General Terms of Sale of Poerschke GmbH & Co. KG
I. Validity, Offers
These General Terms and Conditions of Sale apply to all – including future – contracts with companies, corporate bodies under public law and public-law special assets concerning deliveries and other services, including contracts for work and labour and the delivery of unacceptable articles. In the case of wholesaler-to-client sale at the retailer’s request, the terms of the price list of the commissioned suppler works shall additionally apply. The Purchaser’s conditions of purchase will not be recognised as valid by us even if we do not once more expressly disagree with them after receiving them.
Our offers are subject to confirmation. Any verbal agreements, promises, assurances and guarantees made by our staff in connection with the signing of the contract only become binding once they have been confirmed by us in writing.
In cases of doubt, the Incoterms in their latest version shall be authoritative in interpreting the standard trade terms.
Unless otherwise specified, the prices and terms that are valid at the time of signing the contract shall apply.
Should fees or other third-party costs that are included in the agreed price change more than four weeks after the date of signing the contract, or if new prices and terms come into being, we shall be entitled to change our prices to an appropriate extent.
III. Payment and Settlement of Accounts
Unless otherwise specified or stated in our invoices, following delivery the purchase price shall immediately fall due for payment, without cash discount deduction, and must be paid in such a way that we are able to access the sum on the due date. The Purchaser shall bear the costs of the payment transaction. The Purchaser shall only have a right of retention and a right to set-off to the extent that the Purchaser’s counter-claims have been determined to be undisputed or legally valid.
In the event that the Purchaser fails to pay by the due date, then at the latest from the date of default, we will charge interest amounting to 8% above the base lending rate of the European Central Bank, unless higher rates of interest have been agreed upon. We reserve the right to assert a further claim for damage caused by default.
The Purchaser will automatically get into default at the latest 10 days after the due date of our payment request, without any need for us to send a reminder.
Should it become clear, after signing the contract, that our payment claim is at risk due to the Purchaser’s lack of financial solvency, or should the Purchaser get into default for a considerable sum, or should other circumstances arise which indicate a significant deterioration of the Purchaser’s solvency after signing the contract, then we shall be entitled to exercise the rights specified under Section 321 of the German Civil Code (BGB). We shall then be entitled to demand the immediate settlement of all payment claims arising from the ongoing business relationship with the Purchaser that are not yet due for payment.
An agreed discount always relates only to the invoice value excluding transportation charges, and presupposes the full settlement of all the Purchaser’s bills payable that are due for payment to us at the time of granting the discount. Unless otherwise specified, cash discount periods shall begin from the date of the invoice.
IV. Conducting Deliveries, Delivery Periods and Dates
Our delivery commitment is conditional upon our own deliveries reaching us correctly and punctually, unless we ourselves are culpably responsible for incorrect or late deliveries to us.
Information given on delivery times is approximate. Delivery periods shall begin on the date when we confirm the order, and shall only be valid provided that the Purchaser clarifies all the details of the order in good time and punctually fulfils all their obligations, such as the provision of all official certificates, the furnishing of letters of credit and guarantees, and the carrying out of advance payments.
In determining adherence to delivery periods and dates, the time of dispatch from the works or warehouse shall be decisive. Delivery periods and dates shall be deemed as having been adhered to if the goods cannot be dispatched in due time for reasons for which we are not culpably responsible.
In the event of default in delivery, the Purchaser can set us a reasonable extension of the final deadline and can, if we fail to carry out the delivery before its expiration, withdraw from the contract provided the contract has not yet been fulfilled. In such cases, claims for damages shall be based on Section XI of these Terms.
V. Reservation of Title
All delivered goods shall remain our property (i.e. goods subject to retention of title, hereinafter called “retained goods”) until all our payment claims have been settled, particularly also the respective current account balance claims which we are entitled to assert in the context of the business relationship (reservation of title until outstanding accounts have been settled). This also applies to all future claims that may arise and to future contingent claims, e.g. from acceptor bills of exchange, and also if payments are carried out for specially designated claims. This reservation of title until outstanding accounts have been settled shall finally expire upon settlement of all claims that are still open at the time of payment and that are subject to the said reservation of title.
Any processing and preparation of the retained goods shall take place without obligating or committing us as the manufacturer in any way, as stipulated under Section 950 of the German Civil Code (BGB). The processed and manufactured goods shall be deemed retained goods as defined under No. 1 above. In the event that the Purchaser processes, combines and mixes the retained goods with other goods, we shall be entitled to proportionate co-ownership of the new object, in accordance with the ratio of the invoice value of the retained goods to the invoice value of the other goods used. Should our ownership expire due to such combining or mixing of goods, the Purchaser shall at this point already transfer to us their property rights to the new article or object, amounting to the invoice value of the retained goods, and shall safely store the said new article or object for us free of charge. Our co-ownership rights shall thereby be deemed to relate to retained goods as defined under No. 1 above.
The Purchaser may only sell the retained goods in a normal business transaction, in accordance with their normal terms and conditions of business, provided that they are not in default, and only on condition that the claims arising from the said resale are transferred to us in accordance with Nos. 4 to 6 below. The Purchaser shall not be entitled to dispose of the retained goods in any other way.
The claims arising from the resale of the retained goods, together with all securities which the Purchaser acquires for the payment claim, shall already be ceded to us at this time. These shall serve as security amounting to the same value as the retained goods. Should the retained goods be sold by the Purchaser together with other goods not sold by us, the payment claim from the resale shall be ceded to us in the same proportion as the ratio of the invoice value of the retained goods to the invoice value of the other goods sold. When selling goods to which we have co-ownership rights in accordance with No. 2 above, a portion equivalent to the proportion of our co-ownership shall be ceded to us.
The Purchaser shall be entitled to collect receivables from the resale. This direct debit authorisation shall expire in the event of our withdrawal, but at the latest upon default of payment, non-payment of a note or a request to open insolvency proceedings. We will only exercise our right of withdrawal if, after the signing of the contract, it becomes clear that our payment claim from this or from other contracts with the Purchaser is at risk due to the Purchaser’s lack of financial solvency. At our request, the Purchaser shall be obligated to immediately inform their customers of the said cession to us and to give us the documents that are necessary for collecting the receivables.
The Purchaser shall inform us, without delay, of any levy of execution or other encroachments by third parties. The Purchaser shall bear any costs that must be incurred in order to prevent and annul the said seizure and the costs of the return transport of the retained goods, insofar as they are not reimbursed for the said costs by third parties.
Should the Purchaser get into default of payment or fail to effect payment of a note when payment falls due, we shall be entitled to take back the retained goods and, if necessary, to enter the Purchaser’s premises for this purpose. The same shall apply if, after signing the contract, it becomes clear that our payment claim from this contract or from other contracts with the Purchaser is at risk due to the Purchaser’s lack of financial solvency. The act of taking back the retained goods shall not constitute a withdrawal from the contract. The regulations of the German Insolvency Code (Insolvenzordnung) shall thereby remain unaffected.
If the invoice value of the existing securities exceeds the secured claims, including accessory claims (interest, costs, etc.) amounting in total to over 50%, then at the Purchaser’s request we shall be obligated to release securities of our choosing of corresponding value.
VI. Qualities, Measurements and Weights
In the absence of standards based on customary business practice, qualities and measurements shall be determined in accordance with the DIN/European Standards or material data sheets that are valid on the date of signing the contract. Neither reference to standards, material data sheets or factory-leaving inspection documents, nor data on qualities, measurements, weights and applicability, are composition data, assurances or guarantees, nor, by the same token, declarations of conformity, manufacturer’s declarations and appropriate labels such as CE and GS.
The weighing carried out by us or our presuppliers shall be authoritative regarding weights. The proof of weight shall be provided by presenting the weight note. So far as legally permissible, weights may be calculated without weighing, according to norm. The surcharges and discounts (commercial weights) that are usual in the steel trade in the Federal Republic of Germany shall thereby remain unaffected. In the case of goods calculated by weight, the piece numbers, bundle numbers, etc. given in the notification of dispatch shall be non-binding. If individual weighing is not usually carried out, the total weight of the consignment concerned shall apply. Any differences to the calculated individual weights shall be divided up and allotted to the goods proportionally.
If an acceptance has been arranged by agreement, it can only take place at the supplier works or at our warehouse immediately following notification of readiness for acceptance. The Purchaser shall bear their own personal acceptance costs; the actual acceptance costs shall be calculated for the Purchaser in accordance with our price list or the price list of the supplier works.
Should the acceptance not take place, or not take place in due time, or not take place in full, for reasons for which we are not culpably responsible, we shall be entitled to dispatch the goods without acceptance, or to store them at the expense and risk of the Purchaser and to charge the cost to the Purchaser.
VIII. Dispatch, Passing of Risk, Packaging and Partial Delivery
We ourselves shall determine the dispatch route and the dispatch method, as well as the haulier and forwarding agent.
Once notification has been sent that the goods are ready for dispatch, in accordance with the contract, they must be called forward by the Purchaser without delay – otherwise we shall be entitled, after sending a reminder, to dispatch the goods at the expense and risk of the Purchaser, just as we choose, or to store them at our own discretion and to immediately charge the Purchaser for them.
Should it prove impossible or extremely difficult to transport the goods by the planned method or route to the planned location within the planned period, for reasons for which we are not culpably responsible, then we shall be entitled to deliver the goods by a different method or route to another location: the Purchaser shall bear any additional costs that may thereby arise. Prior to this, the Purchaser will be given the opportunity to issue a statement of opinion in response.
On handing over the goods to a haulier or forwarding agent, and at the latest when the goods leave the warehouse or the supplier works, in the case of all transactions and also of freight prepaid and carriage free deliveries, the risk shall be transferred to the Purchaser, including the risk of confiscation of the goods. We shall only take out insurance on instructions received from the Purchaser and at the Purchaser’s expense. The Purchaser shall assume the obligation and bear the costs of unloading.
The goods will be delivered unpacked and without protection from rusting. If it is customary in the trade, we shall deliver them packed. We shall provide packaging, protection and/or transport equipment, in accordance with our experience, at the Purchaser’s expense. The goods will be taken back to our warehouse. We shall not defray the Purchaser’s costs for transporting them back there, nor the costs of disposing of the packaging.
We are entitled to make partial deliveries, to a reasonable extent. Excess deliveries and short deliveries of the contractually agreed amount that are customary in the trade are permissible.
IX. Call Orders, Ongoing Supply
In the case of contractually agreed ongoing supply, the Purchaser shall give us call orders and product type classifications for roughly the same quantities every month? otherwise, we shall be entitled to determine the quantities ourselves at our sole discretion.
Should the total individual call orders exceed the contractually agreed quantity, we shall be entitled, but not obligated, to deliver the excess quantity. We shall be entitled to calculate the excess quantity at the prices that are valid at the time of the call order or delivery.
X. Liability for Material Defects
Material defects must be promptly reported to us within seven days of delivery at the latest, by means of a written notification. Material defects which cannot be detected even through painstaking inspection within this period must be reported to us by means of a written notification as soon as they are discovered, and at the latest before the expiry of the agreed or legally stipulated period of limitation, and all processing and preparation work on the defective product must immediately cease as soon as the said defects are discovered.
In the event that a justified notification of defect is sent to us within the stipulated period, we shall be entitled to choose whether to rectify the defect or to deliver a product that is free from defects (supplementary performance). In the event of failure or refusal to carry out the said supplementary performance, the Purchaser can, after a reasonable set period has expired without the carrying out of the supplementary performance, withdraw from the contract or request a reduction in the purchase price. If it is not possible to rectify the defect or if the product has already been sold, processed or remodelled, the Purchaser shall only be entitled to request a price reduction.
We shall only carry out any expenditure in connection with the supplementary performance insofar as this is fair and reasonable in individual cases, particularly if it is commensurate with the purchase price of the product. We shall not carry out expenditure on grounds that the goods sold have been transported to a location other than the agreed place of performance, unless the said agreed place of performance is necessary for their contractually agreed use.
After the Purchaser has carried out the acceptance of the goods as contractually agreed, any notification of defects which would have been detectable during the agreed acceptance procedure shall be precluded. If a defect has remained unnoticed by the Purchaser due to negligence, the Purchaser shall only be entitled to assert any rights based on the said defect provided we have maliciously concealed the said defect or have furnished a guarantee for the quality of the object.
Should the Purchaser fail to promptly give us an opportunity to examine the product for defects for ourselves, and should they, in particular, fail to promptly make the product, or samples of it, available to us for testing purposes at our request, then all the rights of the Purchaser relating to the material defect shall thereby cease to be valid.
In the case of goods which have been sold as downgraded material, the Purchaser shall not be entitled to exercise any rights based on the material defects which were the reason for the stated downgrading and on such defects as must normally be expected. When selling goods classified as seconds (“IIa goods”), we shall not be liable for any material defects.
Our liability is largely based on Section XI of these Terms and Conditions. The Purchaser’s rights of recourse, as stipulated under Sections 478 and 479 of the German Civil Code (BGB), shall thereby remain unaffected.
XI. General Limitation of Liability and Limitation of Time
We shall only be liable for any violation of our contractual and non-contractual obligations, particularly due to impossibility, default, negligence prior to the contract and impermissible conduct – including any such violations by our executive staff and other auxiliary persons – exclusively in cases of wilful intent and gross negligence, whereby our liability shall be limited to the typical contractual damages foreseeable at the time of signing the contract. For the rest, any liability on our part is precluded, even for direct harm and consequential harm caused by a defect.
These limitations of liability shall not apply in the event of any culpable violation of our basic contractual obligations insofar as the said violation puts at risk the achievement of the purpose of the contract, nor in the event of culpably caused harm to life, limb and health, nor if and insofar as we have furnished a guarantee for the quality of the sold article, nor in cases of mandatory liability in accordance with the German Product Liability Act (Produkthaftungsgesetz). The rules on the burden of proof shall thereby remain unaffected.
Unless otherwise specified, any contractual claims that may arise for the Purchaser against us occasioned by, and connected to, the delivery of the goods shall lapse one year after the delivery of the goods. This limitation of time shall also apply to goods that, in accordance with their usual application, are used for building a construction and have caused it to be defective, unless that manner of use has been agreed upon in writing. This shall not affect our liability for any wilful and grossly negligent violations of our obligations, for culpably caused harm to life, limb and health, nor the lapse of rights of recourse in accordance with Sections 478 and 479 of the German Civil Code (BGB).
XII. Place of Performance, Legal Venue and Applicable Law
For ex works deliveries, the place of performance for our deliveries is the supplying works, and for other deliveries, our warehouse. We shall be entitled to choose whether the legal venue should be Bottrop or the Purchaser’s registered office.
Supplementary to these Terms and Conditions, German non-unified law, particularly that of the German Civil Code/Commercial Code (BGB/HGB) shall apply to all legal relationships between the Purchaser and ourselves. The provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11th April 1980 shall not apply.
If a Purchaser who is domiciled outside the Federal Republic of Germany (foreign customer) or their agent picks up goods, or transports or ships them abroad, the Purchaser shall forward us the export certificate that is needed for taxation purposes. Should the Purchaser fail to provide this certificate, they shall pay the value-added tax that is payable on the invoice amount for deliveries within the Federal Republic of Germany.
In the case of deliveries from the Federal Republic of Germany to other EU member states, then before delivery the Purchaser shall inform us of the value-added tax identification number under which they conduct taxation payments for purchases within the EU. Otherwise, in addition to the agreed purchase price, the Purchaser shall pay the value-added tax that is legally payable by us for our deliveries.
When charging for deliveries from the Federal Republic of Germany to other EU member states, the value-added tax regulation of the recipient EU member state concerned shall apply if the Purchaser is registered for value-added tax in another EU member state or if we are registered for value-added tax in the recipient EU member state.
Should any provision of these General Terms and Conditions of Delivery and Payment be or become ineffective, it shall not affect the effectiveness of the remaining provisions.
Status: July 2015