Terms and Conditions of Sale and Delivery of cast C.ADOLPH & RST DISTRIBUTION GmbH for transactions with companies, legal entities under public law, or separate estates under public law
I. Scope of Application
The goods and services provided by us are intended solely for business, commercial, and trade customers and for legal entities under public law or separate estates under public law as well as for freelance occupations for carrying on their professional or self-employed work.
We, cast C.ADOLPH & RST DISTRIBUTION GmbH, discharge the orders placed with us solely on the basis of the following terms and conditions. Upon placing an order, the purchaser acknowledges our terms and conditions of sale and delivery as being binding. These terms and conditions also apply to all future transactions with you, our customer.
Our terms and conditions are also determinative if you provide conditions that deviate from ours. Your terms and conditions shall only become applicable if we expressly confirm such deviating conditions to you in writing.
II. Conclusion of Contract
Our offers are non-binding as regards price, quantity, lead time and availability and are subject to our having received correct and timely deliveries, unless express reference is made in our quotation that our offer is binding.
The contract is concluded subsequent to clarification of all technical and commercial conditions by accepting your written order by way of our written confirmation of order. Our acceptance of your order may also be carried out by means of the delivery of the goods ordered by you being performed by us. The declarations concerning the properties of the contractual products set out in the confirmation of order do not constitute any guarantee within the sense of § 276 Section 1 BGB (German Civil Code) unless we have expressly advised you of the same in our written confirmation of order and also specified which success is guaranteed.
Changes as regards the appearance or technical properties of the goods are admissible without any special notification, provided the function of the goods is not affected.
Our specifications for the product, including specifications in any of our suppliers’ catalogues submitted to you by us, shall only be deemed descriptions of product characteristics. Variances in shape and colour remain admissible to the extent customary in this line of business.
If the goods are manufactured and supplied in a version specifically prescribed by you – by drawing, sample or other specific details – you shall accept the responsibility for ensuring that the rights of third parties, in particular patents, registered designs and other protected rights and copyrights, are not infringed by this version. You have the obligation to indemnify us from all and any claims by third parties that may arise from such an infringement.
III. Extent of our Obligation to Perform
Our confirmation of order incorporating the description of the performance to be discharged by us shall exclusively determine the scope of our obligation to perform and the quality details of our products and services.
This shall also apply if the products and services to be provided by us are to be discharged in accordance with your specifications, in particular in accordance with any drawing made by you. Unless particular production specifications are given in the drawing, we shall carry out production in compliance with EN, DIN, in particular DIN EN 10021 in its applicable version at the time, or ISO or the pre-standards in force at the time of commencing production.
Deviations in dimensions, weights, quality and other specifications shall be admissible if they are in accordance with DIN, EN or if this is customary practice. Other variances shall require a separate agreement.
Reference is expressly made to the fact that it is the duty of the customer himself to obtain any official permits or licences, such as e.g. building permits or similar, that may be required if these are necessary for the utilisation of the ordered goods. Obtaining any such official permits or licences is expressly excluded from our obligations. Should the customer wish to commission us in this respect, this shall entail an additional agreement and require additional remuneration.
The data needed for processing the contracts will be electronically stored and backed up by us in our EDP system. This data will be treated by us in compliance with § 33 of the Federal Data Protection Act incorporating the Teleservice Data Protection Act .
Unless otherwise expressly agreed, our invoices shall be payable immediately, net, without deduction, to our company headquarters in Hagen. In the event that the payment deadline elapses, we shall charge default interest at the rate of 8% above the relevant basic interest rate of the European Central Bank as well as a contribution to expenses amounting to EUR 10.00 for each subsequent dunning letter.
We expressly reserve the right to accept or reject bills of exchange and cheques. These will only be accepted in lieu of payment and shall not be regarded as means of payment until they have been encashed by way of discharge. Expenses for discounts and other costs incurred by the means of payment shall be charged to you.
You shall only be entitled to exercise your right of retention or to offset our claims for payment with your counterclaims if these have become legally enforceable, are uncontested or have been acknowledged by us.
In the event that there is any significant deterioration in your financial circumstances following delivery which could jeopardise our claim to payment, we shall be entitled to demand immediate payment, irrelevant of the term of any bills of exchange accepted in lieu of payment. Should you default in payment, indicating that the realisation of a considerable part of our claims is jeopardised, we shall be entitled to forbid the further processing of the delivered goods and to recover the same, for which purpose we shall have the right to enter your premises.
This recovery is only to be regarded as a security measure; it does not constitute any withdrawal from the contract. You shall be entitled to avert the above specified legal consequences by providing security in the amount of our jeopardised payment claim. In the case that you do not provide the above mentioned security within a reasonable term to be specified by us, we shall have the right to withdraw from the contract.
V. Delivery Date and Delivery
The delivery date is specified by us according to the best of our knowledge and without any guarantee. Agreed delivery periods shall begin on the date of our confirmation of order, although not before all details of execution have been clarified.
Delivery periods shall be regarded as observed once the goods to be supplied by us have left our company at the agreed time or have been placed at your disposal by us at the manufacturer’s plant, if you are in default of acceptance. We shall not be in default if the shipment is not effected as a result of a circumstance for which we are not accountable. It is herewith agreed that we shall not be held responsible for occurrences of Force Majeure, strikes and lock-outs, accidents and other causes of partial or complete stoppage of work such as lack of materials, lack of operating current, transport problems, power supply difficulties, breakdowns of any kind, including such occurrences at the works of sub-contractors. In all such cases, we shall be entitled to postpone the shipment to you by the duration of such an obstruction. In all cases, we shall, however, notify you immediately of the beginning and the anticipated end of such obstructions.
In the event of a delay in delivery on our part, a reasonable period of grace of at least 15 work days shall be set us by you in writing together with a warning of rejection. Following the fruitless expiry of such a period of grace, you shall only have the right of withdrawal or to claim compensation for that part of the scope of contract that has not yet been discharged by us. You may, however, not appeal on the grounds of loss of interest.
Should any considerable deterioration in your financial circumstances occur after the contract has been concluded or should such a deterioration in your financial circumstances not come to our knowledge until after conclusion of the contract, we shall have the right to refuse performance or to demand that you eliminate the risk to the purpose of the contract by advance payment or by providing adequate security. In the event that you do not comply with this requirement for security within a reasonable term set by us, we shall be entitled to withdraw from the contract and/or to demand compensation.
Shipments by us are effected from our company headquarters at your expense and risk.
The cost of packaging and transport are not included in the product prices.
Upon receipt of delivery, you shall inspect the shipment for visible damage to the packaging or the transport goods and, upon determining such damage, shall make a note of this on the freight papers upon delivery and shall report the same to us without delay. Any transport damage that is not apparent from the outside, i.e. concealed, is to be reported to us within 24 hours. In the case of more extensive transport damage, you shall immediately arrange with the relevant functions (claims agent) for an ascertainment of facts to be carried out.
Delivery shall always be executed as customary in the trade. We shall have the right to effect partial deliveries. Part deliveries shall be regarded as individual transactions that are separately invoiced and are separately payable.
The determination of the route and means of transport as well as the choice of freight forwarder or carrier shall be left to us unless specifically agreed. Goods notified as being ready for shipment must be collected by you without delay as otherwise we are entitled to ship them or to put them into storage, at our discretion.
The risk shall pass to you upon transfer of the goods to the freight forwarder or carrier, but at the latest upon leaving the plant or warehouse.
VI. Notification of Defect, Warranty and Liability
Under reference to the fact that none of our declarations shall constitute a guarantee within the meaning of § 276 Section 1 BGB (German Civil Code), we shall accept the warranty and liability for our provision of goods and services according to the following agreements which shall be supplementary to the statutory rules and regulations:
Immediately upon their arrival at your premises you shall be obliged to subject the goods supplied by us to a thorough random inspection encompassing completeness and accuracy as well as the existence of the contractually agreed condition; this shall be done even if samples or specimens have previously been sent to you.
The shipment shall be deemed approved if you have not raised a complaint in writing within 10 work days of receipt by you, implying that the supplied goods are in their delivered condition. Any reported defects must be described accurately and in detail.
We shall be given the opportunity to determine any reported defect for ourselves. Rejected goods are to be returned to us immediately at our request for this purpose. We shall bear the cost of return transport, provided the complaint is justified; otherwise the transport costs shall be borne by you. In the event that you do not comply with this duty to return the goods, or if you make any alterations to the relevant products without our consent, you shall not be entitled to any warranty claims on the grounds of this defect. In the event of a justified claim, we shall repair the rejected goods or supply non-defective replacement in subsequent performance, at our discretion. We shall also be entitled to credit you the purchase price of the returned goods in the current invoice.
We shall bear the expense of remedying the defect unless it has been worsened as a result of the goods supplied to you by us having been transferred to a different location as that specified by you as the place of delivery. In the event that we do not fulfil our duty of subsequent performance or do not do this within a reasonable period, you may set us a final deadline within which we have to fulfil our obligations. Upon fruitless expiry of this deadline, you shall have the right to demand a reduction of the price, to withdraw from the contract, or to make the necessary repairs yourself or have this done by a third party, at our expense and risk. In the event that any recourse claims are made against you arising from the resale of the goods supplied to you by us, these shall only exist to the extent that you have not entered into agreement with your customers that go beyond the scope of statutory claims for damages.
The warranty term shall be one year.
In the case that, during the warranty term of one year from delivery, you have any defects that occur remedied by third parties without our consent, your warranty claims shall expire. The same applies if the products are used for purposes for which they are not normally designated.
We shall only be liable for damages, including any possible claims for disbursement of expenses, regardless of the statutory grounds, in the case of:
• our own gross negligence or negligence, likewise in the case of gross negligence on the part of executive employees or the boards of our company,
• culpable injury to the life, limb or health of others,
• defects which we have wilfully concealed or which we have guaranteed in writing as not existing,
• deficiencies in our performance, to the extent that liability for personal injury and property damage is prescribed by product liability law for privately used items.
In the event of any culpable infringement of essential contractual obligations, we shall also be liable in the case of gross negligence by non-executive employees and for minor negligence. In the latter case, our liability shall however be restricted to predictable occurrences of damage typical for such contracts.
All the above described warranty claims and claims for damages and/or expenditure shall come under the statute of limitations one year following the transfer of the contractual objects. This shall however not apply if longer terms are prescribed by law, for instance in the case of a building and for a product that is used for its designated purpose for a building and has caused the deficiency of the same.
VII. Reservation of Ownership
We reserve the unrestricted title to the supplied goods until all claims for payment due to us by you that exist at the time of delivery or occur later from other contractual relationships have been satisfied.
The supplied goods remain our property until the agreed purchase price and all other debts arising from the overall business relationship of any kind whatsoever have been paid up in full, including any possible claims from an open account.
You shall be entitled to resell the supplied goods in the usual course of business at your normal terms and conditions of business as long as you are not in arrears with payments and under the proviso that you agree retention of title with your customer and herewith assign to us the receivables accruing to you from such a resale. We herewith accept this assignment. You shall not be entitled to any further disposals of the collateral goods. The use of the collateral goods supplied by us to discharge contracts for works or contracts for goods and services shall also be regarded as a resale. You shall not be permitted to make any pledges of goods or assignments of securities.
Your claims to payment arising from the resale of the collateral goods are herewith assigned to us and shall serve to secure our claims to the same extent as the goods themselves.
You shall be entitled to collect debts arising from the resale unless we have revoked our authorisation for you to collect due to arrears in payment or the deterioration of your financial circumstances. If so requested by us, you have the duty to advise your customers at once of such an assignment to us – unless we have undertaken this ourselves – and to immediately submit to us the information and documents required for collection.
The goods subject to retention of title are to be adequately insured by you against fire and theft. Claims arising from any insured damage in this respect are herewith assigned to us; and we herewith accept this assignment. When registering the insurance claim arising from such damage, you are at the same time obliged to indicate the aforementioned assignment to the insurer.
You have the duty to notify us immediately of the seizure or any other interventions by third parties concerning our reservation of title.
Should the value of the existing security exceed the total secured claims by more than 20%, we shall be obliged to release security to this extent at our option upon being so requested by you.
We shall be entitled to withdraw from the contract if application is made to open insolvency proceedings against your assets.
VIII. Information Obligations
When registering his data in our online customer list, the customer is obliged to provide truthful, correct information. Should this data change, the customer has the duty to notify us immediately of such changes by altering the details in our online shop.
Should the customer make any false declarations, we shall have the right to cancel any contract that may have been concluded. This cancellation is to be notified by us in writing. The written form shall be deemed complied with even if it is sent by e-mail.
Immediately following the placement of an order by the customer we shall send the customer an e-mail to the address specified by him in which we confirm the receipt of his order. The customer is obliged to advise us at once at the e-mail address specified in the imprint if this e-mail does not reach him immediately after placing his order.
IX. Usage of Data from this Internet Shop by Customers
The duplication or copying of anything from our internet shop, in particular illustrations and information, including excerpts, irrelevant of the technical process used, is only permitted with our express approval.
X. Data Protection Statement
Your personal and company-related data is recorded and used by us solely in compliance with the provisions of the data protection laws of the Federal Republic of Germany. You are advised of the type, scope and purposes of such recording and usage of person- or company-related data in the following:
Once you access our website, your internet browser automatically transmits data to our web server for technical purposes. This data includes the date and time of access, the URL of the referencing website, the accessed file, amount of sent data, browser type and version, operating system and your IP address. This data is stored separately from other data that you enter while using our service. It is not possible for us to allocate this data to any specific person. This data is evaluated for statistical purposes and subsequently deleted.
Inventory Data In the event that a contractual relationship between you and us is established, or its content configured or changed, we record and use your person- and company-related data as required for this purpose.
By order of the relevant authorities, we may, in individual cases, provide information on this data (inventory data) to the extent that this is required for the purpose of criminal prosecution, averting danger, complying with statutory duties of constitution protection agencies or German military counter-intelligence services, or to enforce the protection of intellectual property rights.
We shall record and use your person- and company-related data if this is required in order to facilitate the utilisation of our internet service or for billing purposes. In particular, this (usage data) includes characteristics relating to your identification or details of the beginning and end of usage and the scope of using our services.
By order of the relevant authorities, we may, in individual cases, provide information on this data (usage data) to the extent that this is required for the purpose of criminal prosecution, averting danger, complying with statutory duties of constitution protection agencies or German military counter-intelligence services, or to enforce the protection of intellectual property rights.
XI. Right to Information
As a user of our internet service, you have the right to demand from us information about the personal and company-related data stored by us. At your request, this information can also be provided electronically.
Our prices specified in offers and confirmations of orders are quoted ex works, in Euros, excluding the statutory rate of Value Added Tax and excluding the costs of packaging, shipping and transport insurance. All prices in our confirmation of order – i.e. the contract prices – shall apply for the period specified in the confirmation of order. Any later reductions in the ordered quantities and/or the agreed delivery quantities shall entitle us to appropriate increases in the agreed unit prices and in any agreed share in tooling costs.
Our prices are based on the current customary calculation factors and cost prices. Should these change in the long term for call orders or skeleton agreements, we shall be entitled to adjust the agreed unit prices at our discretion to allow for these changes in costs. In the event that we demand an increase of more than 10% in the contract price, you shall have the right to withdraw from the contract.
Purchase orders with an order value of less than EUR 50.00 plus VAT may be charged with a processing fee of EUR 10.00 for cost reasons.
XIII. Applicable Law, Jurisdiction, Legal Venue
The laws of the Federal Republic of Germany including the United Nations Convention on Contracts for the International Sale of Goods dated 11/04/1980 shall be applicable.
The place of performance for both parties shall be the corporate headquarters of cast C.ADOLPH & RST DISTRIBUTION GmbH. The place of jurisdiction is the District Court Hagen and/or the Regional Court Hagen. We shall however also have the right to take legal action against you at your place of general jurisdiction.
Claims against us arising from this contract or from any other existing or future contracts concluded with you may not be transferred, assigned or pledged, either wholly or in part, to third parties without our express written consent.
Verbal agreements shall only be effective if they have been confirmed by us in writing.
Should any of these provisions be or become invalid or ineffective, this shall not affect the effectiveness of the remaining provisions. In such a case, an agreement shall replace the ineffective or invalid agreement which comes as close as possible to the commercial objective pursued.
All our previous terms and conditions of sale and delivery are herewith repealed.
Hagen, February 2011