|Terms of trade
- These terms of delivery apply exclusively for all offers and sales, even if the customer should exclude our terms and conditions in his own terms of purchasing without our express rejection thereof upon contract conclusion. P. Druseidt Elektrotechnische Spezialfabrik GmbH & Co. KG hereby rejects any terms of purchasing asserted by customers. Non-adherence with these terms of delivery shall only be valid with our express written consent.
II Offers and contract conclusion
- Barring other agreements/provisions to the contrary, all offers are subject to confirmation and are non-binding.
- Documents through which our offers are made (catalogs/images/drawings/etc.) are produced with care, but are non-binding unless explicitly designated as binding within the respective offer. We reserve the right to make corrections and revisions.
- Orders only count as accepted upon our providing written confirmation thereof, or having initiated order filling.
- Order content is as per our written confirmation, or invoice constituting order confirmation in the event of immediate delivery.
- Arrangements with and orders placed with our field representatives and salespeople require our written confirmation to be valid, without exception.
- Verbal agreements and after-the-fact contract revisions shall only be binding given our written confirmation thereof. The same applies concerning guaranteed characteristics of items offered for sale.
- We retain ownership and authorship rights to documents produced by us, including cost estimates, solution proposals and drafts. Third parties may not be allowed access to such documents without our express permission.
- Drafts, samples and other documents produced by us must be returned immediately upon request if the order in question is not placed.
III Support and descriptions/images in catalogs and other printed documents
- Images, drafts and descriptions appearing in our catalogs and other printed documents are produced with care. They represent approximations of circumstances or intentions at the time of printing. We reserve the right however to implement technical revisions and changes with regard to dimension, form and color. This applies in particular with respect to changes precipitated by technological advances that are reasonable for the buyer to accept in view of our own interests.
- Our technical support is provided on a best-efforts basis. All specifications and information provided concerning the appropriateness or use of our products are non-binding however, and do not release the buyer from this obligation to perform his own inspections, calculations and testing. The buyer shall be responsible for compliance with laws and regulations when using our products.
IV Custom-made products
- With orders for custom-made products, all specifications concerning production, dimensions, function etc. require written confirmation, without exception.
- For deliveries based on samples, drawings or the customer’s specifications, said party shall be liable for any potential infringement of third-party rights or violation of applicable laws, releasing and holding us harmless from any third-party claims.
- We shall be only liable for the loss or damage of samples, tools, drawings and other documents provided by the customer in cases of willful intent or gross negligence. In such case, our liability or remedial obligation shall be limited to the remediation of direct damage, i.e. replacement/repair of the damaged item itself.
- Tools, drawings or samples provided by us to a contract partner shall remain our property even after the charging and remittance of fees for the use thereof.
- For custom-made products we retain the right to deliver up to 10% more or less than the ordered volume for production reasons.
V Right to withdraw
- We retain the right to withdraw from the contract due to technical difficulties hindering the fulfillment thereof of an unresolvable nature, or the resolution of which would require efforts/expense out of proportion with the value of the product/service to be provided by us, and in the event we should become aware of circumstances calling into question the customer’s creditworthiness.
VI Pricing and payment terms
- All items made of non-ferrous metals are based on the metal prices appearing in our offers and price lists. An alloying surcharge applies to all stainless steel products. Prices are calculated based on metal prices applicable on the order receipt date plus surcharges.
- If we are handling setup or assembly/installation and no agreements to the contrary are in place, the customer shall bear all necessary expenses accruing in connection therewith such as travel, tool transport, personal luggage and accommodation allowance, in addition to the contractual payment amount.
- Our minimum order size is 50 Euros. Lower orders amounts will be increased accordingly or charged with 50 euro.
- Barring other agreement provisions to the contrary, domestic order pricing is always ex works exclusive of shipping, packaging, insurance and VAT. International orders are ex works exclusive of shipping and packaging, and duty unpaid if picked up from our factory.
- A separate charge applies for packaging materials, which may be returned to us for disposal in accordance with applicable regulations within an acceptable period of time and at no additional expense to us. Refunds are paid on deposit cable drums returned at no expense to us in the amount of 2/3 of the deposit amount charged.
- Prices listed in our catalogs and pricing lists represent nonbinding price recommendations. We reserve the right in all cases to adjust prices due to exchange-rate movements and other increased costs including materials, wages, energy etc..
- Payment due for domestic orders: within 10 days of invoice date with 2% discount or 30 days of invoice date in full. For international orders: as agreed, i.e. cash on delivery, cash against documents or letter of credit for the full amount in euros. Only advance payment or cash on delivery are accepted for first orders, or from customers for whom we have no credit information.
- All payments are to be remitted to the supplier’s specified payment processing desk without any expense deductions.
- Counterclaims contested by us or not yet legally enforced to do not entitle the buyer to withhold payment or offset amounts.
- We retain rights as per § 321 BGB (Civil Code--'no-confidence refusal') should it become evident after conclusion of a contract that the buyer may be unable to meet payment obligations. In such case we furthermore retain the right to demand immediate payment of all unexpired claims outstanding within the scope of the business relationship with the buyer, and to revoke the collection authorization per item XIV/4. We are additionally entitled in the event of late payment to demand the return of goods after an appropriate period, and to forbid the further sale or processing of goods delivered. Reclaiming does not constitute withdrawal from the contract. The buyer may avoid any such legal consequences by remitting payment or providing collateral in the amount of the outstanding claim. Bankruptcy regulation remain unaffected by the above provisions. The option of offsetting amounts is explicitly agreed given a two-way business relationship.
- Interest shall be charged on amounts in arrears at the rate payable by us on our unsecured credit lines.
VII Shipping/transfer of risks
- Barring other provisions to the contrary, all delivery shall be made in accordance with our best judgment. Goods are carefully inspected and packed. We shall not be responsible for damage or breakage during transport. The customer must file any transport damage claims directly with the logistics firm, observing the applicable deadlines. The customer shall be responsible for obtaining transport and other insurance.
- Risks are transferred to the customer, even with carriage paid delivery, as outlined below:
for deliveries without setup or assembly/installation: upon delivery to loading dock or upon pickup.
for deliveries involving setup or assembly/installation: on the date of acceptance at customer facilities, or following trouble-free trial operation as agreed.
- Risks are transferred to the customer if shipping, delivery, and setup or assembly/installation, acceptance at customer facilities or trial operation is delayed for reasons that are the fault of the customer, or if exceptions should be delayed for any other reason.
VIII Delivery periods and deadlines
- Delivery periods specified in our offers and terms and conditions are set in view of current conditions, but are only approximations. Delivery periods apply starting from the point at which goods leave the factory. An existing delivery period is interrupted upon the customer requesting a change in the order prior to delivery. The period in question is restarted as of the point at which we provide written notification of the revised order being filled. The period in question is extended by the amount of time necessary to accommodate the requested order change.
- Adherence with delivery deadlines requires as a prerequisite the customer’s having provided all necessary documentation, permissions and approvals, particularly concerning plans, and the customer’s observance of payment terms and other contractual obligations. Delivery periods/deadlines shall be adjusted accordingly when these prerequisites have not been met; this does not apply for delays the fault of the supplier.
- Delivery periods/deadlines shall be adjusted accordingly for incidents of force majeure, war, unrest, strikes, lockouts, equipment failures, materials shortages and other events beyond our control. These specified events release us from delivery obligations for as long as delivery should be thereby prevented without entitling the customer to withdrawal. The customer shall not enjoy any claims on the basis of late delivery due to the reasons specified.
- Our obligations shall be deemed unfulfilled upon the goods in question being ready for shipment at our factory in accordance with contract, or when said goods leave our factory in accordance with contract. Delivery deadlines shall be deemed complied with upon notification that goods are ready for shipment if delivery is delayed for reasons the fault of the customer. Partial deliveries are permitted.
- In the event of late delivery, the customer may demand damages equal to 0.5% of the amount payable for the portion of the delivery unable to be productively utilized due to delay, up to a maximum 5% thereof, for every full week of delay – provided said party can credibly establish that damages were incurred.
- Claims on the part of the customer for damages due to delivery delays or nondelivery beyond the limits outlined under no. 5, are excluded for cases of late delivery, even after expiration of a deadline imposed upon the supplier. This does not apply in the event of compulsory liability for cases of willful intent, gross negligence or loss of life or bodily injury/harm. The customer may only withdraw from the contract under applicable law on the basis of delivery delays the fault of the supplier. The above provisions do not alter the burden of proof to the disadvantage of the customer.
- The customer agrees to notify the supplier upon request within an appropriate period of time whether the former opts to withdraw from the contract due to delayed delivery, or continues to demand delivery.
- If the customer requests shipment or delivery to be delayed by more than one month from the notification date of readiness for shipment, said party may be charged a warehousing fee equal to 0.5% of the invoiced value of ordered goods up to a maximum 5% for each month begun. The parties to the contract retain the right to adjust warehousing costs documented as actually higher or lower.
- The customers may not refuse to accept deliveries on the basis of immaterial defects.
The supplier’s liability for defects shall be as follows:
- The supplier shall remedy products or services evidencing defects either by way of after-the-fact repair free of charge or by replacing the product/re-performing the service at its discretion – without regard to useful life – as long as the defects in question were in evidence prior to transfer of risk and the defect claim period has not expired.
- Defect claims expire after a period of 12 months. This does not apply where longer expiration periods are prescribed under BGB § 438 (1) no. 2 (construction works), §479 (1) (right of recourse) and 634a (1) no. 2 (construction defects), or to cases of loss of life or bodily injury/harm, to willful or grossly negligent violation of obligations on the part of the supplier, or to the malicious concealment of defects. Applicable law concerning suspension of expiration, estoppel and resetting of deadlines remains unaffected.
- The customers must notify the supplier immediately in writing of any defects.
- The customer may withhold payment in cases of defects to an extent proportionate with the nature in scope of the defects having occurred. The customer may only withhold payment for defects, the existence of which is beyond dispute. The supplier may demand reimbursement for expenses incurred in connection with improper/unsubstantiated defect claims.
- The supplier must first be given opportunity to can provide remedy within a suitable period of time.
- If remedial efforts are unsuccessful, the customer may withdraw from the contract or reduce the payment amount – irrespective of potential damage claims as per item XIII.
- Insignificant variation from guaranteed characteristics does not constitute grounds for a defect claim; nor does insignificant compromising of usability, normal wear and tear or damage resulting after transfer of risk from improper or negligent handling, excessive use, inappropriate operating materials, improper construction, unsuitable construction foundations, extraordinary and external factors not specified in the contract or irreproducible software errors. Defect claims may not be filed on the basis of improper modification or maintenance performed by the customer or third parties, including the consequences of such.
- Customer claims for necessary expenses in connection with remediation, including in particular transport, travel, work and materials costs, are excluded if additional expenses were generated by the delivered item in question having been subsequently moved to a different location than the customer’s office location, unless doing so was in accordance with its proper, intended usage.
- The customer may only have recourse claims against the supplier as per § 478 BGB (commercial recourse) if the customer has no agreement provisions in place with his own customers beyond what is provided for in the civil code statutes governing defect claims. Item 8 furthermore applies concerning the scope of customer recourse claims against the supplier under § 478 (2) BGB.
- Item XIII also applies concerning claims for damages. Customer defect claims against us or our agents exceeding the scope of or other than as outlined under item X are excluded.
XI Industrial and intellectual property; infringement
- Barring other agreements/provisions to the contrary, the supplier warrants that products shipped domestically do not infringe third-party patents, trademarks or other protections (hereinafter referred to as ‘industrial property rights’). The supplier shall be liable to the customer as follows within the period outlined under item X no. 2 in the event a third-party should assert justified claims against the customer for infringement of industrial rights through goods delivered and used in accordance with contract:
The supplier shall either, at his discretion, obtain usage rights to the delivered products in question at its own expense, modify said products so as to avoid infringement or replace same. The customer shall be entitled to withdrawal or price reduction if the supplier is unable to implement the above in adequate fashion.
The supplier’s obligation to pay damages is governed under item XIII.
The supplier obligations outlined above only apply inasmuch as the customer notifies the supplier immediately of claims being enforced by third parties and does not acknowledge infringement, keeping all of the supplier’s options open for defending against and settling such claims. If the customer ceases the usage of delivered goods in order to minimize damages, or for other valid reasons, the customer must notify the third party concerned that the cessation of usage does not constitute acknowledgment of infringement.
- Customer claims are excluded if the customer is responsible for infringement.
- Customer claims are furthermore excluded if infringement results from customer specifications, usage unforeseeable by the supplier, modification of the delivered goods by the customer or use thereof in conjunction with products not provided by the supplier.
- Item X nos. 4, 5 and 9 furthermore apply accordingly to customer claims as per no. 1 a) in cases of infringement.
- Item VIII applies accordingly in the event of other infringements.
- Customer infringement-related claims involving against the supplier and/or the supplier’s agents exceeding the scope of or other than as outlined under item XI are excluded.
XII Frustration of purpose, contract amendment
- If delivery is impossible, the customer may claim damages, unless such impossibility is not the fault of the supplier. Customer damages shall however be limited to 10% of the value of deliverable goods unable to be productively deployed due to the impossibility of delivery. This limitation does not apply in the event of compulsory liability for cases of willful intent, gross negligence or loss of life or bodily injury/harm; the above provisions do not alter the burden of proof to the disadvantage of the customer. The customer’s right to withdraw from the contract remains unaffected.
- The contract shall be amended in mutual trust and confidence in the event of unforeseeable occurrences along the lines of item VIII no. 3 substantially altering the commercial significance or content of deliveries or substantially impacting supplier operations. The supplier shall be entitled to withdraw from the contract if such amendment is not economically feasible. In exercising the right of withdrawal, the supplier must notify the customer immediately upon gaining knowledge of the full extent of the impact of the event concerned, even if an extended delivery deadline has already been arranged with the customer.
XIII Other damage claims
- Customer damage and expense reimbursement claims (hereinafter: ‘damage claims’) on any legal grounds whatsoever are excluded, particularly in relation to violations of contract obligations and to impermissible acts. This applies specifically to any costs resulting from production downtime, missed profits, loss of usage or contract nonperformance, and any consequential or indirect damages.
- This does not apply in the event of compulsory liability, e.g. under the Product Liability Act, with cases of willful intent, gross negligence or loss of life or bodily injury/harm, and violation of material contract obligations. Damages for violations of material contract obligations shall be limited however to amounts typical and expectable for such contracts, barring liability for willful intent, gross negligence, loss of life or bodily injury/harm. The above provisions do not alter the burden of proof to the disadvantage of the customer.
- Customer damage claims per item XIII shall expire in the same period as for defect claims as per item X no. 2. The statutes of limitation established under the Product Liability Act apply for damage claims thereunder.
XIV Retention of title
- Goods under contract remain our property until payment in full of all contractual amounts due. This retention of title extends to all items provided subsequently in relation to the goods under contract, e.g. in connection with repairs, replacement parts delivered, or other products/services.
- We retain the right to repossess/reclaim goods under contract in the event of contract violations on the part of the customer, especially late payment. Repossession of goods does not constitute withdrawal from the contract, unless we should explicitly declare such in writing. We have the right to utilize repossessed goods. Productive gain from the usage of such, less reasonable usage related costs, shall be offset against amounts owed by the customer.
- While retention of title persists, the buyer shall have the right to possess and utilize the goods under contract as long as obligations in connection therewith are being fulfilled, including specifically observance of payment due dates. The buyer is obligated to handle goods under contract with care and obtain adequate fire, water damage and theft insurance at his own expense to cover their new-value replacement. Insurance claims in the event of an insured loss are hereby assigned to us in the amount of the value of the goods sold. The buyer must conduct any necessary maintenance and inspection at his own expense
- The customer hereby assigns to P. Druseidt Elektrotechnische Spezialfabrik GmbH & Co. KG any receivables accruing through the commercially proper resale of goods under contract to the customer’s own customers in turn or other third parties, in the amount of the invoice total incl. sales tax, without regard to whether the goods under contract may have been resold after processing. The customer retains the right to collect such receivables after assignment per the above. Our own right to collect these receivables directly remains unaffected. We agree however not to collect such receivables as long as the customer upholds his payment obligations with regard to resale proceeds, avoids falling into arrears and in particular has not filed for bankruptcy, receivership or insolvency or suspended payment. In such case however we may demand that the customer disclose the assigned receivables and the identity of the respective resale debtors to P. Druseidt Elektrotechnische Spezialfabrik GmbH & Co. KG, providing all data necessary for collection, handing over related documents and notifying said (third-party) debtors of assignment.
- Delivered goods still under retention of title may only be processed and/or modified upon our instructions, though we are under no obligation; acquisition of ownership under § 950 BGB is disapplied. Processed goods serve as collateral only for the cost of goods in subject to retention of title. In the event of processing by the buyer together with other goods that are not our property, we retain at all times co-ownership of the new item created (invoice value); consequently, said item also is subject to retention of title accordingly.
- The buyer has the right to the commercially proper processing and sale of goods subject to retention of title. The buyer however likewise assigns receivables accruing thereby to Druseidt in the amount of the portion of the invoiced amount allocatable to us. The provisions outlined under item XIV/4 likewise apply. If the buyer’s customer has contractually excluded on the assignment of receivables, the relationship between us and the buyer shall then be such as if said receivables assigned to us in advance, of whatsoever kind, had been assigned to us. The buyer authorizes us to pursue collection of the receivables on his behalf for our account, if and when the buyer should no longer have the right to collect such directly himself.
- Delivered goods may not be pledged as security or collateral without our permission. The buyer agrees to assist us as necessary in exercising our rights in the event of third-party claiming of goods subject to retention of title.
- The buyer may demand that we release collateral securing our goods exceeding the value of our receivables claims by more than 20%.
XV Data protection
- We process data acquired through the business relationship in accordance with the Federal Data Protection Act. We have the right to process customer data received either from the customer or from third parties in accordance with the Federal Data Protection Act.
We retain the right to obtain credit insurance on transactions and forward the necessary customer data to the insurer. Disclosure is hereby provided of the retention of data in accordance with § 26 (1) of the Federal Data Protection Act.
XVI Place of performance, court of jurisdiction, applicable law
The place of performance for delivery and payment is Remscheid. The place of jurisdiction for any disputes with commercial entities (Kaufmann) shall be Remscheid. We furthermore have the right at our discretion to litigate in the court of jurisdiction at the buyer’s registered office location.
- German substantive law applies to legal relationships in connection with this contract. The UN CISG convention on contracts for the international sale of goods is excluded.
- These provisions shall apply accordingly to transactions with juristic
persons under public law and special funds under public law with regard
to trade transactions discussed in the above terms and conditions.
XVII Concluding provisions
- The contract is severable, remaining legally binding despite the potential invalidity of individual provisions.
Paul Druseidt Elektrotechnische Spezialfabrik GmbH & Co. KG
Status June 2008