General Terms and Conditions of Sales and Delivery for Lima Steel GmbH
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I. Scope of Application
1. All offers and agreements are governed exclusively by the following terms and conditions. Any terms and conditions of the Buyer that add to
or deviate from our own shall not be applicable.
2. Our Terms and Conditions apply only to persons who, on concluding a
legal transaction with us, are acting in their vocational capacity as
tradespersons or self-employed persons (entrepreneurs within the
meaning of Section 14 German Civil Code [Bürgerliches Gesetzbuch –
BGB]) and entities and separate assets under public law.
II. Conclusion of Contract, Condition of the Goods
1. Our offers are non-binding as a basic principle. A contract is not
deemed as effective until the Buyer has received our written confirmation
of order, or we have begun to perform the deliveries or services. Our offer,
our confirmation of offer and these terms and conditions are authoritative
with regard to the content of the contract. Any subsequent amendments,
additions or side agreements, in particular drawings, figures, technical
data, measurements, weights or other specifications are to be agreed in
writing.
2. The contractually agreed condition of our goods includes only those
properties and features that are specified in our offer or in our confirmation
of order.
3. Declarations concerning the condition and durability of the goods, in
which we grant the Buyer additional rights in a warranty case without
prejudice to his statutory claims, shall constitute a guarantee of condition
and durability within the meaning of Section 443 BGB only on condition
that we have expressly designated them as a guarantee.
4. The quality and dimension of materials we supply are determined
exclusively in accordance with international materials standards. If no
such standards exist, standard business practice shall apply.
5. Excesses or shortages in quantities are permitted in accordance with
effective standards and established practices. For tubes the delivery
tolerance of +/- 10%, at least one random length, is permitted.
III. Delivery, passing of risk
1. Deliveries shall be made ex works (EXW- Incoterms 2020).
2. Part-deliveries are permissible within reasonable scope unless
explicitly excluded. This shall also apply to excess or short deliveries
common within the sector.
3. Unless explicitly agreed otherwise, the goods shall be delivered in
unpackaged form and without protection against rust. Any agreed packing
shall be provided against a standard surcharge and in the form commonly
used in trade. Any such agreement must be recorded in writing. Packing
material will not be taken back.
4. In the absence of a separate agreement, the manner and path of
dispatch are left to our discretion.
5. The risk of accidental loss of or accidental damage to the goods shall
pass to the Buyer as soon as we have handed over the goods for
transportation to a forwarder, to the carrier or to any other person or
agency designated to execute the shipment, at the latest, however, when
the goods leave our factory or warehouse. If the goods are ready for
dispatch and dispatch is delayed through no fault of our own, the risk is
deemed to have passed to Buyer when notification of readiness for
dispatch has been received. In such a case we are entitled to dispatch
the goods at our discretion and at the expense and risk of the Buyer, or
to store goods at our discretion and to invoice them immediately.
6. If the goods are dispatched using loading aids (pallets, etc.), the Buyer
is obliged to return the same quantity and quality of loading aids to us at
no charge. Should the Buyer fail to meet this obligation even after a
deadline of one week has been set, he shall owe us the amount required
to procure the same quantity and quality of loading aids.
IV. Delivery dates, Impediments to Delivery, Withdrawal
1. Dates for delivery and performance of services are binding only on the
condition that we have confirmed this explicitly. Delivery dates refer to
dispatch ex works, or, in the case of delivery to the Buyer’s place of
business (‘frei Haus’), the date of receipt at the Buyer’s place of business.
2. We are not deemed as defaulting on our obligations to deliver and
perform until expiry of a reasonable extension of term that we have been
granted.
3. A Force Majeure Event means any act or event or circumstance which
itself and/or its consequences are unforeseeable, unavoidable, beyond a
party’s reasonable control and which prevents or delays the affected
party’s performance of its contractual obligations. This shall include, but
not be limited to the impediments stipulated in paragraph 3 of the ICC
Force Majeure Clause 2020, as well as expressly cyberattacks, shortage
in energy supply, currency and trade restrictions, embargo, sanction all
events in connection with SARS-CoV-2 and the Russian attack against
Ukraine as well as countermeasures directed against it (in particular
SANCTIONS). The affected party shall notify the other party of the Force
Majeure Event within reasonable time after gaining knowledge of the
circumstance. In case of Force Majeure Event the non-performing party
is, from the time the Force Majeure Event causes the impediment to
perform, relieved from (i) its duty to perform its obligations under the
contract, (ii) any liability in damages or any other contractual remedy for
breach of contract. This shall also be the case if engaged sub-suppliers
are affected by an event of Force Majeure. In that event the affected Party
shall only be obliged to recourse to alternate and/or additional sources if
the services, equipment and/or materials are available at equivalent price
and corresponding other conditions. If the event of Force Majeure
continues in effect for more than 180 days, the parties shall enter into
discussions with a view to alleviating the effects of the event of Force
Majeure and/or to agreeing upon alternative arrangements as may be fair
and reasonable to both parties.
4. Cases of force majeure shall interrupt our delivery obligation for the
duration and scope of their effect, even if we are already in default of
delivery.
5. If we have concluded a congruent coverage transaction with our own
supplier in a timely manner, any delivery dates we specify are subject to
the condition that we ourselves are properly supplied in a timely manner.
6. In the cases referred to in clauses IV. 3 and 5, we shall be entitled to
withdraw from the contract if we have informed the Buyer without delay
about a case of force majeure having arisen as detailed in Section IV.3.
hereof, or have informed the Buyer about unpunctual or improper delivery
in the cases detailed in Section IV.5., and we reimburse the Buyer without
delay for any counter-performance he has rendered. We expressly
commit ourselves to inform and reimburse the Buyer without delay, in
accordance with sentence 1 of this clause.
7. In the event that delivery is delayed for reasons for which we bear
responsibility, our liability shall be determined exclusively by the statutory
regulations.
8. An acceptance, without reservations, of delayed deliveries or services
shall constitute a waiver by the Buyer of his contractual or statutory claims
unless the Buyer notifies us of such delay within 14 days after delivery.
V. Prices and Payments
1. Unless otherwise explicitly agreed, our prices are ex works, for
unpacked goods, and exclusive of value added tax. Ancillary transport
expenses (e.g. taxes, customs duties, freight charges, fees, other levies,
insurance premiums, etc.) as well as any materials required for dispatch
must be paid separately by the Buyer. If the goods are shipped by sea,
prices are FOB (Incoterms 2020) at the port of departure. If a price has
not been explicitly agreed, the applicable prices shall be those in our
currently valid price list.
2. In the case of carriage paid deliveries ex warehouse, the prices are for
delivery, unloaded, to the place of use via hard roads.
3. Once we have transferred the purchased object to the Buyer or the
transporter and our invoice has been received by the Buyer, our invoices
are due for immediate payment onto a bank account we specify, without
deductions of any kind. The criterion for timely payment is the date on
which the amount is credited to our account.
4. Payments by the Buyer are always credited against the oldest debt,
firstly against any expenses incurred (including any intervention
expenses) and then against any interest payable.
General Terms and Conditions of Sales and Delivery for Lima Steel GmbH
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5. Any bills of exchange or cheques shall be accepted only as payment
pending full discharge of the debt. We are under no obligation to accept
bills or cheques.
6. Insofar as it is common practice in the trade that in the case of goods
invoiced by weight, the weight as determined by the weighing master at
the factory is decisive, then the said weight shall apply. Proof of weight is
deemed provided on presentation of the weighing note, under exclusion
of any other proofs. Bundled goods are weighed gross for net, including
lashing materials.
7. If, after conclusion of contract, taxes, any customs duties, freight
charges, fees or other levies of any kind that affect the price of the goods
are increased or newly imposed, or if such costs rise through no influence
of our own, the Parties shall, negotiate an appropriate increase in the
purchase price at our request. If no agreement is reached within 30 days
after notifying of our request, we shall have the right to withdraw from the
contract.
8. Should Buyer default on any performance under the contract, we shall
have the right to set the Buyer a 14-day extension and, if said deadline
expires to no avail, to withdraw from the contract or to sell or auction the
goods and to demand compensation for non-fulfilment of the contract The
same principle shall apply if the Buyer is in default on part of a
performance.
9. In the event of defaulted payment, the Buyer must pay us default
interest at nine percentage points above the basic rate. The same
obligation shall apply if payment is made later than ten days after receipt
of invoice.
10. The Buyer is permitted to retain payments or to set-off against
counterclaims only and insofar as the counterclaims are due for payment
and are undisputed or have been established by a court of law in a final
and absolute decision.
11. We have the right to set-off our claim to payment against those of the
Buyer and against those of companies with which the Buyer is corporately
affiliated, regardless of the legal grounds – as settlement of interest, if
necessary -, even if the respective claims are due at different dates.
Where relevant, this entitlement on our part shall relate to the debit
balance only.
12. Claims against us may not be assigned except with our consent. This
shall not apply to a monetary claim.
VI. Rights and Duties of the Buyer in case of Defects
1. If acceptance procedures are agreed, such acceptance may only be
carried out at our storage depot or at the respective supplying factory; it
must be carried out at the latest immediately after notification of readiness
for dispatch. All costs associated with acceptance or charged to us in this
connection by third parties shall be borne by the Buyer. In the event that
special regulations on quality apply, the Buyer shall be obliged to perform
acceptance procedures on the goods at our request. If acceptance is not
carried out, or is carried out late or incompletely, we shall be entitled to
dispatch the goods without acceptance, or to store the goods at the
expense and risk of the Buyer. The goods are deemed to be delivered in
accordance with the contract once they have been dispatched or placed
in storage.
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. If a defect was not identified by the
Buyer on account of negligence, he may not assert any rights in respect
of such defect unless we maliciously withheld such information or
provided a warranty.
3. If no acceptance procedure has been agreed, then the Buyer is under
an obligation to examine the goods immediately on delivery. Any defects
identified on delivery must be notified to us immediately. Obvious defects
must be notified within eight days after delivery (dispatch suffices).
Defects that were not identifiable even during a proper examination of the
goods, must be notified to us without delay (dispatch suffices) as soon as
they become evident in the normal course of business. The Buyer may
not base a claim on defects that have not been notified in a timely manner.
4. In the case of goods that were sold as sub-quality goods, the Buyer
has no warranty rights in respect of the specified grounds for lowered
quality and in respect of such defects as could normally be expected in
such cases. We shall not accept any liability for defects in goods sold as
Class IIa goods.
5. The Buyer shall provide us, on request and without delay, with samples
of the material to which objections have been raised.
6. Before goods that are the subject of a complaint can be further
processed or resold, we must be given an opportunity to examine the
complaint.
7. In the case of justified and timely complaint about defects, the Buyer
shall have the statutory rights in relation to the defective goods, but
subject to the following provisions:
a. If the goods are defective, the Buyer’s claims shall be restricted initially
to performance of the contract. This provision shall not apply if it is
unreasonable for the Buyer to accept such performance of the contract.
We may choose at our discretion between rectification of the defect or
subsequent delivery. If efforts at performance of the contract fail twice, or
are refused by us, the Buyer may reduce the purchase price or withdraw
from the contract.
b. The Buyer does not have this right of withdrawal if the defect is minor.
c. Section VII below shall apply to compensation claims.
d. We shall bear any expenses incurred in remedying defects only to the
extent that they are of reasonable amount in the specific case, particularly
in relation to the purchase price of the goods. We shall not bear any
expenses that are incurred because the goods were brought to a different
location than the agreed place of performance, unless such transfer
accords with their contractual usage.
e. If several goods were sold and only single goods are defective, or if
only single parts of one sold good are defective, any right of the Buyer to
withdraw from the contract shall be confined to the defective goods or the
defective part of a good. This principle shall not apply if the defective
goods or the defective part of a good cannot be separated from the other
goods or parts without causing damage to, or reducing the functionality of
the good or goods, or if such separation would be unacceptable for the
Buyer. The Buyer must explain the reasons for such unacceptability.
VII. Limitation of Liability, Exclusion of Withdrawal
1. Unless otherwise specified below, any additional or more extensive
claims by the Buyer against us are excluded. This shall apply in particular
to claims for damages for a breach of duties arising from the obligation or
from unlawful acts. We are therefore not liable for any damage not
deriving from the delivered goods themselves. We are in particular not
liable for any loss of profit or other financial losses by the Buyer.
2. The limitations of liability indicated above do not apply in the case of
specific intent, gross negligence on the part of our legal representatives
or senior employees, and in the event of culpable violation of significant
contractual obligations. In the event of culpable violation of significant
contractual obligations, we are liable – other than in cases of specific intent
or gross negligence on the part of our legal representatives or senior
employees – only for standard contractual loss, or loss which might
reasonably have been expected.
3. The limitation of liability is also not applicable in those cases where
there is liability in accordance with product liability laws in the case of
defects in goods supplied for private use. It is also not applicable in case
of injury of life, body or health and in the absence of guaranteed
characteristics, if, and insofar as the object of the guarantee was to cover
the partner against any losses not deriving from the goods supplied
themselves.
4. Insofar as our liability is excluded or limited, this is also applicable to
the personal liability of our employees, workers, personnel, legal
representatives and vicarious agents.
5. The legal provisions relating to burden of proof are not affected by this.
General Terms and Conditions of Sales and Delivery for Lima Steel GmbH
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VIII. Retention of title
1. The goods shall remain our exclusive property until all our claims against
the Buyer arising for whatever legal reason now or in the future (including
all current account debit balances) have been settled in full.
2. Any processing or transformation of our goods by the Buyer is always on
our behalf as manufacturer, as defined in the Section 950 of the German
Civil Code. If our goods are processed, transformed or inseparably
combined or mixed with other items that are not our property, we acquire
co-ownership of the new object in proportion to the value of our goods and
the value of the other processed object at the time of such processing,
transformation, mixing or combination. If the other object is to be deemed
the primary object, it is hereby agreed that the Buyer shall transfer
proportionate co-ownership to us. We hereby accept said transfer of
proportionate ownership. The Buyer shall keep our (co-) ownership on our
behalf at no charge. The product that results from processing is governed
by the same provisions and conditions as the goods we supplied with
retention of title.
3. The Buyer has the right to process and to sell the goods sold to him under
retention of title in the ordinary course of business as long as he is not in
default with his payment obligations toward us. Resale is equal in status to
integration in land and soil or in facilities associated with buildings or use in
fulfilling other contracts for services or deliveries. The right to process and
resell the goods shall also be null and void if the Buyer’s financial situation
deteriorates significantly. In regard to the goods encumbered with a
retention of title, pledges or transfers of ownership by way of security are
not permitted. The Buyer hereby assigns to us by way of security all claims
it may acquire from resale of the goods (including all current account debit
balances), as well as any insurance claims and claims against third parties
due to damage, destruction, theft or loss of the goods. We hereby accept
this assignment of claims. If we are entitled only to co-ownership of the
goods encumbered with a retention of title, anticipatory assignment shall be
confined to that part of the claim corresponding to our share in co-ownership
(based on the invoice value). When reselling the goods, the Buyer must
retain ownership of the goods encumbered with a retention of title until his
customers have paid the purchase price in full. The Buyer shall not be
entitled to resell the goods to third parties if assignment of the purchase
price claim accruing from resale is prohibited.
4. We authorize the Buyer, subject to revocation, to collect the claims
assigned to us to his own account and in his own name. This authorisation
to collect may be revoked if the Buyer fails to meet properly his obligations
to render payment to us, or if our claims to payment seem jeopardized by
the Buyer’s deteriorating financial status. When the proceeds of sale have
been credited to the Buyer, our claim to payment shall be due immediately,
and must be paid by immediate bank giro transfer without deductions of any
kind. The Buyer shall inform us, on request, of the debtors owing the
assigned claims. It is not permitted to assign the claim accruing from resale
unless such assignment is made as part of a genuine factoring transaction
that shall be notified to us and in which the proceeds from factoring are at
least equal to the value of our secured claim. The Buyer shall be obliged to
disclose the assignment to the factor and to draw attention to our ownership.
The factoring proceeds must be credited to one of our accounts to the
amount of our secured claim. The Buyer hereby assigns to us his claim to
payment from the factor to the amount of receivables to be secured. We
hereby accept this assignment of claims.
5. The right of the Buyer to hold possession of the goods encumbered with
a retention of title shall extinct if he fails to honour his obligations under this
or other contracts. In such an event, we shall have the right to enter the
premises of the Buyer without granting an extension of term or declaring our
withdrawal, to take possession of the goods encumbered with a reservation
of title ourselves and to liquidate said goods in the best possible way by
private sale or by auction, without prejudice to the Buyer’s payment and
other obligations towards us. After deduction of expenses, the proceeds
shall be credited to the Buyer against the amounts he owes. Any surplus
amount shall be paid out to the Buyer.
6. If third parties seize or confiscates the goods encumbered with a retention
of title, the Buyer shall draw attention to our ownership and notify us
accordingly without delay. Our expenses for intervening shall be borne by
the Buyer, to whom we shall assign any claim to reimbursement that we
may acquire against the third party concurrently with payment of the
intervention expenses.
7. The Buyer shall be under an obligation to insure the goods encumbered
with a retention of title against common risks such as theft, fire and water
damage at his own expense, to an adequate extent and for the real value
of the goods, and to store the goods in such a manner that our property is
not put at risk. In case an insurance claim becomes payable, the Buyer
hereby assigns to us in advance his claims against the insurance company.
We hereby accept this assignment of claims.
If the Buyer fails to honour the obligation pursuant to this clause VIII, 7. first
sentence, he shall be obliged to pay a contractual penalty of Euro
10,000.00.
8. The Buyer has the right to require us to release claims to the extent that
the value of our security exceeds our securable claims by more than 10%.
We shall select at our own discretion the claims to be released.
9. If the laws of the country in which the goods are delivered or in which the
goods are located do not permit a retention of ownership pursuant to the
above provisions, but said laws permit the Buyer to retain similar rights in
rem to the object of delivery in order to secure his claims, or to have such
rights granted to him, then such rights shall be deemed on conclusion of
contract as having been retained on our behalf and granted to us by the
Buyer. The Buyer agrees to collaborate in all measures that we wish to take
in order to protect our ownership rights or other rights vested in the goods
encumbered with a retention of title. In the case of exported goods, we may
also require that the Buyer provides us with banker’s guarantees as security
for all our claims under the contract.
IX. Limitation periods
1. The period of limitation for claims asserted by the Buyer on account of
defective goods is one year. Claims based on a defect in an object that has
been used for building construction in accordance with the normal use of
such object, and which has caused the defectiveness of such a building
shall be barred by limitation after five years. Claims asserted by the Buyer
on account of a defect in the object of sale, and which consist in a third
party’s rights in rem, on the basis of which the surrender of the object of sale
may be demanded, or in some other title that may be registered against real
property, shall be barred by limitation after ten years. The respective period
of limitations starts with delivery.
2. Other contractual claims by the Buyer on account of breaches of
obligation shall be barred by limitation after one year. This shall not apply to
the Buyer’s right to withdraw from the contract on account of a breach of
obligation that does not consist in a defect in the goods.
3. Claims arising from a warranty shall similarly be barred by limitation after
one year.
4. In deviation from clauses IX. 1-3 above, the statutory periods of limitation
shall apply to the following claims on the part of the Buyer:
a. claims to damages based on product liability, on account of personal
injury to life, body or health, or due to breaches of a substantial contractual
obligation, and on account of other damage resulting from a deliberate or
grossly negligent breach of obligations by ourselves or persons we engage
in performing our obligations,
b. claims to reimbursement of expenses pursuant to Section 478 (2) BGB,
and
c. claims due to malicious non-disclosure of a defect.
5. Our claims against the Buyer shall be barred by limitation in accordance
with statutory regulations.
X. Applicable law, Place of performance, Place of jurisdiction
1. The Contract is governed exclusively by the law of Germany. The
provisions of the conflict of laws and the UN Convention on Contracts for
the International Sale of Goods (CISG) of April 11, 1980 (UN Sales
Convention, CISG) shall not apply.
2. The place of performance, also for payments by the Buyer, is Bremen,
Germany.
3. If the Buyer has merchant status (is a Kaufmann), the sole place of
jurisdiction for both parties and for all disputes arising directly or indirectly
General Terms and Conditions of Sales and Delivery for Lima Steel GmbH
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from the contract is Bremen, Germany. However, we have the right to
institute judicial action against the Buyer at the latter’s general place of
jurisdiction.
4. In the case of cross-border deliveries, the exclusive place of jurisdiction
for all disputes arising from the contractual relationship is also Bremen,
Germany. We reserve the right to invoke any other court that has jurisdiction
under the Jurisdiction of Courts and the Enforcement of Judgements
(European Communities) Act of 27 September 1968, or under EU
Regulation 1215/2012.
XI. Severability clause
1. If any condition of this Contract is or becomes invalid or unenforceable,
this shall not affect the validity or enforceability of the remaining conditions
of this Contract.
2. In the case mentioned in XIII. sec.1 the Parties shall replace the invalid
or unenforceable provisions by such provisions that most closely
correspond to the economic purpose of the provisions to be replaced.
XII. Data protection
1. The Buyer acknowledges that, on account of this contract, we store his
personal data for the purposes of automated processing (invoicing,
bookkeeping, etc.). No other personal data besides those contained in this
contract shall be stored.
2. If the Buyer obtains access to personal data for which we are the
responsible party upon conclusion of the contract or in connection with the
provision of the contractual services, the Buyer shall ensure compliance
with the statutory data protection provisions, in particular the obligations
under the General Data Protection Regulation (GDPR). In particular, the
following provisions apply, partly in addition to the legal obligations:
a. Personal data shall be processed exclusively for the purpose of fulfilling
the contractual obligations arising from the contract (“purpose limitation”).
b. The Buyer shall ensure that its employees only have access to personal
data to the extent necessary for the performance of the contractual
obligations under the contract.
c. The Buyer undertakes to take technical and organizational measures in
line with the state of the art in order to guarantee and permanently ensure
a level of protection for personal data that is appropriate to the risk. Upon
our request, the Buyer shall provide evidence of compliance with the
aforementioned technical and organizational measures.
d. A transfer of personal data to third countries is only permitted in
accordance with the provisions of Art. 44 et seq. GDPR.
e. The Buyer shall delete the data without delay as soon as they are no
longer required for the performance of the contract and the statutory
retention periods are complied with.
XIII. Export Control
The Buyer undertakes to comply with all applicable national, supranational
and international export control regulations. The Buyer warrants that the
delivered goods, including replicas thereof, will only be used and will be
passed on to third parties in compliance with all applicable export control
regulations.
XIV. Compliance
1. The Buyer confirms that it has taken notice of our Code of Conduct
available at our website or directly accessible via https://buhlmann-
group.com/downloads/#code-of-conduct and undertakes to observe and
comply with the principles set out in the Code of Conduct in the performance
of its activities and to ensure compliance with them within its supply chain.
2. If the Buyer violates its obligations under Clauses XIV, 1 we shall have
the right to terminate the contract without notice.
Lima Steel GmbH