GENERAL TERMS & CONDITIONS
1. Scope
The following General Terms & Conditions apply to all contracts concerning deliveries and services between ourselves and individuals or legal entities, unless they are consumers within the meaning of Section 13 of the German Civil Code (BGB).
2. Acceptance of the General Terms & Conditions
The following conditions apply to all deliveries and services unless expressly agreed otherwise in writing. They also apply to all future contracts, unless their validity is explicitly contradicted in individual cases. Any conflicting or deviating terms and conditions of the contracting party will not apply, even if they are not expressly rejected by us.
3. Collateral Agreements, Delivery Dates
Collateral agreements to the contract, in particular delivery dates outside the scope of a written contract, shall not be valid unless they are confirmed in writing. This does not apply to agreements that are made after the conclusion of the contract..
4. Delivery/Force Majeure
Our offers are non-binding until conclusion of the contract. Part deliveries are permitted to a reasonable extent. In the case of force majeure and unforeseeable, exceptional and other circumstances not caused by negligence – e.g. material procurement difficulties, operational breakdowns, strike, lockouts, defects in means of transport, interventions by public authorities, power supply difficulties etc., even when these occur with the upstream supplier – the delivery period shall be extended by a reasonable period if we are prevented from meeting our obligations on time. The liability based on proof of fault of assumption, precaution or prevention by us remains unaffected. If performance becomes impossible or unreasonable for us due to the aforementioned circumstances, we are released from our duty to perform. In the event of the delivery being delayed for longer than two (2) months, the contracting party shall be entitled to withdraw from the contract. If the delivery time is extended, or if we are released from our delivery obligation, or the contracting party withdraws due to the aforementioned circumstances, the contracting party shall not be entitled to claim any damages arising from this. We can only plead the aforementioned circumstances if we have informed the contracting party without delay.
5. Shipping and Risk Transfer
Unless otherwise agreed, the place of performance for our obligations shall be the location of our registered office. If we assume responsibility for shipment, delivery is performed in accordance with Section 447 German Civil Code (BGB). This shall not apply insofar as we deliver with our own vehicles or for mail order purchases. Insurance against damages during shipping shall be supplied only upon explicit request and at the expense of the contracting party. Unless otherwise agreed, the shipping and packaging costs will be invoiced separately. In line with the provisions of the German Packaging Ordinance (Verpackungsverordnung), we will take back the packaging. The contracting party undertakes to return the packaging at their own cost, clean and free of foreign substances and, if necessary, sorted by type. In case of non-compliance with this condition, we shall be entitled to charge the contracting party for any additional costs incurred for cleaning and sorting.
6. Preiserhöhungen
If the contract has come into force at our customary prices and the material and processing costs that form the basis for our calculation increase between signing of the contract and delivery through no fault of our own, we shall have the right to raise our prices in line with the increase in costs.
7. Samples, Quotations
Samples are charged separately. Unless otherwise agreed, quotations incur a charge.
8. Copyrights, Confidentiality
We retain the title to and copyright of any pictures, drawings, sketches and other documents which we provide to the contracting party in connection with fulfilling the order. These items may not be made accessible to third parties without our consent and must be returned to us immediately upon request. Unless otherwise expressly agreed, we do not consider as confidential the information provided to us by the contracting party in connection with their order and the fulfilment thereof.
9. Terms of Payment
All prices exclude the applicable sales taxes. Unless agreed otherwise, our invoices are payable within ten (10) days without deduction. We reserve the right to refuse bills of exchange. These will be accepted only ever on account of payment. Discount and bill charges shall be payable by the contracting party and are due immediately. Late payment interest is charged at 8% p.a. above the base rate of interest. We reserve the right to damages caused by late payment. The contracting party shall not be entitled to set off counter-claims that have not been expressly admitted by us or have been upheld by final decision of a court of competent jurisdiction. If the contracting party defaults on their payment obligations, we have the right to refrain from fulfilling our delivery and service obligations. We are entitled to request the contracting party to provide collateral security for payment claims arising from the contract within a reasonable time limit. After unsuccessful expiration of this period, we may withdraw from the contract or declare the contracting party's entire payment obligations due and payable. In the latter case, we undertake to discount any amount that is not yet due with the contractual interest rate at which we refinance ourselves.
10. Warranty in Case of Defects
We warrant our goods and services against defects for a period of one (1) year from the date of delivery. The statutory provisions apply if we deliver building materials that lead to structural deficiencies in a building. In case of defects occurring in goods or services supplied by us within the warranty period, we will rectify these either by repair or replacement as we think fit. The contracting party is only entitled to claim a reduction in payment or withdraw from the contract if we fail twice to rectify any defects. The warranty period will not be extended in cases where we replace parts when rectifying defects. The contracting party is obliged to inspect the goods immediately upon receipt, insofar as this is expedient according to proper business routine, and to notify us immediately if any defects have been found. If the contracting party fails to give such notification, the goods are considered to be accepted, unless these are defects which were not, or could not have been, noticeable during the inspection. If any such defect is subsequently discovered, notification must be made immediately, otherwise the goods shall be assumed to be accepted despite the defect. Prompt dispatch of the notification is sufficient to retain the rights of the contracting party. Defects of any part of the shipment shall not justify rejection of the entire order, unless the non-defective part is of no interest to the contracting party. The contracting party’s rights under Section 478 of the German Civil Code (BGB) remain unaffected.
11. Damages, Cancellation Due to Breach of Duty, Guarantee
Claims for compensation by the contracting party for breach of duty other than those under the guarantee are excluded. This provision does not apply to damages leading to loss of life, bodily injury or damage to the health of a person, insofar we are to be held responsible for a breach of duty of care, and any other damages which are based on intentional or grossly negligent breach of duty by us. A breach of duty on the part of one of our legal representatives or vicarious agents shall be deemed to be the same as one on our part. The above-mentioned limitation of liability shall also not apply if damages are claimed for a breach of a material contractual obligation for which we are responsible. In this case, however, our liability is limited to average damages which are reasonably foreseeable in connection with contracts and products of that type. In accordance the statutory provisions, the contracting party shall be entitled to withdraw from the contract if we are responsible for a breach of duty, provided that the matter does not concern a defect. If we have provided a guarantee, we shall be liable in accordance with the statutory provisions. The above provisions shall not affect our liability under the German Product Liability Act (Produkthaftungsgesetz) as well as any statutory provisions concerning cases of fraudulent concealment of a defect or provision of a quality guarantee.
12. Retention of Title
All delivered goods shall remain our property until full payment of all claims against the contracting party arising from the entire business relationship have been paid, irrespective of their legal basis (conditional-sale goods). The retained ownership shall be deemed collateral for the total account payable to us (current account clause). In case of negligent breach of contract by the contracting party, in particular in the case of late payment, we are entitled to demand return of the conditional-sale goods. The contracting party undertakes to insure the conditional-sale goods against accidental loss, in particular theft, fire, breakage and water damage at their own expense and to provide evidence of such insurance on request. The contracting party undertakes to repair, maintain and service the conditional-sale goods as necessary and at their own expense. The contracting party is entitled to resell the conditional-sale goods in the normal course of business. In the event of a resale, the contracting party assigns to us in advance any of their claims arising from such resale or other claims (including VAT) against their customers or third parties including any auxiliary claims, regardless of whether the conditional-sale goods are resold with or without further processing. We accept this assignment. Even after assignment, the contracting party shall be entitled to collect the receivables to which they are entitled under the terms of the resale, as long as they duly comply with their contractual obligations, in particular their payment obligations, and do not default on payment. The contracting party shall accept receipt of the incoming payments in trust and transfer the funds to us should any amounts remain payable. Any processing, restructuring or processing of conditional-sale goods together with other goods by the contracting party shall always be undertaken on our behalf, and we shall be entitled to joint ownership of the new item(s) to the value of the processed conditional-sale goods at the time of their restructuring or processing. The contracting party hereby assigns to us any joint ownership shares they shall be entitled to through combination, blending or mixing of the goods delivered by us with other items. We accept the assignment. The contracting party undertakes to safeguard the new item(s) for us, applying the due diligence of a prudent business. The contracting party assigns to us any receivables due to them from the resale or any other legal reason relating to the goods to the value of their joint ownership share as our collateral security for all claims arising from the business relationship. We accept this assignment. If requested by us, the contracting party must notify the third party of the transfer of receivables, and request that they only make payments to us and to share with us all documentation and information relating to the receivables. We are also entitled to disclose the assignment at our discretion. The assertion of rights from the agreed retention of ownership in case of late payment by our contracting party, including the demand for return of the goods, does not constitute a withdrawal from the contract, unless we have explicitly stated this. Seizure of conditional-sale goods by us always constitutes a withdrawal from the contract. In case of seizure of the conditional-sale goods or other access by third parties or the assigned claims, the contracting party shall immediately notify us in writing and surrender the documents relating to the intervention. In the event of the third party being unable to reimburse us for any judicial or extrajudicial costs arising from a claim in accordance with Section 771 of the Civil Procedure Code of Germany (ZPO), the contracting party shall be liable for any loss we may suffer.
13. Release Clause
If the realisable value of the collateral securities assigned to us under the provisions of Point 12 above exceeds the total claim arising from the business relationship by more than 20 %, the contracting party is entitled to demand the return transfer of any amounts exceeding the secured claim.
14. Data Protection
In accordance with the laws governing data protection, we hereby advise you that we keep an electronic record of all data relating to our contracting parties required for the performance of our business.
15. Place of Jurisdiction
The place of jurisdiction for all disputes between the parties arising from the contractual relationship is Solingen, the location of our registered office.
16. Applicable Law
The laws of the Federal Republic of Germany shall apply exclusively to the mutual obligations arising from this contract.
Acme United Europe GmbH, Junkerstr.13-15, 42699 Solingen, Germany, HRB 15127 District Court Wuppertal, Managing Directors: Walter C. Johnson, Georg Bettin
