General Commercial, Delivery and Payment Terms of EKC.AG 25.05.2018

I. Validity / Offers

1. These General Terms and Conditions of Trade shall apply to all contracts (including future ones) with entrepreneurs in the sense of §14 BGB (German Civil Code), in respect of supplies and other services, including contracts for works and services, particularly in respect of trade in solid fuels and industrial minerals, and other ancillary services in connection therewith.

The purchaser's conditions of purchase shall not be recognized even if we have not expressly

contradicted them upon receipt.

2. Within the meaning of these General Terms and Conditions, the "Buyer" is also the "Customer" for the purpose of works contracts.

3. Our offers are non-binding. Verbal agreements, undertakings, assurances and guarantees of our staff in connection with the conclusion of a contract shall become binding only upon issue of a written confirmation by us. The company reserves the right to make technical modifications as well as changes to the dimensions, weight and quality within the scope of reasonableness.

4. The interpretation of commercial terms in case of doubt shall be based on the Incoterms in the latest version, currently Incoterms 2010.

5. By placing the order, the Customer makes a binding commitment that he wishes to purchase the ordered product. We are entitled to accept the contractual offer made in the order within 2 weeks after receipt by our company. Acceptance can be declared either in writing or by delivering the goods to the Customer.

6. Conclusion of the contract is subject to the reservation that we receive correct and punctual deliveries from our suppliers. This only applies if we are not liable for the nondelivery, especially in case of a covering order with our supplier. If necessary, the Customer will be informed about unavailability of the delivery immediately after it becomes known.

 

II. Prices

1. Provided that the order confirmation does not state otherwise, our prices shall apply “ex works” or “ex warehouse” net cash plus freight costs, VAT, insurance, customs duties etc., unless agreed otherwise.

2. Should charges, customs duties or other extraneous expenses included in the agreed upon price change or be added later than four weeks after the conclusion of the contract, we shall be authorized to modify the price relative to the respective change.

3. Prices quoted free of freight are valid with the provision of open and unimpeded  transportation on the routes in question.

4. We reserve the right to raise the agreed price for quantities not yet delivered, if circumstances arising from a change in the raw material market and/or the economic situation substantially increase the prices of manufacture and/or purchase of the product in question with regard to those valid at the time the prices were agreed upon. In this case the Customer may cancel the orders concerned within four weeks of notification of the price increase, where the price increase considerably exceeds the increase of the general costs of living in the period between the order and the delivery.

 

III. Terms of Payment

1. If no other agreement has been made and if no other instructions are shown on the invoices, the purchase price is due immediately upon delivery without any discount and is to be paid so that the amount is available on our account on the due date. Any payment transfer costs shall be borne by the Buyer. The Buyer shall be entitled to the right of retention or setoff of any counterclaims only if its claims are undisputed or have become legally binding.

2. If it is not possible to dispatch or ship the goods from the point of dispatch on account of missing instructions or documents, or if delivery is delayed for any other reasons for which we are not responsible, the full invoice amount shall be due for payment on the 15th day of the month following notification that the goods are ready for dispatch. In cases where a letter of credit has been opened, the Buyer shall modify the letter of credit conditions accordingly.

3. If the term of payment is exceeded or in the event of default of payment, we shall charge interest in the amount of 8 percentage points above the basic interest rate, unless higher interest rates are agreed. We reserve the right to furnish evidence of greater damage caused by delay.

4. The Buyer shall be in default at the latest 14 days after due date and receipt of the invoice / payment schedule, or acceptance of the relevant service. 

5. If, after conclusion of contract, it should become evident that our entitlement to payment should be at risk due to lack of the Buyer’s performance, we shall be entitled to rights provided by § 321 BGB (plea of uncertainty). We shall then also be entitled to demand immediate payment of all unexpired claims arising out of the ongoing business relationship with the Buyer. In other respects the plea of uncertainty shall cover all further deliveries and services provided on basis of the business relationship with the Buyer.

6. A discount agreed upon only refers to an amount invoiced excluding freight, and requires the payment of all due Buyer's liabilities at the time of discounting.

 

IV. Deliveries, Lead Times and Deadlines 

1. Our obligation to deliver is subject to the proviso that we have received the required goods correctly and on time from 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. The delivery times and dates provided by us are approximate. The delivery times begin with the date of our confirmation of the order and are only valid on the condition that all details of the order have been clarified and all obligations of the Buyer have been fulfilled punctually, e.g. procurement of all official certifications of the authorities, issuing of letters of credit and guarantees, or execution of down payments.

3. Observance of the delivery deadlines and dates agreed upon is determined by the moment of goods dispatch ex works or ex warehouse. They shall be deemed observed upon notification of the readiness for dispatch, if the goods cannot be sent in time without any fault on our part.

4. For import-based drop-shipping deals, the delivery deadlines and dates shall be deemed observed upon our notification of the goods readiness for shipment, and we shall liable to the extent of the statutory regulations, so far as the underlying contract of purchase and sale is by way of exception a firm deal in the sense of §376 HGB.

5. Force majeure circumstances shall entitle us to extend the delivery by the duration of the resulting delay, plus an appropriate start-up period. This also applies even if such events occur during an existing delay. Force majeure is deemed to include currency, trade policy and other sovereign measures, strikes, lockouts, operational disturbances beyond our control (e.g. fire, machine breakdowns, roll breakage, raw material or energy shortages), transportation route obstructions, delays to import/customs clearance and any other circumstances whatsoever beyond our control which make delivery difficult or impossible. It is irrelevant whether such circumstances arise within our facilities, the works of our suppliers or a subcontractor. If the execution of the contract becomes unreasonable for any of the parties due to the above-mentioned events, in particular, if execution of the contract is delayed substantially by more than 6 months, such party may request cancellation of the contract.

6. Part deliveries are be permissible and shall be deemed a separate transaction.

 

V. Reservation of Ownership

1. We reserve the right of ownership of the delivered goods until complete settlement of all claims arising from the current business relationship. Should the Customer act contrary to the terms of the agreement, in particular by defaulting in payment, we may repossess the  object of sale. Repossession of the  object of sale does not constitute withdrawal from contract, unless we have expressly declared it in writing. Seizure of the  object of sale on our part always constitutes withdrawal from contract. After having retaken the  object of sale, we are entitled to sell them, whereby the proceeds from sale shall be offset against the amount owed by the Customer less reasonable handling costs.

2. The Customer shall be obliged to immediately report to us access of third parties to the goods, for instance in the event of seizure, and to immediately notify us of any damage or the destruction of the goods. As far as such third party is unable to reimburse us the court and out-of-court costs of a lawsuit according to § 771 ZPO (German Civil Procedure Code), the Customer shall be liable for the loss inflicted to us.

3. The Customer has the right to resell the purchased goods in the ordinary course of business; however, the Customer shall assign to us, already now, all claims in the amount of the final commercial invoice (including value-added tax if applicable) of our demand that accrue to the Customer by reason of the resale to its customer or third party, irrespective of whether the purchased goods are sold after or without processing. Even after assignment, the Customer remains authorized to collect the receivables, while our authority to collect the receivables ourselves remains unaffected thereby.  However, we undertake not to collect these receivables as long as the Customer meets its payment obligations from earnings received from the sale, does not get into arrears with payment, and in particular does not make application to start insolvency proceedings or ceases to make payments. Should this be the case, however, we may demand that the Customer discloses to us the assigned claims and their debtors, furnishes all necessary information and surrenders all appropriate documents, and notifies the debtors (third parties) of the assignment.

4. The processing or modification of the object of sale by the Customer shall always be carried out on our behalf. If the object of sale is processed with other objects not belonging to us, we acquire joint ownership of the new resulting item (in the amount of the final commercial invoice including value-added tax) in relation of the value of the object of sale to the value of the added objects at the time of the processing. The object of sale generated by the processing shall be governed by the same principles as the object of sale that is delivered with reservations.

5. As a security for our own claim, the Customer shall also assign to us the claims arising against a third party by integration of the ordered goods into real property.

6. On the Customer's request, we undertake to release the securities to which we are entitled, as far as the realizable value of our securities exceeds the claims to be secured by more than 10%, the choice of the securities to be released is within our scope of responsibility.

 

Vl. Grades, Sizes and Weights

1. Grades and sizes of the goods shall be determined in accordance with the agreed standards or, in absence of such an agreement, with the standards effective at the time of the conclusion of the contract, or in absence of such standards in accordance with trade practice. References to standards, such as DIN-/EN/UIC, or their components like material specifications sheets or examination certificates as well as information on qualities, dimensions, weights and suitability for certain uses, or declarations of conformity, manufacturer’s declarations and relevant designations such as CE and GS shall not be deemed to constitute assurances or guarantees. 

2. The weights stated shall be based on measurements taken by us or our supplier. Evidence of the weight shall be provided by presenting the weight slip. As far as legally permissible, weights can be determined without weighing pursuant to standards. Instead of physical weighing we may calculate the weight on the basis of the applicable standards (theoretically) plus 2 ½ % (commercial weight). The number of pieces or bales of material or similar, stated in the delivery note, are not binding in the case of weight measured goods. If individual weighing is not customary, the complete weight of the shipment shall apply. Any differences in relation to the calculated individual weights shall be spread across such delivery proportionately.

3. Quantities are quoted with a tolerance of +/- 10 percent relative to the quantity stated in the contract.

 

VII. Dispatch, Passing of Risk, Packaging, Partial Shipments

1. We determine the method and means of shipping, as well as the carrier and freight forwarder.

2. Unless agreed otherwise, we usually deliver on basis “ex warehouse” or ex works” (FCA).

3. If for reasons for which we are not responsible the goods cannot be transported or it becomes considerably difficult to transport the goods on the planned route or to the planned destination within the designated time, we reserve the right to transport them via a different route or to another destination; the Buyer shall bear all incurred additional costs. The Buyer will be given the opportunity to state its position.

4. By handing over the goods to the forwarder or carrier, at the latest when they leave the works or warehouse, the risk, including a risk of confiscation, goes over in each case to the Customer, for example, even in case of FOB and/or CIF transactions. This shall also be the case with deliveries performed by way of exception on carriage-paid basis. We shall only provide insurance cover upon the Buyer's instructions and at its expense. The duty to unload and the costs for unloading shall be borne by the Buyer.

5. The goods will be delivered unpacked and not protected against rust. If customary, we shall deliver the goods in packed condition.

6. We are entitled to make part deliveries to a reasonable extent.

7. As stipulated by the German Packaging Ordinance, transport packaging and all other packaging shall not be taken back. The Customer is obliged to dispose of the packaging at its own expense.

8. Goods notified as ready for shipment shall be collected immediately. Upon failure to collect the goods within 14 days after receipt of the notice on readiness for shipment, we are entitled to store the goods at our discretion at the expense and risk of the Customer, and to invoice the goods ready for shipment. Moreover, we are entitled after establishing a grace period of another 14 days to cancel the contract or to demand compensation of damages. There shall be no need to establish a grace period if the Customer seriously and finally declines acceptance, or if it has become unambiguous that the Customer is incapable of payment of the purchase price even within the grace period.

 

VIII. Call-Up Contracts

1. Where call-up contracts are concerned, all goods notified as ready for dispatch shall be called up immediately, otherwise we shall be entitled after a reminder at our discretion dispatch the goods at the cost of risk of the Buyer, or put the goods into storage and invoice the Buyer immediately.

2. In the case of orders for continuous delivery, we are to be notified of calls for delivery and grade classification for roughly identical monthly quantities, failing which we may determine the same at our own discretion.

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

 

IX. Liability for Defects

1. Defects in the goods must be communicated immediately in writing, at the latest seven days after delivery. Material defects which cannot be detected even after a very careful inspection have to be notified in writing promptly after being detected, with immediate cessation of eventual processing or reworking, or at the latest before expiry of the agreed or legal statutory limitation period. If the goods have already been resold, processed or transformed, the Buyer shall only be entitled to reduction of the purchase price.

2. After the Buyer has accepted the goods in the manner agreed, no complaints of defects shall be accepted that were identifiable in the agreed type of acceptance procedure.

3. In the event of justified and timely notification of defects, we can either remedy the defect or deliver alternative defect-free goods (subsequent performance). Should we fail to substitute the goods or decline the substitution, the Buyer may reduce the purchase price or, upon expiry of an established adequate additional period of time, withdraw from the contract. We will not be liable in case of insignificant reduction in value or suitability of the goods.  If the goods have already been resold, processed or transformed, the Buyer shall only be entitled to reduction of the purchase price.

4. If the Buyer does not immediately give us the opportunity to verify that the material is defective, and, above all, if it does not provide the criticized goods or samples of it immediately at our disposal, so that we can examine it, all rights regarding the material defect shall no longer be applicable.

5. In the case of goods which have been sold as declassified material – e.g. so-called II a (off-grade) material – the Buyer shall not be entitled to any claims based on defects in connection with the declassification and those it could reasonably expect to encounter. In case of sale of II a (off-grade) material our liability for defects shall be excluded.

6. We assume expenditure in relation to the subsequent performance only if - in the single case - they are proportionate to the purchase price of the goods, however, in no case over 100 % of the purchase price. Expressly excluded are the costs of installing and removing the defective product, as are the costs incurred by the Buyer for remedying or repairing a defect itself, unless the statutory conditions have been met for such cases.

7. The buyer's rights of recourse pursuant to § 478 BGB (German Civil Code) shall remain unaffected.

8. We do not grant any guarantee for a special application or a fitness of the goods for a special purpose. Arrangements to the contrary shall be expressly made in writing; in other respects the Customer shall bear the exclusive risk of fitness and use.

9. No guarantees in a legal sense are granted to the Customer.

10. The statements made by us about the nature of the goods and provided samples or sample analysis data are not binding and do not constitute a contractual declaration of composition of the goods.

 

X. General Limitation of Liability

1. We shall only be liable owing to the breach of contractual and non-contractual duties in particular owing to impossibility, default, fault when initiating contracts and tortious act – also for our executives and other vicarious agents – in cases of willful intent and gross negligence, limited to the damages which are foreseeable when the contract is concluded and are typical for the contract.

2. These restrictions shall not apply where there has been a breach of fundamental contractual obligations for which we are responsible, so far as this endangers the achievement of the  contract purpose, in cases of statutory liability pursuant to the German Product Liability Act, where there has been damage to life, body or health, and to the extent where we fraudulently conceal the defects in the goods or have guaranteed their absence. This shall not affect the rules concerning the onus of proof.

3. Unless otherwise agreed, claims for defects and contractual claims of the Buyer against us on account of and in connection with the delivery of goods shall expire by limitation one year after delivery of the goods, so far as they do not concern compensation for damage to body and health or a typical, foreseeable damage, or are based on intent or gross negligence of the Seller. The period of limitation shall not restart in the case of subsequent performance.

 

XI. Place of Performance, Jurisdiction and Applicable Law

1. Our seat (the Federal Republic of Germany) shall be the place of performance.

2. All transactions and deliveries shall be governed by law of the Federal Republic of Germany, with exclusion of the UN Convention on Contracts for the International Sale of Goods.

3. Should the Customer be a merchant, a legal entity under public law or a public law special fund, the exclusive venue for all disputes arising under this contractual relationship shall be our seat. The same shall apply in the event that the Customer does not have a general legal venue in Germany, or the Customer's branch location, domicile or customary place of residence is not known at the time of bringing forth any legal action.

4. lf individual provisions of the contract with the customer including these standard Commercial Terms and Conditions are or will become partly or wholly legally invalid, the validity of the remaining provisions will not be affected by this. The partly or wholly invalid or unenforceable clause shall be replaced by a clause as close as possible to its original commercial and intended purpose.

 

XII. Miscellaneous

1. Should any Buyer resident outside the Federal Republic of Germany (extraterritorial customer) or a person authorized by it collect EU-customs-cleared goods, or transport or ship them to a foreign country, the Buyer shall submit to us the export clearance documents required for fiscal purposes. If this evidence is not provided, the Buyer shall pay the value added tax on the invoice amount applicable to these deliveries as owed by us.

2. For deliveries of EU-customs-cleared goods from one EU member state to another EU member states, the Buyer shall provide to us prior to delivery its VAT identification number, under which its income is taxed in the EU. Otherwise, it has to pay for our deliveries in addition to the agreed purchase price the VAT amount legally owed by us.

3. If the Customer cancels a submitted order without justification, we can claim 10% of the stipulated price for the costs arisen in connection with order handling and lost profit, irrespective of the possibility to claim a higher actual loss sustained. The Customer shall have the right to furnish evidence of a lesser loss.

 

XIII. Data protection

Our company regularly reviews your credit history when entering a contract and in certain cases where there is a legitimate interest. For this we cooperate with Creditreform-Würzburg and WKV (trade credit insurance) Euler Hermes, from whom we receive the necessary data. For this purpose, we will send your name and contact details to Creditreform or Euler Hermes. Further information on data processing at Creditreform can be found in the detailed information sheet Creditreform-Information according to Art. 14 EUDSGVO or under www.creditreform-wuerzburg.de/eu-dsvgo at EulerHermes under https://www.eulerhermes.co.uk/privacy-notice.html