General Terms and Conditions of Sale and Delivery (GTSD) of Nobelmin GmbH
1. Offers, Confirmation of Orders and Conclusion of Contracts
1.1 Sales contracts become legally binding upon our written acknowledgment of order. The contents of our acknowledgment of order as well as our General Terms and Conditions of Sale and Delivery (hereafter referred to as “GTSD”) shall be the contents of the contract unless the customer raises objections immediately upon receipt hereof. Otherwise, our acknowledgment of order and the GTSD shall be deemed accepted.
1.2 All offers, orders, collateral agreements, and subsequent modifications, which are contrary to the contents of our acknowledgment of order, shall be governed by a confirmation in writing.
1.3 On receipt of the confirmation of the order, the order itself can no longer clear of all charges be modified or canceled and we shall be entitled to assert accumulating expenses respectively.
1.4 In any case, this GTSD shall prevail over any terms and conditions of purchase of our customers.
2.1 The prices quoted in the confirmation of order shall always be binding; however in case of prices changes for raw materials and energy, wage costs, transportation and operating costs, or exchange rates which force us to modify our sales prices, we are entitled to fix new prices for all deliveries outstanding at the time when such price change takes effect.
3.1 The delivery dates quoted by us are only approximate dates. The agreed term of delivery shall be defined at the date when all details of the order are fixed, but at the earliest from the date of dispatch of the confirmation of order. Any delay in delivery shall entitle the customer to refuse the contract only if the customer has in vain requested us by registered mail to perform the order within a grace period of four weeks. Damages of any kind in case of delays contingent on traffic volume (in road and combined traffic) which involve delayed deliveries at the customer cannot be claimed; the customer is in charge to take care to cushion the impact of those delays by means of sufficient disposal of goods.
3.2 Under extraordinary circumstances for which we are not responsible and which constitute a considerable interruption of business operations or render the shipment of the goods impossible we shall be relieved of our obligation to deliver and to respect the terms of delivery.
3.3 In the event of shipment of goods supplied being impossible, goods, which have already been produced, can be temporarily stored at the customer’s cost and risk. In that case the goods shall be invoiced to the customer as if they had been delivered.
3.4 Long and short deliveries of 10 % are rendered possible for the improvement of packing size and freight space.
4. Notification of Defects
4.1 The customer must inspect the goods immediately upon their arrival and receipt at the point of destination. Obvious defects must be claimed in writing immediately and noticed at the CMR-letter. Otherwise such claims shall become forfeited. Hidden defects which cannot be detected immediately upon delivery of the goods must be claimed in writing on notification of delivery details and provision of a sample, at the latest within one month following the arrival of the goods at the point of destination. In case of a timely notification and substantial and irreparable defects to the product, which the producer has accepted as being reasonable, we shall at our own discretion be entitled to take the defective goods back and deliver a replacement or refund the purchase price. The customer is not entitled to any further claims of compensation, in particular, claims for damages. We do not guarantee that the goods can be used for certain purposes and processes except in case of explicit written agreement. In case of damage in current during transportation, an official notification of defects at the transport documents is required.
4.2 Goods returned shall be accepted only if our consent has been obtained in advance.
5. Terms of payment
5.1 Terms of payment, which have been confirmed in writing, shall be binding.
5.2 If the customer fails to comply with the agreed terms of payment we shall be entitled with respect to unperformed contracts and deliveries by instalment to cancel the due deliveries and contracts without any right on part of the customer to a grace period or due deliveries and claim for damages that may be incurred. In addition, we shall be entitled to withhold the delivery as long as the customer has not met his liabilities. If the financial situation of the customers deteriorates after the conclusion of the contract, our claim shall fall due immediately even in case of a deferment of payment.
5.3 If payment is delayed, we shall charge interest on arrears at a rate of 5 % above the current bank rate of the National Bank, but at least of 1 % per month.
5.4 Payments shall be accepted only if they are affected at the place of payment indicated on the respective invoice; in the case of remittance the payment shall be deemed being made if we can dispose of the invoiced amount incurring no costs and banking charges to the debit of our account.
5.5 Bill of exchange, cheque payments shall be accepted only if agreed in advance.
6. Retention to Title
6.1 Depending on meeting all demands (including all those banking charges from current account) the seller and his combine business enterprise shall be granted subsequent business securities, which are given by request as far as the value strongly exceeds the demands.
6.2 The goods shall remain our property until complete payment. Reprocessing prior to payment shall always be made for the seller as a manufacturer, but without being under legal obligation to him. In terms of value shares the joint- ownership of the seller in the uniform matter shall pass pro rata to us. The customer shall keep the (joint-) ownership of the seller free of charge (proviso goods)
6.3 The customer is entitled to reprocess and to sell proviso goods according to the rules of business transactions as long as the customer is not in arrears. For safety the customer shall fully cede the demands arising from a re-sale or an other legal argument (assurance, illegal ground) to the seller. The seller shall authorize the customer unless revoked to collect the demands ceded to the seller on the invoice for himself. This authority of collection can only be cancelled if the customer fails to meet his liabilities to pay duly.
6.4 In case of a sale our prices shall be maintained even in the event of reprocessing (pro rata). If the goods are resold, the customer shall be informed and bound about the reservation of title.
6.5 The customer shall immediately inform us if third parties raise claims to goods delivered under retention of title and assert any rights to them, which are subject to the reservation of title, in particular in case of a resale of the goods by our customer. Costs of legal actions, if any, shall be borne by the customer.
7. Product Liability
7.1 Generally, the manufacturer is liable for the products and their quality. Certificates of quality shall only be issued by the manufacturer, and the maintenance of specification shall be ensured. The seller is relieved of any liability.
7.2 Liability for material damages based on the Product Liability Act (PLA) shall be excluded pursuant to sec. 9 PLA if the party suffering the damage is an entrepreneur.
7.3 Any claims for personal damage or material damages, which are not based on the Product Liability Act, are excluded.
7.4 Purchasers are obliged to bind their customers, if any, by all of these restrictions of liability and they, in turn, shall likewise bind their customers.
Notification Pursuant to Sec. 22 of the Data Protection Act (DPA:0590223).
8.1 Pursuant to the mentioned law we hereby declare that we store and process data, which we have come to know in the course of our business transactions and which, are required for our business operations on automatic data processing systems. The following data are stored: names, address, postal code, sales figures and outstanding amounts by quantity and values. Sales figures by articles and groups of articles, bank connections and credit lines, various control codes for processing. Processed data shall be transmitted only in accordance with the statutory provisions and in connection with the transfer of money and payments. The parties concerned shall only make other transmissions upon special approval.
9.1 We reserve the right to change the above-mentioned terms of sale, delivery and payment.
Place of Performance and Venue, Governing Law, Partial Invalidity.
10.1 The place of performance for deliveries shall be the agreed place of delivery. The supply within the EC countries is invoiced without VAT acc. to Art.28C part E, section 3 of 6.EC regulation.
10.2 The Commercial Court from Ellwangen / Jagst.. shall have exclusive jurisdiction over all disputes.
10.3 These GTSD, all acknowledgements of order and other contracts are exclusively subject by the Deutschland law.
10.4 In case any provision of this contract is invalid this shall not affect the invalidity of the entire contract. The parties undertake to replace a valid provision to achieve the identical commercial results intended by the invalid provision.