Terms of sale Voß Edelstahlhandel GmbH & Co. KG
Offer and Sales Contract
All - even future - supplies and services from the current business relation take place exclusively on the basis of these sales conditions. We do not recognise those of the purchaser´s conditions which are in opposition to ours or deviate from our conditions, unless we expressly agreed to their validity in writing. Our offers are subject to availability, inasmuch as we do not expressly define them as binding in writing. All agreements, which are made between us and the purchaser in respect of fulfilment of purchase orders (or sales orders), must be put down in writing. We can accept quotations sent to us within 4 weeks. We reserve the right of ownership and copyright with regard to illustrations, drawings, calculations and other documents furnished to the purchaser. The former may only be made accessible to third parties with our written consent. This is particularly applicable for such written documents that are defined as "confidential". In case of doubt, the latest edition of Incoterms is the determinant factor for the interpretation of terms of trade.
In so far as nothing is stated to the contrary in our order confirmation, our prices are "ex works" or "from stock"; our prices are excluding turnover tax (V.A.T.) payable. V.A.T. will be shown separately on the invoice in the statutory amount on the day of invoicing. Deduction of discounts is only allowed by written agreement. Fixed prices require express written consent. In the event of agreed delivery terms of more than four weeks after conclusion of the contract we have the right moreover to charge the price valid on the date of delivery. The purchaser has the right to offset only if its counter claims are established as legally effective, undisputed or recognised by us. The purchaser can only exercise a right to refuse performance or right of retention, in so far as the same conditions are fulfilled or, in the case of defects in the supplied goods, are made at least plausible (e.g. through written confirmation of a neutral person or agency) and, what is more, its counterclaim rests on the same contractual relationship.
Delivery Terms and Time of Performance
Delivery terms are only binding on written agreement. The delivery term begins with the date of our written order confirmation, however not before receipt of the documents to be supplied by the purchaser and which are required for fulfilling the order. If we are obliged to purchase materials and services and if, after conclusion of the contract, circumstances are known to us according to which considerable deterioration in the purchaser´s assets is to be presumed, then at our choice we can either demand security within a reasonable period of time or payment without delay against delivery. If the purchaser cannot honour this demand, then we are authorised, subject to further legal rights, to withdraw from the yet unfulfilled part of the contract. Cause to assume considerable deterioration of the purchaser´s assets is given in particular, if it does not honour bill of exchange or cheques deriving from circumstances for which it is responsible. Delays in delivery due to force majeure or unforeseen circumstances for which we are not responsible, such as industrial unrest, strikes, lockouts, lack of means of transport, difficulties in procuring raw materials, official regulations and untimely delivery by our supplies, do not constitute delay on our part. Agreed delivery terms are extended by the duration of the setback. If the impediment lasts longer than three months, then we and the purchaser have the right, after expiry of a reasonable period of time allotted in which to make performance, to withdraw from that part of the contract as yet unfulfilled. Claims for damages in this case are excluded.
Quality, Weights and Measures
Quality standards and measurements are determined in accordance with DIN standards or material specifications, failing which, the relevant Euro standards are applicable or failing these, usage of the market applies, in so far as nothing to the contrary has been agreed in writing. In so far as it is customary in trade, that with regard to goods charged by weight where the weight established at the works by check weighmen rules, this is applicable. The total weight of the shipment is the determinant factor for invoicing. Differences in relation to individual accounting weights will be distributed among these proportionately. Deviations in weight can only be recognised if they are complained about after delivery without delay. For proof of a deviation, official reweighing is required. Indication of weight for piping is based on our theoretical calculation and is, in so far as nothing has been agreed to the contrary, not binding. Deviations from our indications of weight for these reasons therefore do not give the purchaser the right, subject to agreements to the contrary, to advance claims. We have the right, within the frame of commercial standards (10% deviations) to supply more or less, unless something to the contrary has been expressly agreed. When samples and test pieces are supplied their characteristics and properties are not guaranteed, unless something to the contrary has been expressly agreed.
Despatch, Passage of Risk and Partial Shipments
Despatch of the goods takes place at the customer´s risk. Risk is transferred to the purchaser, even in the case of partial shipments, with despatch from the warehouse or works, in so far as nothing to the contrary has been agreed for the case in question. Packaging, shipping route and means of transport are chosen by us. Packaging may only be returned to us sorted, in bundles, in quantities corresponding to no more than the packaging supplied by us and with a period of advance notice of 8 days. Return has to take place within normal business hours at the place of delivery designated by us and at the purchaser´s expense. In case of non-compliance with these regulations we are authorised to refuse to accept packaging. Goods declared ready for despatch must be asked for immediately. Otherwise we have the right to effect shipment or to warehouse them at the purchaser´s expense and risk and to charge at once. Waiting time during unloading at the address of receipt stated by the purchaser will be invoiced to the purchaser. We are authorised to make partial deliveries, in so far as this is not in conflict with a commendable interest of the purchaser.
Every payment will be used for the oldest invoice due. Bills of exchange and cheques will always only be accepted on account of performance. Discount and bank charges are at the purchaser´s expense and have to be paid immediately in cash. If the purchaser incurs in delayed payment, then we are authorised to charge interest on arrears in the amount of 5% above the current base interest rate p.a. of the European Central Bank.
Reservation of Ownership
When we take the item back there is no withdrawal from the contract, in so far as we have not expressly declared this is writing. The purchaser is obliged to treat the item supplied always with care; in particular it is obliged to insure this sufficiently at reinstatement value at its own expense against damage from fire, water and theft. In so far as maintenance and inspection work is necessary, the purchaser must carry these out in good time at its own expense. In the case of levies of execution or other impairments by third parties, the purchaser has to inform us in writing without delay. Inasmuch as the third party is not in a position to grant us the costs for a settlement in or out of court in accordance with paragraph 771 of the Code of Civil Procedure, the purchaser is liable to us for the financial loss incurred. The purchaser is authorised to sell on the delivery item in the ordinary way of business; however, it already makes over to us all amounts receivable in the amount of the final amount invoiced (including V.A.T.) of our amounts receivable which accrue to it from resale against its customers or third parties and this is regardless of whether the object supplied has been resold without or after processing. For collection of this receivable, the purchaser remains authorised to collect, even after assignment. Our powers to collect the account receivable ourselves remain unaltered by this. However, we shall not collect the account receivable in so far as the purchaser honours its payment commitments deriving from the proceeds collected, does not incur in delayed payment and in particular no petition has been filed for insolvency proceedings or there is no suspension of payment under consideration. If this is the case, then we can demand that the purchaser makes known its assigned claims and the debtors, gives all details necessary for collection, interprets the pertinent documents and informs the debtors (third parties) of the assignment. Inasmuch as there is an open account relationship between the purchaser and its customers in accordance with paragraph 355 of the German Commercial Code, the claim assigned to us by the purchaser in advance also refers to the balance recognised, as well as, in the case of insolvency proceedings by the customer, to the then available surplus balance. The processing or transformation of the delivery item by the purchaser will always be undertaken for us. If the delivery item is processed with other items which do not belong to us, then we acquire joint ownership of the new item in proportion to the value of the object purchased in relation to the other processed items at the time of processing. For the item created by the processing moreover, the same is applicable as for the delivery items subject to reservation. If the delivery item is inseparably confused with other items which do not belong to us, then we acquire joint ownership of the new item in proportion to the value of the delivery item in relation to the other confused items at the time when they were confused. If confusion takes place in such a way that the purchaser´s item is to be regarded as the main item, then it is understood as agreed that the purchaser assigns us proportionate joint ownership. The purchaser holds sole or joint ownership which has occurred in this way in safe custody on our behalf. The purchaser also assigns claims to us for protecting our claims against it which arise through the connection of the delivery item with real estate against a third party. We undertake to release the security to which we have a right on demand by the purchaser to the extent that the value of our security exceeds the claims to be protected by more than 20%; selection of the security to be released is incumbent on us.
Warranty for Defects
The purchaser´s warranty rights provide that the purchaser, in accordance with paragraph 377 of the German Commercial Code, examines the item supplied and duly complains about defects without delay. Complaints always have to be made in writing specifically stating the defect. This condition also applies to work performance contracts. Warranty rights do not exist, in so far as there are only insignificant deviations from the property or only insignificant impairment of usability of the supplied item. All our specifications are only service descriptions and not guarantees, in so far as nothing else is expressly agreed. In so far as a defect for which we are responsible is at issue in respect of an item supplied, we have the right at our choice to correct the fault or to supply a replacement. If the purchaser unjustly complains, for reasons for which we are not responsible, concerning the existence of a defect for which we are responsible, we are entitled to charge against the purchaser reasonable costs that we have incurred to correct and/or establish the defect. We can charge against the purchaser additional costs of the expenses necessarily incurred for the purpose of subsequent performance, especially transport, travelling, labour and material costs, in so far as the expenses are increased as a result of taking the item supplied to a place other than the delivery address. Warranty rights, especially regarding defects of quality, are statute barred 12 months after the passage of risk, unless we caused the defects intentionally or grossly negligently or we maliciously none-disclosed defects. This is also applicable for any guarantees that have been given and are binding on us, in so far as nothing else has been agreed or arises from the guarantee. Statutory longer limitation periods, especially for buildings and items that have been used for a building in accordance with their customary application and have given rise to its defectiveness, remain unaffected in connection with the construction of a building and with a work, the outcome of which, consists in the performance of planning or supervisory services for this. These periods of limitation also apply to consequential damage due to defects, in so far as no claims are put forward for unlawful acts. If, as a result of our defective delivery, subsequent performance is required, the period of limitation resulting from the subsequent performance will not be set in motion again. Before the purchaser can put forward other claims or assert other rights (withdrawal from the contract, abatement - relevant lowering of the price -, compensation for damages or reimbursement of expenses) we must first be given the opportunity of subsequent performance within a reasonable time-scale, in so far as we have not given any guarantee to the contrary. Should the subsequent performance fail despite at least two attempts, or should we refuse the subsequent performance, the purchaser can withdraw from the contract or abate (reduce) payment. Section IX of these general sales conditions applies, should claims for damages be put forward. The following provisions also apply in the event of claims resulting from legal defects: Unless stipulated otherwise, we are only obliged to supply the delivery items free from third-party rights in the country of the delivery address. In the event of a violation of third-party rights for which we are responsible, we can, at our choice, either, at our expense, obtain adequate usage right for the agreed or expected use and assign it to the user, or change the delivered item such that the right is not infringed, or replace the delivered item, provided that, in so doing, the agreed or expected use of the delivered item is not impaired. If we find this impossible, if these attempts fail, or if we refuse subsequent performance, the purchaser shall be entitled to assert its statutory rights and put forward its statutory claims. Section IX of these general sales conditions applies to claims for damages.
Liability for other Reasons
Claims for compensation and the reimbursement of expenses due to defects in the delivered goods (hereinafter ´compensation´) are excluded, in so far as we are unable to carry out subsequent performance for reasons beyond our control. Claims for compensation for damage and consequential damage due to defects, which rest on the supply of defective goods, are excluded, in so far as we are not responsible for the defect. Claims for compensation for the violation of a guarantee of durability issued by us or by a third party (paragraph 443 (2) of the German Civil Code), for which we have to take responsibility, is excluded, if we are not to blame for the violation, provided that nothing is stipulated to the contrary in the guarantee of durability. Claims for compensation that are put forward by the purchaser, irrespective of the grounds on which they are based, especially due to the infringement of obligations arising out of and in connection with the contractual obligation, out of negligence prior to or on conclusion of the contract and out of tortious acts, are excluded. In the event of simple negligence, our liability is in any case limited to the foreseeable and typical damages. The abovementioned regulation is not applicable for claims according to paragraphs 1 and 4 of the Product Liability Act, in cases of intent or gross negligence, for the violation of life, or in the case of bodily injury or damage to health, on account of the taking out of a guarantee for the existence of a characteristic (characteristic guarantee) or in the case of the negligent violation of fundamental obligations. Under no circumstances does our liability extend beyond the statutory claims. Changes to the burden of proof are not connected with this regulation. The statutory limitation of claims between us and the purchaser is settled in accordance with the statutory time limits in accordance with paragraph VIII. last section, in so far as claims arising from product liability in accordance with paragraphs 823 and et seq of the German Civil Code are not affected. In so far as our liability is excluded or limited, this is also applicable for the personal liability of our staff, employees, colleagues, representatives and persons employed in performing obligations. The purchaser has to release us from claims by third parties arising from the law governing product liability, when the cause has been established within its area of competency and it is liable as to third parties.
Place of Fulfilment, Court of Jurisdiction and Law Applicable
The place of fulfilment for supply is the actual place of loading. The place of fulfilment for payment is solely our Company head office. In so far as the customer is a businessman, the court of jurisdiction is that of our Company head office. This is also applicable for legal proceedings in respect of legal documents, bills of exchange and cheques. However, we have the right to proceed against the customer also at the court having jurisdiction over its head office. Legal relations between the parties are settled solely in accordance with German Law to the exclusion of the UN Purchasing Law Convention (UNCITRAL/CISG).
Terms of Sale Voss Stainless UK Ltd.
FORMATION OF CONTRACT
All quotations, offers and tenders are made and all orders are accepted subject to the following conditions. Except as otherwise provided in these conditions, all other terms, conditions or warranties are excluded from any contract between the Seller and its customer (the "Buyer") unless expressly accepted in writing by the Seller. If there is a conflict between these conditions and any other terms of the Seller´s quotation, offer, tender or acknowledgement of order, such other terms shall prevail. Quotations shall be available for acceptance for a maximum period of 4 weeks from date of issue and may be withdrawn by the Seller by written or oral notice to the Buyer at any time prior to the Seller´s acceptance. If any statement or representation has been made to the Buyer by the Seller or its agents (other than in the document(s) enclosed with the Seller´s quotation or acknowledgement of order), upon which the Buyer wishes to rely it shall only be entitled to do so if the statement or representation is attached to or endorsed on the Buyer´s order and then only if the Seller subsequently confirms in writing to the Buyer that the Buyer is entitled to rely on the statement or representation.
Unless otherwise agreed in writing, all prices are quoted net ex-works exclusive of VAT. If the Seller agrees to deliver the goods otherwise than at its premises the Buyer shall pay all packaging, transportation and insurance costs and other charges incurred by the Seller in making or arranging such delivery. Where the Seller delivers or arranges delivery of the goods, the Buyer shall be liable to the Seller for carriage costs and any demurrage costs incurred by the Seller if vehicles are unduly delayed at the place of delivery.
Unless otherwise agreed by the Seller in writing, payment shall be due and payable 30 days after the date of invoice. The time for payment shall be of the essence of the contract. The Seller shall be entitled to submit its invoice with its delivery advice note or at any time afterwards except that where delivery has been postponed at the request of, or by the default of, the Buyer, the Seller may submit its invoice at any time after the goods are ready for delivery or would have been ready in the ordinary course but for the Buyer´s request or default. Where goods are delivered by instalments the Seller may invoice each instalment separately and the Buyer shall pay such invoices in accordance with these conditions. No disputes arising under the contract nor delays, otherwise than due to default by the Seller, shall interfere with prompt payment in full by the Buyer. If the Buyer shall default in payment, the Seller shall be entitled, without prejudice to any other right or remedy, to do all or any of the following:
3.5.1. to suspend any or all further deliveries under the contract and under any other contract or contracts between the Seller and the Buyer then current, without notice;
3.5.2. to charge interest on any amount outstanding at the rate of at least 5% above the ECB base rate mature on exceedance of the agreed term of payment. Such interest being charged as a separate, continuing obligation not merging with any judgment;
3.5.3. to serve notice on the Buyer requiring immediate payment for all goods supplied by the Seller under this and all other contracts with the Buyer whether or not payment is otherwise due;
3.5.4. to sue for the price of the goods even though (in the case of the goods) title may not have passed to the Buyer.
Delivery of the goods shall be given and taken at the Seller´s premises unless the Seller has specifically agreed in writing to arrange transport for the goods in which case delivery shall occur when the goods arrive at the designated place of delivery. Time for delivery is given as accurately as possible but is not guaranteed. The Buyer shall have no right to damages or to cancel the contract for failure for any cause to meet any delivery time stated. The date for delivery shall in every case be dependent upon prompt receipt of all necessary information, final instructions or approvals from the Buyer. Failure by the Buyer to take delivery of any one or more instalments of goods delivered in accordance with the contract shall entitle the Seller to treat the contract as repudiated by the Buyer either in whole or in part. The Seller will endeavour to comply with reasonable requests by the Buyer for postponement of delivery of the goods but shall be under no obligation to do so. Where delivery is postponed, otherwise than due to default by the Seller then, without prejudice to all other rights and remedies available to the Seller, the Buyer shall pay all costs and expenses, including a reasonable charge for storage and transportation so occasioned. The Seller will not be liable for unloading the goods at the place of delivery or for placing them in position on site except by prior agreement in writing and if the Seller does participate in the unloading (whether with or without such prior agreement) the Buyer will indemnify the Seller in respect of claims brought against the Seller relating to its participation in such unloading. Section 32(2) of the Sale of Goods Act 1979 shall not apply. The Seller shall not be required to give the Buyer the notice specified in Section 32(3) of that Act.
RISK AND TITLE
Risk shall pass to the Buyer (so that the Buyer is then responsible for all loss or deterioration of the goods or for any damage occurring):
5.1.1. if the Seller is responsible for delivering or arranging for delivery of the goods, at the time when the goods arrive at the place for delivery; or
5.1.2. in all other circumstances, at the time when the goods leave the premises of the Seller. Title to the goods shall only pass to the Buyer upon the happening of any one of the following events:
5.2.1. the Buyer having paid to the Seller all sums (including any default interest) due from it to the Seller under this contract and under all other contracts between the Seller and the Buyer including any sums due under contracts made after this contract whether or not the same are immediately payable; or
5.2.2. the Seller serving on the Buyer notice in writing specifying that title in the goods has passed. The Seller may recover goods in respect of which title has not passed to the Buyer at any time and the Buyer irrevocably licenses the Seller, its officers, employees and agents to enter upon any premises of the Buyer, with or without vehicles, for the purpose either of satisfying itself that Condition 5.4 below is being complied with by the Buyer or of recovering any goods in respect of which title has not passed to the Buyer. Until title to the goods has passed to the Buyer under these conditions it shall possess the goods as fiduciary agent and bailee of the Seller. If the Seller so requires, the Buyer shall store the goods separately from other goods and shall ensure that they are clearly identifiable as belonging to the Seller. During such time as the Buyer possesses the goods with the Seller´s consent, the Buyer may in the normal course of its business sell or hire the goods as principal but without committing the Seller to any liability to the person dealing with the Buyer.
No variations to the goods required by the Buyer shall be binding on the Seller unless agreed by the Seller and the Buyer in writing, including, as part of such agreement, any change to the contract price arising in consequence of the variation to the goods. If the Seller agrees to any such variation, any dates quoted for delivery shall be extended accordingly.
The Seller reserves the right to alter the dimensions or composition of the goods supplied to conform to applicable standards or laws or otherwise within reasonable limits having regard to the nature of the goods.
SHORTAGES AND DEFECTS APPARENT ON INSPECTION
The Buyer shall only be entitled to claim (and then subject to Conditions 10 and 11) for shortages or defects in the goods as supplied which are apparent on visual inspection if:
8.1.1. the Buyer inspects the goods within 3 working days following the date of their arrival at its premises or other agreed destination; and 4
8.1.2. a written complaint specifying the shortage or defect is made to the Seller (and, where the Seller has arranged transport for the goods in accordance with a specific contractual obligation to do so, to the carrier) within 7 working days of delivery in the event of shortage, defect, or non-delivery of any separate part of a consignment, or within 14 working days of the notified date of despatch in the event of non-delivery of a whole consignment or (if applicable), within such shorter period as the carrier´s conditions require; and
8.1.3. the Seller is given an opportunity to inspect the goods and investigate any complaint before any use of or alteration to or interference with the goods. If a complaint is not made to the Seller as provided in this Condition 8, the goods shall be deemed to be in all respects in accordance with the contract (subject only to Condition 9) and the Buyer shall be bound to pay for the same accordingly. Defects in the quality or size of any instalment delivery shall not be a ground for cancellation of the remainder of the contract.
DEFECTS NOT APPARENT ON INSPECTION
The Buyer shall only be entitled to claim (and then subject to Conditions 10 and 11) in respect of defects in the goods supplied which are not apparent on visual inspection at the time of delivery, if:
9.1.1. a written complaint is sent to the Seller as soon as reasonably practicable after the defect is discovered and subsequently no use is made of the goods or alteration or interference made to or with the goods before the Seller is given an opportunity to inspect the goods in accordance with Condition 9.4; and
9.1.2. the complaint is sent within 12 months of the date of delivery of the goods or, in the case of an item not manufactured by the Seller, within the guarantee period specified by the manufacturer of such item. The Buyer shall not be entitled to claim in respect of any repairs or alterations undertaken by the Buyer without the prior specific written consent of the Seller nor in respect of any defect arising by reason of fair wear and tear or damage due to accident, neglect or misuse nor in respect of any goods to which alterations have been made without such consent. The Seller shall not be liable for (and the Buyer shall indemnify the Seller against claims arising from) loss or damage suffered by reason of use of the goods after the Buyer becomes aware of a defect or after circumstances have occurred which should reasonably have indicated to the Buyer the existence of a defect. The Seller may within 15 days of receiving a written complaint (or 28 days where the goods are situated outside the United Kingdom) inspect the goods and the Buyer, if so required by the Seller, shall take all steps necessary to enable it to do so.
Except as otherwise provided in these Conditions, Sections 13 to 15 of the Sale of Goods Act 1979 are to be implied into the contract. If the condition of the goods is such as might or would (subject to these Conditions) entitle the Buyer to claim damages, to repudiate the contract or to reject the goods the Buyer shall not then do so but shall first ask the Seller to repair or supply 5 satisfactory substitute goods and the Seller shall then be entitled at its option to repair or take back the defective goods and to supply satisfactory substitute goods free of cost and within a reasonable time or to repay the price of the goods in respect of which the complaint is made. If the Seller does so repair the goods or supply satisfactory substitute goods or effect repayment under Condition 10.2, the Buyer shall be bound to accept such repaired or substituted goods, repayment and the Seller shall be under no liability in respect of any loss or damage of whatever nature arising from the initial delivery of the defective goods or from the delay before the defective goods are repaired or the substitute goods are delivered or the repayment is effected. In the case of goods not manufactured by the Seller:
10.4.1. the Seller gives no assurance or guarantee that the sale or use of the goods will not infringe the patent, copyright or other industrial property rights of any other person, firm or company; and
10.4.2. the obligations of the Seller relating to defects in such goods are limited to the guarantee (if any) which the Seller receives from the manufacturer or supplier or such goods.
EXCLUSION OF LIABILITY
The Seller shall not be liable in respect of claims arising by reason of death or personal injury except in so far as the death or injury is attributable to a failure by the Seller to exercise reasonable care. Further, under no circumstances whatever shall the Seller be liable for losses special to the particular circumstances of the Buyer, indirect losses, work required in connection with the removal of defective goods and the installation of repaired or substituted goods, loss of profits, damage to property or wasted expenditure. Without prejudice to Condition 11.2, the Seller´s liability, whether in respect of one claim or the aggregate of various claims (other than claims for death or personal injury to the extent that the same is caused by a failure of the Seller to take reasonable care), shall not exceed the contract price of the goods.
If the Buyer shall become bankrupt or shall be deemed to be unable to pay its debts for the purposes of Section 123 of the Insolvency Act 1986 or shall compound with its creditors or if a resolution shall be passed or proceedings shall be commenced for the administration or liquidation of the Buyer (other than for a voluntary solvent winding up for the purposes of reconstruction or amalgamation), or if a receiver or manager shall be appointed of all or any part of its assets or undertaking, the Seller shall be entitled to cancel the contract in whole or in part by giving written notice to the Buyer, without prejudice to any other right or remedy available to the Seller.
The Seller shall be under no liability for any failure to perform any of its obligations under the contract if and to the extent that the failure is caused by act of God, governmental restriction, condition or control or by reason of any act done or not done pursuant to a trade dispute, shortages of labour or materials or breakdown of machinery or any other matter (whether or not similar to the foregoing) outside the control of the Seller.
If these conditions shall be or become void in whole or in part, the other provisions shall remain valid and enforceable and the void provisions shall, where appropriate, be replaced by other provisions corresponding as closely as possible with the void provisions.
No relaxation or delay by the Seller in enforcing any of its rights shall restrict its rights nor shall any waiver by the Seller of any breach operate as a waiver of any subsequent or continuing breach.
The contract shall be governed and interpreted according to the laws of England and in the case of proceedings issued against the Seller shall be subject to the jurisdiction of the English courts only.