Terms & Conditions
§ 1 General terms - Scope1. Our terms and conditions apply exclusively; we do not recognize contrary terms from the customer, or terms that deviate from our terms and conditions unless we explicitly agreed in writing to their application. Our delivery conditions shall also apply when, aware of contrary delivery conditions or delivery conditions of the customer at variance with ours, we carry out the delivery to the customer without reservation.
2. Our conditions of sales apply only to contractors as referred to in article no. 14, paragraph 310. 1 BGB.
3. Our conditions of sales also apply to all future dealings with the customers.
§ 2 Offers - Conclusion of contract – Offer documents1. Our offers are non-binding and subject to change.
2. After the purchase by the customer, the contract comes into being through our written order confirmation which is legally valid even though it is computer-generated and without signature and name, or comes into being through our delivery.
3. Statements made prior to placement of order within the framework of order processing (for example special services, e.g. on the basis of mounting instructions, sketches, samples of cables and fittings), in particular relating to performance, consumption and other detail data are only deemed binding if confirmed as such in our confirmation of order or subsequently in writing. Information in brochures and advertisements shall not apply as an agreement of features and do in particular not lead to complementing or changing descriptions of the delivery items.
4. We reserve ownership and copyright to all illustrations, diagrams, data sheets, figures and other documents. This also applies to written documents which are considered as confidential. Customers need to have our explicit written consent before disclosing them to third parties.
§ 3 Pricing and delivery terms1. Unless otherwise mentioned in the order confirmation and the following provisions, our prices are "ex-works" excluding packing, shipping, freight and postage costs and customs duty; these will be added separately in the invoice.
2. The right to proper and timely delivery remains reserved. We will inform the customer immediately in the event of non-availability of goods to be delivered and in case of cancellation, promptly refund any payment received.
3. VAT is not included in our price; it will be shown separately in the invoice at the prevailing rates on the day of billing.
4. Prices for copper cables comprise a copper basis amounting to EUR 150 for 100 kg copper, unless different values are cited with the quoted price. The calculation basis for the selling price is the DEL-stock exchange listing for copper on the day preceding the order-receipt date plus 2% for metal supply costs. Selling price increases or decreases according to the difference between copper basis and DEL-quote. If other metals (e.g. aluminium, lead) the settlement of accounts is carried out analogous to the handling of copper prices. Baseline is the merits indicated in the tender. Metal- and raw material prices, surcharges and deductions are always strictly net prices
5. No drum rent is charged if disposable drums are used for shipping. Delivery will be made in exchange for boxes and EURO-pallets. Returnable drums are - unless marked as disposable drums - credited to 2/3 of the calculated value on condition of re-usability (undamaged) with freight free return shipping. For any special shipping on the customer's request the surcharges shall be borne by the customer. There is no claim to the reimbursement of the freight costs on collection ex works.
6. The minimum net order amount is EUR 500. For orders having a lower net amount, a processing fee of EUR 80 will be charged. For custom lengths which are different from the production lengths and standard lengths of 50m, 100m rings or 500m and 1000m drums, a processing fee of 15 EUR will be charged per section.
7. If any unforeseeable increases in the prices of materials, wage costs, taxes or other levies occur between the conclusion of a contract and delivery being made, we shall have the right to adjust the price in accordance with such factors unless delivery is to be made within four months following conclusion of the contract. If requested to do so, we will furnish relevant proof to the customer. If the customer implements changes following conclusion of contract, we shall be entitled to adjust the prices to take into account the additional costs incurred as a result of the change.
8. The goods may exceed or be short of the agreed delivery amount by 10%. Delivery may be in part lengths. For custom made items we reserve the right to a range of up to 15%. Excess quantities must be accepted and paid for by the customer. In the case of short deliveries, no claims can be asserted. Meter guides special products are produced with manufacturing length.
9. Partial deliveries are allowed.
10. For calculation, the quantities and weights which we have dispatched from the warehouse or have packed for delivery will prevail.
11. Framework contracts have a maximum run time of 12 month after date of availability. Other run times must be set out in writing.
12. In the case of intra-Community transfers of goods that are exempted from VAT, the customer is obliged to indicate his VAT no. number in writing within 10 days of conclusion of contract as well as to provide us with the other information necessary for checking the exemption from tax and to provide us with vouchers necessary. Should the customer fail to comply with these obligations in good time, we shall not treat the deliveries as exempt from tax. We shall then be entitled to invoice and demand the respectively applicable turnover tax in addition. If we have incorrectly accepted a delivery as exempt from tax as a result of incorrect information of the customer, the customer shall indemnify us against the tax debt and shall bear all additional expenses.
§ 4 Terms of payment1. Invoicing takes place during shipping. In case the dispatch of goods ready to ship cannot be made due to reasons from the customer, an invoice will nevertheless be issued and will be payable.
2. Unless otherwise provided in the confirmation of order, the net sales price (without deduction) will be due for payment within 30 days after date of invoice. The statutory regulations concerning the consequences of default of payment shall apply. For payments made within 10 days, a discount of 2% will be granted on the value of goods, unless we have agreed something else with the customer in writing.
3. In accordance with the legal regulations in § 267 German Civil Code payments shall always be used to pay off the oldest existing debt, including related interest and costs, unless the customer should have stated another, explicit provision. A payment which is not sufficient to redeem the whole debt will first be set off against the costs, then against the interest and finally against the main service.
4. Set off rights can be only granted to the buyer, if his counterclaims have been stated legally binding, undisputed or recognized by our company. In addition, the customer may exercise the right to withhold payment only in the case of counterclaims in connection with the same transaction.
5. Drafts are accepted by us only through explicit prior consent. The acceptance of drafts or cheques is always only if they are bankable.
§ 5 Delivery time1. The specified delivery time is non-binding unless we have explicitly agreed with the customer to comply with the mentioned delivery time as an absolute fixed-date transaction. Compliance with the delivery time assumes that the customer fully clarifies all technical requirements. Compliance with our delivery obligation further requires the timely and proper fulfilment of the customer's obligations. We reserve the right to raise objection against non-fulfilment of the contract.
2. In case of non-fulfilment of deadline due to force majeure such as mobilization, war, riot or other similar events which are not in our responsibility like strike or lockout, the agreed time will be prolonged adequately, at least by the delay caused by these events.
3. If the customer delays acceptance or otherwise culpably breaches duties of cooperation, we will be entitled to demand that the loss we incur to this extent including any additional expenses be refunded. We reserve the right to make further claims.
4. As long as the conditions from paragraph 3 exist, the risk of accidental destruction or of a coincidental deterioration of the purchased item is transferred to the customer at the time of its acceptance or debtor's delay.
5. We shall be liable in terms of the statutory provisions in the case that the contract on which the transaction is based is a firm deal as defined in Art. 286 para 2 no.4 BGB or Art. 376 HGB. We are also liable in accordance with the statutory provisions to the extent that, in consequence of a delay in delivery caused by us, the customer is entitled to enforce the claim that his interest in the further fulfilment of the agreement no longer exists.
6. Furthermore, we shall be liable in accordance with statutory provisions should the failure to deliver be founded on a wilful or grossly negligent breach of contract for which we are responsible; negligence on the part of our representatives or vicarious agents is to be attributed to us. Unless the delay is not due to our intentional default of the contract, our liability for indemnity shall be limited to predicable, typically occurring damages.
7. We shall bear legal liability under statutory provisions if the delay in delivery for which we are responsible has been caused by the culpable violation of a major contractual obligation, but in any such case our liability for indemnity shall be limited to predicable, typically occurring damages.
8. Moreover, in the event of a delay in delivery, we shall be liable for every full week of delay with a flat-rate compensation for delay amounting to 3% of the delivery value, up to a maximum of 15% of the delivery value. Further claims by the customer are excluded, even after the expiry of any deadline set by the customer. The right of the customer to withdraw from the contract remains untouched. The above provisions do not make any changes in the burden of proof to the disadvantage of the customer.
§ 6 Transfer of Risk - Packaging Costs1. Unless otherwise stated in the order confirmation, the delivery is agreed on “ex-works“. The risk of accidental loss and accidental damage of the goods passes to the customer involved in business as soon as it is stored in our shipping or transfer area. This passes to the customer even if the delivery of goods by us has been agreed through mail order purchase or carriage paid to (CPT) deliveries.
2. Special agreements shall apply for return of packaging.
3. If the customer wishes, we will cover the delivery by a transit insurance; the costs incurred in this regard shall be borne by the customer.
§ 7 Warranty1. The customer shall be entitled to warranty rights if he has fulfilled his obligations to inspect the goods and notify defects in due time according to the context of § 377 HGB.
2. Insofar as the purchased item is defective, we at our discretion will be entitled to make subsequent performance in the form of remedying the defect or delivering a new defect-free item. Any expenses incurred in connection with the subsequent performance shall be borne by us, as far as they are not increased by the fact that the respective goods or services being shipped to a place other than the customer’s establishment, unless such transfer is required for such object's intended use. This does not affect application of § 478 paragraph 1 German Civil Code (Contractor's right of recourse). Notwithstanding the continuing demands of the customer, we must examine the extra expenditure in as far as this is requested in order to eliminate the defects.
3. If the subsequent performance is unsuccessful, the customer shall be entitled to demand rescission or a price reduction at his option.
4. Provided that the customer asserts compensation claims for damages based upon intent or gross negligence committed by our representatives or assistants as well as in cases of physical and health damages caused by carelessness, we shall be liable in accordance with the statutory legislation. Our liability in cases of gross negligence is also limited to foreseeable damage typical of the contract concerned if none of the exceptional cases listed in sentence 1 or 2 in this paragraph applies. Apart from this, we will only be liable pursuant to the Product Liability Act (Produkthaftungsgesetz) for the culpable breach of essential contractual duties, or if we fraudulently conceal the defect or have given a warranty for the quality of the subject matter of the agreement. Claims for damages for the violation of material contractual obligations are limited to the foreseeable damage typical to the contract, unless one of the exceptional cases according to sentence 1 or 2 of this paragraph applies at the same time.
5. The rulings in section 1 above cover damages together with performance and damages instead of performance, on any legal grounds whatsoever, especially damages for defects, breaching of obligations under the contract or an unlawful act. They also apply to a claim to reimbursement of futile costs. The liability for delay is validated by § 5 of these conditions.
6. The above provisions do not lead to any change in the burden of proof to the disadvantage of the customer.
7. In all other cases, any liability is excluded.
8. Insofar as our compensatory damages liability is excluded or limited, such exclusion or limitation will also apply to personal compensatory damages liability of our employees, representatives and assistants.
9. The limitation period for defect claims is 12 months beginning with the emergence of the claim or from the delivery. The above provision shall not apply in so far as the law mandatorily prescribes longer periods according to § 438, section 1 no. 2 German Civil Code (Buildings and items for buildings), § 479, section 1 German Civil Code (Right of recourse).
Such restriction is however not applicable to damage compensation based on a deliberate or grossly negligent breach of our duty and in case of physical injury.§ 8 Retention of title1. The delivery items remain our property until all obligations of the customer towards us arising from the business relationship are fulfilled.
2. If we agree on a payment based on cheque/draft with the customer, the retention extends until the encashment of bills accepted by us from the customer and does not expire by issuing the cheque obtained. In case of the customer's conduct being contrary to the contract, particularly in case of delay in payment, we are entitled to take back the delivered goods. The recall of items delivered by us is to be seen as a cancellation of the contract. After retrieving the goods, we are entitled to sell them and the amount thus realized is to be deducted from the obligations of the customer - minus any appropriate administrative costs.
3. The customer shall agree to treat the purchased item with care; particularly, he shall insure the item against fire and water damage and theft at his own expense with the insured sum being adequate to cover the replacement value. If maintenance and inspection work is necessary, the customer must conduct such work in due time at his own cost.
4. For the duration of the retention of title, the customer may not pledge the retained goods or use them as security. In the event of any distraint, attachment or other disposition or intervention by third parties the customer must promptly inform us in writing, so that we can take action according to § 771 ZPO. Regardless of this, the customer is obliged to advise the third party in advance about the existing rights related to the goods. If the third party is unable to reimburse us the judicial or extrajudicial costs of a lawsuit according to § 771 ZPO, the customer shall be liable for the loss incurred by us.
5. As long as the customer does not behave contrary to the contract, he is entitled to resell the goods in the normal course of business. The entrepreneurial customer shall already cede all claims against third parties to us with all subsidiary rights, particularly claims to the purchase price and compensation at the level of the end invoiced sum agreed with us (including turnover tax), that will arise for it from the further disposal, without or after connection, mixing or processing, or the use of the services rendered for the fulfilment of a contract for service or to supply service, etc.; we hereby accept this assignment. The customer shall be entitled to collect claims against third parties that originate from the services rendered until a revocation by us. This also applies to factoring, which is neither permitted to the customer on account of a collection authority. We also do not agree to the delegation of claims which have been assigned to us within the scope of a factoring agreement. Our authority to collect the receivables ourselves remains unaffected therefrom. However, we agree not to recover debts ourselves as long as the customer complies with his payment obligations from the amounts received, does not default, and does not suffer any material deterioration of his financial situation and in particular applications for the institution of bankruptcy, composition or insolvency proceedings have not been submitted and the customer does not cease payment. If this is the case, we may demand that the customer informs us of the assigned accounts receivable and the debtors, that he gives us all the information and relevant documents necessary to assert our rights and that he informs the debtors (third parties) of the assignment.
6. Processing or transformation of the object of the contract by the customer is always carried out for us. No claim against us arises from the processing or transformation of the goods. If goods are inseparably combined with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the objective value (total invoice amount including VAT) of our goods to the value of the other combined items at the time of combining. If mixing is carried out in such a way that the object of the contractor can be regarded as the main object, it is agreed that the contractor shall assign co-ownership to us. The customer shall retain the sole ownership or co-ownership thus arising on our behalf. The same rules shall apply for the products created by processing as for the goods delivered under reservation of the right of ownership.
7. If goods are inseparably combined with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the objective value (total invoice amount including VAT) of our goods to the value of the other combined items at the time of combining. If mixing is carried out in such a way that the object of the contractor can be regarded as the main object, it is agreed that the contractor shall assign co-ownership to us. The customer shall retain the sole ownership or co-ownership thus arising on our behalf.
8. To secure our claims against him, the customer assigns to us also such claims which arise against third parties due to the combination of goods with properties.
9. In the event of contracts relating to services rendered, with which our retention of title lapses on their fulfilment, the customer hereby assigns his claim to remuneration to the extent of the invoiced value of the reserved goods which have been processed; we hereby accept this assignment. In the case of down payments on remuneration claims which have been partially assigned to us, the customer is obliged to offset the down payments initially against the part of the claim which has not been assigned to us. Between ourselves and the customer, down payments collected initially by the customer shall always be deemed to constitute repayment of the partial amount not assigned to us.
10. Once the realisable value of all the security rights held by us exceeds the amount of all secured claims by more than 10%, we will release an appropriate share of the security rights upon the customer‘s request. It is assumed that the conditions mentioned in the previous sentence are met if the estimated value of our securities reaches or exceeds 150 percent of the value of the secured claims. We shall have the right to choose between various security interests for release.
11. In case of a breach of duties on the part of the customer, particularly regarding late payments, we are permitted to request the forfeiture/handing-over of the delivery goods or new goods respectively, and/or if necessary against a deadline, in order to withdraw from the contract; the customer is obliged to surrender. The request for return of a delivery item, if not conforming to the prerequisites of paragraph 2 of this section, does not imply withdrawal from the contract from our part, unless such withdrawal is declared explicitly.
12. Upon request, the customer shall provide us with all the information and documents required by us to protect our rights. The customer must communicate the name and address of the debtor against whom the assigned claims exist and inform and notify about the assignment. Upon request, the customer has to provide us with a deed of assignment.
§ 9 Onward delivery of goods to abroad1. In case of resale by a domestic buyer to a foreign country, the customer needs to investigate whether the exported goods conform to the restrictions under the, “EG Dual-UseVO (Verordnung (EG) Nr. 428/2009)” (Foreign Trade and Industry Law of the German Federal Republic), the US Trade Law or other statutory regulations.
2. We are not liable for any warranty and/or liability claim if the goods do not meet legal demands or if the goods are subject to restrictions abroad.
§ 10 Jurisdiction - Area1. If the customer is a contractor, for all disputes resulting from the contractual relationship, the place of our registered office is the jurisdiction; however, we are also authorised to sue the customers at their place of residence.
2. The law of the Federal Republic of Germany shall apply with the exclusion of the UN Convention for the International Sale of Goods (CISG). Also excluded is the incorporation of terms of foreign law in German private international law which would result in the application of provisions in foreign law or foreign legal venues.
3. Provided that nothing else is stated in the order confirmation, our place of business is the place of fulfilment.