company etc. ofOrderer, Klaus Faber AG shall be entitled to charge a security for thedeposit value.
14.3. In case of the return of drums not belonging to us or to Kabeltrommel GmbH &
Co. KG, we are liable only for the care that we would apply to our own affairs.
14.4. The return of empty cable drums will be handled by us and at our cost. If thepurchaser returns a cable drum to us without our prior agreement, he acts at hisown risk and cost.
14.5. On collection, the purchaser undertakes to provide the necessary loadingassistance and to pay any such costs incurred. The purchaser is further obligedto insure the cable drums against the normal risks and with all due businesslikecare until the end of the period defined in Point 14.2 d).
14.6. Irrespective of the above conditions, we expressly reserve the right to supplynon-returnable cable drums. If non-returnable cable drums are supplied, thepurchaser will be notified accordingly, and at the latest by the time of delivery.
Unless otherwise agreed, non-returnable cable drums become theproperty ofthe purchaser on delivery.
15.1. This contract is subject exclusively to the law of the Federal Republic of
Germany. In case of international orders, the application of the stipulations ofthe uniform law on the international purchase of movable goods is expresslyexcluded.
15.2. Seat of adjudication is, at our discretion, either Saarbr¨¹cken or the courtresponsible for the purchaser¡¯s head offices, if the purchaser is a businessman,legal person under public law or special asset under public law or has nogeneral seat of adjudication within Germany.
15.3. If any of the above stipulations are or become invalid, this shall not affect thevalidity of the remaining stipulations. In this case, and instead of the invalidstipulations, those legal stipulations shall apply which most closely approximatethe commercial intent of the initial stipulation.
These terms and conditions of business replace all earlier versions.
16. Area of application for consumers:
If the purchaser is not a contractor, the above conditions apply accordingly, withthe exception of the binding clause on prices quoted by us. In the latter case,we will be bound by the prices quoted (before the metal surcharge) for a periodof 4 months. After the end of this period, our relevant list prices applyaccordingly, unless scheduled delivery within the 4-month period could not bemade for reasons that are our responsibility. The interest rate as defined in Point 6.3 and late payment interest for consumers in general is 5% above thebasic interest rate.