General Payment and Delivery Terms for Weißenfelser DRAKENA GmbH

I. Validity/Proposals

1. These General Terms of Sale apply to all – including future – contracts with companies, legal entities under public law and special assets under public law regarding deliveries and other services including service contracts. In the case of drop shipping, the terms of the price list of the commissioned supplier shall also apply. The purchaser’s conditions of purchase shall not be recognised even if we have not expressly contradicted them upon receipt.

2. Our proposals are non-binding. Verbal agreements, acceptance and guarantees by our employees made at the time the contract was concluded are not binding until confirmed in writing.

3. The latest version of Incoterms is decisive for interpreting the commercial terms.

4. All information such as dimensions, weights, figures, descriptions, installation sketches and drawings in pattern books, price lists and other printed matter are only approximate references, though determined to the best possible degree, and, in this respect, non-binding for us. 

5. “Purchaser” in these Terms is also the “orderer” in service contracts.

II. Prices

            The prices are ex works or warehouse plus transportation costs and VAT.

2. If not otherwise expressly agreed, the prices and conditions shall be valid as per the current pricelist at the time the contract is finalized. The goods shall be calculated “gross for net”.

3. If, after four weeks after conclusion of the contract, fees or other third party costs included in the agreed price change or arise, we have the right to alter prices accordingly.

4. We have the right to increase the agreed price for non-delivered quantities, if, due to a change in the price of the raw material and/or the economic situation, circumstances arise which increase the price of production and/or procurement of the affected product considerably. In this case, the customer can cancel orders affected by this price increase within four weeks after receiving information about the price increase.

III. Payment and Settlement

1. Unless otherwise agreed or stated in our invoice, payment is due immediately upon delivery without discount and is to be paid in such a way that we have access to the money on the day it is due. Any payment costs shall be borne by the purchaser. The purchaser is authorized to exercise a right of retention and to offset claims insofar as his counterclaims are unchallenged or found to be legally binding.

2. If payment is not made by the day it is due or if there is a delay in payment, we shall calculate interest at a rate of 8 percentage points above the prime lending rate of the European Central Bank unless higher interests rates are agreed upon. We reserve the right to claim compensation for further damages caused by this delay.

3. The purchaser is in arrears at the latest 10 days after payment due date and receipt of invoice/payment schedule or services.

4. If, after the conclusion of the contract, there are any doubts regarding the purchaser’s ability to pay, we shall be entitled to the rights contained in Section 321 BGB (German Civil Code) (defence of uncertainty). In such a case we shall be entitled to demand immediate payment of all accounts under the current business relationship with the purchaser that are not subject to the statute of limitations. The defence of uncertainty shall extend to all other outstanding deliveries and obligations of the purchaser.

5. Any agreed discount only relates to the invoice value excluding transportation costs and shall only be granted if all other outstanding payments have been made by the purchaser at the time of the discount.

IV. Deliveries, Delivery Terms and Delivery Dates

1. Our delivery obligations are based on conditions of correct and prompt delivery to us by our suppliers except in cases in which incorrect or delayed delivery on the part of our suppliers is due to reasons for which we are responsible.

2. Information about delivery times is approximate. Delivery times shall commence with the date of our order confirmation and only apply after timely clarification of all details of the order as well as the timely fulfilment of all obligations by the purchaser, such as provision of all official certifications, presentation to customs, letters of credit, payment guarantees and advanced payments.

3. A delivery period or date is considered to have been met once the goods have been dispatched ex works or ex warehouse. In the event of any delay in shipment for reasons for which we are not responsible, compliance with the delivery time shall be considered to have been met once notification has been given that the order is ready for dispatch.

4. Events of force majeure entitle us to defer delivery for the duration of the interference and an appropriate length of time afterwards. This also applies if such events occur during a pre-existing delay. Force majeure is deemed to include monetary, trade and other governmental measures, strikes, lock-outs, operational disturbances for which we are not responsible (e.g. fire, machine or roller breakage, shortage of raw material or energy), transportation obstructions, delays at customs as well as all other circumstances for which we are not responsible which make delivery and performance considerably difficult or impossible. In such a case it is irrelevant whether these circumstance occur at our company, at a supplier or at a subsupplier. If, as a consequence of the aforementioned events, the execution of the contract becomes unreasonable for one of the parties, particularly if the execution of a large part of the contract is delayed by more than 6 months, this party may cancel the contract.

V. Retention of Title

1. All supplied goods shall remain our property (conditional ownership) until all payments, in particular payments outstanding from this contractual relationship are fulfilled (overall retention of title) or any claims made by the insolvency administrator have been met in full. This is also valid for any arising future and associated claims, such as resulting from acceptant bills of exchange or if payments have been made against defined claims. This overall retention of title shall finally cease once all outstanding claims and liabilities arising from this retention of title have been paid.

2. The conditional ownership property shall be processed and treated for us as the manufacturer according to § 950 of the German Civil Code without our accepting any liability. These processed and treated goods shall be considered conditional ownership property within the meaning of Paragraph 1. If conditional ownership property is processed, used in combination or mixed with other goods by the purchaser, we have the right to shared co-ownership of the new items in proportion to the value of the outstanding invoices for this conditional ownership property related to the invoice value of the other goods used. If our property disappears as a result of this combination or mixing process, the purchaser shall transfer his part ownership of the new goods to us in proportion to the value of the outstanding invoices and shall look after these assets for us at no cost to us. Our co-ownership entitlements are valid on the conditional property in the sense of Paragraph 1.

3. The purchaser may only sell the conditional property using normal sales methods and at normal sales conditions and as long as other payments are not overdue, and he shall transfer all claims from the sale to us, as per Paragraphs 4 to 6. The purchaser is not entitled to dispose of the conditional property in other ways.

4. All claims resulting from the sale of the conditional property to a third party shall be assigned to us, together with all securities obtained by the purchaser for the sale. These shall be treated in the same way as security against the conditional property. If the conditional property is sold by the purchaser together with other goods not purchased from us, the claims from this sale to a third party shall be transferred to us as security in proportion to the invoice value of the conditional property relative to the value of the other goods sold. If the goods in which we have co-ownership rights as per Paragraph 2 are sold, the share of the proceeds in relation to the share we hold of the co-owned goods shall be paid to us. If this conditional property is used by the purchaser to fulfil a service contract, then the claims from this service contract shall be assigned to us in advance.

5. The purchaser is entitled to keep claims back from the sale to a third party. These powers of payment seizure shall become invalid if we lodge an objection, at the latest when payment to us becomes overdue, when a bill of exchange fails or if an insolvency application is made. We shall only make use of our entitlement to object or withdrawal if, once the contract has been finalized, we recognise that any payment claims on our side arising from this contract or another are at risk due to the purchaser’s inability to pay. The purchaser must, upon our demand, inform all his clients of the transfer of payment rights to us and hand over all documents relating to incoming payments.

6. An assignment of claims resulting from the sale of the goods is not permitted unless such an agreement falls directly under real factoring and we have been advised of this fact, also providing the sum obtained via factoring exceeds the value of our secured claim. Payment to us shall become immediately due when the credit note for the factoring value is submitted.

7. The purchaser must advise us immediately of any garnishment or attachment order issued by third persons. The purchaser shall bear all costs related to the seizure of goods or for the return transport, provided the costs are not paid by the third person.

8. If the purchaser has other overdue liabilities or if he does not clear a bill of exchange when it is due, we are entitled to reclaim the conditional property goods and, if necessary, to enter the purchaser’s premises for this purpose. The same is valid if we, after finalization of the contract, recognise that any payments due to us from this contract or from others are at risk due to the inability of the purchaser to pay. This reclaiming of goods does not denote withdrawal from the contract. Regulations regarding insolvency ordnances remain unaffected.

9. If the invoice value of existing securities exceeds the secured claims including ancillary costs (interest, costs incurred, etc.) by more than 50%, then we have to release the securities of our choice upon demand of the purchaser.                                        

VI. Quality, Dimensions and Weight

1. Quality and dimensions are governed by the agreed on standards, or lacking any agreement, by the standards which were valid at the time the contract was concluded, or lacking such, by customary business practice. References to standards such as German Industry Standards/EN standards or their constituents such as raw material data sheets, test certificates and testing standards and details about types, dimensions, weights and uses are not assurances or guarantees, nor are declarations of conformity, manufacturers’ declarations and relevant quality marks such as CE and GS.  

2. As far as weight is concerned, the weight measured by us or by our supplier is decisive. We are authorized to determine the weight without weighing according to the standards (theoretical) plus 2.5% (commercial weight). We can also theoretically determine weights without weighing according to length or surface area, whereby we can establish the dimensions according to recognized statistical methods. The number of units, bundles etc. as stated in the delivery note are non-binding for goods calculated by weight. If no normal individual weighing process is used, the total weight of the shipment shall apply. Any differences in comparison to the calculated individual weights shall be distributed proportionately.

VII.  Dispatch, Risk Transfer, Packaging, Partial Delivery

1. We shall determine the transport route and method as well as transport company and freight forwarder.

2. If, through no fault of our own, transport is not possible or is rendered extremely difficult via the specified route to the specified place in the specified time, we then shall be entitled to effect delivery using an alternative route or to an alternative place. Any resulting increase in cost shall be paid by the purchaser. The purchaser shall be given full opportunity to state his case.

3. The goods are delivered without packaging and without anticorrosion treatment. If required by trade best practice, we shall package the goods. We shall acquire and use appropriate packaging, protective measures and transport aids as dictated by our experience and at the cost of the purchaser. The packaging can be returned to our warehouse. We are not liable for costs for the return transport or for disposal by the purchaser.

4. We are entitled to carry out partial deliveries in acceptable quantities. We are entitled to over or under deliver befitting the agreed on delivery quantities. Specifications of an “approximate” quantity entitle us to over/under deliver and to charge up to 10% accordingly.

VIII.  Call-up Contracts

1. Where call-up contracts are concerned, all goods notified as being ready for dispatch must be called up immediately, otherwise we shall be entitled, after notice is given, to choose whether to dispatch the goods at the cost and risk of the purchaser or to put the goods into storage at our own discretion and to charge the purchaser directly.

2. For contracts requiring constant deliveries, the goods are to be called up in regular quantities and assortments on a monthly basis. Otherwise we shall be entitled to define ourselves how much and what we shall dispatch.

3. If the individual call-ups exceed the contractual quantity, we are entitled to deliver the increased quantity without being obliged to do so. We may invoice the increased quantity at the price valid at the time of the call up or delivery.

IX. Liability for Defects

1. Defects in the goods are to be reported to us in writing immediately, or at the latest, seven days after delivery. Defects which have not been discovered, even after very careful examination, must be reported in writing immediately after they have been discovered, at the latest before expiration of the agreed or legal statutory limitation period.  Any processing of the goods must be stopped immediately. If there is an immaterial reduction in the value or effectiveness of the goods, our liability for defects shall be withdrawn. If the goods have already been resold, processed or reconfigured, the purchaser is only entitled to a reduction in the purchase price.

2. Once the agreed acceptance inspection has been carried out by the purchaser, complaints about defects, which were detectable using the type of acceptiance inspection agreed on, shall no longer be accepted.

3. In the event of a justified, timely claim for defects, we are entitled to choose to rectify the defects or to deliver defect-free goods (supplementary performance). If supplementary performance fails or is rejected, the purchaser can reduce the purchase price or, after establishing and expiration of an appropriate period of time, can cancel the contract. If the defect is not extensive, the purchaser is only entitled to a reduction in price.

4. In the event that the purchaser does not give us immediate opportunity to verify the defect, or if the purchaser does not immediately make available the rejected goods or a sample of them upon our demand, all rights regarding defects shall be excluded.

5. The purchaser shall have no rights arising from defects for goods that are sold as downgraded material – e.g. so-called IIa material – based on its status of being downgraded and any defects which normally are to be expected. In the event that the IIa material is sold, we shall not be liable for any defects.

6. We shall only assume expenses relating to supplementary performance if they are individually deemed appropriate particularly when viewed in relationship to the purchase price, in no case over 150% of the value of the goods. Costs shall be excluded which are connected to the installation and disassembly of the defective goods, as well as costs incurred by the purchaser to rectify the defect if there is no legal requirement to do so. We shall not assume any expenses incurred as a result of the sold goods being transported to another facility rather than to the headquarters or branch of the purchaser unless this corresponds to the contractual use of the goods.

7. The purchaser’s rights to recourse as per Section 478 of the German Civil Code remain unaffected.

8. We do not guarantee a specific use or specific fitness of the goods unless otherwise expressly agreed on in writing. The purchaser shall assume all risk of use and application.

X. General Limitation of Liability

1. If contractual or ex-contractual obligations have been breached, particularly with regard to impossibility, delay, incorrect contract finalization or illegal actions, we shall be liable – also on behalf of our employees or other vicarious agents – only in those cases where intentional and gross negligence is proven, and limited to the anticipated, typical damage usual at the time when the contract was signed.

2. These restrictions shall not apply where there has been a breach of a fundamental contractual obligation for which we are responsible where this endangers the achievement of the purpose of the contract, in cases of statutory liability pursuant to the German Product Liability Act, where there is damage to life, to the body or to health and to the extent where we fraudulently conceal the defects in the goods or have guaranteed their absence. The rules regarding the burden of proof shall remain unaffected.

3. Unless otherwise agreed, contractual claims, which arise due to or in connection with the delivery of the goods, shall lapse 1 year after the inspection of the goods insofar as they do not exert damage to body or health or typical, foreseeable damage or involve intentional or gross negligence on the part of the seller. Our liability for wilful or grossly negligent breach of duties and the statute of limitation for claims for recourse shall remain unaffected. In such cases the statute of limitation shall not restart.

XI. Location of Fulfilment, Place of Jurisdiction and Applicable Law

1. Location of fulfilment for our deliveries and place of jurisdiction shall be Weissenfels.

2. For all legal issues between us and the purchaser, in addition to these Terms and Conditions of Sale, German non-uniform material law shall apply. The provisions contained in the agreement dated 11 April 1980 on contracts via the international sale of goods (CISG) shall not apply.

XII. Miscellaneous

1. If a purchaser, whose registered seat is outside the Federal Republic of Germany (foreign customer), or his representative collects goods or transports/ships them into a foreign country, the purchaser must submit to us the export evidence required for tax purposes. If this evidence is not provided, the purchaser must pay the valid value added tax stated on the invoice and applicable for deliveries within the Federal Republic of Germany.

2. For all deliveries from the Federal Republic of Germany to other EU member states, the purchaser must inform us prior to delivery of his value added tax identification number under which he is taxed within the EU. Otherwise the purchaser must pay the legally required value added tax supplement in addition to the purchase price.

3. Should any provision of these General Payment and Delivery Terms be or become legally ineffective, this shall not affect the validity of the remaining provisions.