1.1 Exclusively the following Terms and Conditions of Delivery and Payment shall govern our deliveries and apply to entrepreneurs, legal entities under public law or a separate trust asset under public law.
The present Terms and Conditions shall also apply to all future business relations, even if these have not been explicitly set up again.
Upon placement of the order by the Customer on the basis of our quotation, at the latest however 14 days after the non-contested receipt of the order confirmation, the present Terms and Conditions shall be deemed accepted.
Should the present Terms and Conditions conflict with the terms and conditions of the Customer, even if these feature subsequently in order confirmations, solely our Terms and Conditions shall apply, even failing our explicit contradiction to those of the Customer. We shall only recognise conflicting terms and conditions of the Customer or such that differ from the present Terms and Conditions, if we explicitly notify such in written form.
1.2 Our quotations shall be subject to change. Where an order is to be considered a quotation, we shall be able to accept it within a period of 2 weeks. Contracts shall only be deemed formed upon our written confirmation of order. The same shall apply to subsidiary agreements of any nature. Subsidiary agreements shall only be operative upon written confirmation.
1.3 Should the Customer not agree with the above-mentioned mode of handling, it shall give immediate and explicit separate notification thereof - within 7 days.
1.4 For this event, we shall retain the right to refuse the order of the Customer, without it being possible to assert any claims whatsoever against us.
1.5 We shall retain all title and copyrights to documents, such as calculations, drawings etc. that are handed over to the Customer upon order placement. These documents shall not be rendered accessible to third parties, unless we give the Customer our express written consent to do so. Unless we accept the offer of the Customer within the deadline specified in 1.2, these documents shall be returned to us immediately.
1.6 Where the written form is required, telefax notification shall also suffice.
2.1 Unless otherwise agreed in written form, our prices shall be ex-works (FCA Wölfersheim for extruded PE piping, spiral piping and special construction parts/FCA Mörfelden for the remaining product programme/subject to Incoterms 2010), excluding packaging and subject to the addition of the value added tax as required by law. Costs of packaging, dispatch, expenses, customs duties, taxation etc. shall be billed separately.
2.2 Payment shall be due within 30 days of the date of invoice.
2.3 Upon payment within 10 days of the date of invoice, we shall allow 2% discount.
2.4 The above-specified Terms and Conditions of Payment shall not apply to repair and leasing bills. These invoices shall be due for payment without deduction within 10 days of the date of invoice.
2.5 Failing payment within the payment term, interest shall be charged at 9% in excess of the basic interest rate. The right to assert greater damages shall be retained.
2.6 The right shall be retained to amend prices appropriately in the event of increases or decreases in costs after the entering of contract, especially where such increases or decreases are occasioned by collective wage agreements or by changes in the costs of sales and delivery. We shall provide the orderer with evidence of such changes on request.
2.7 We shall not be bound to accept cheques and bills of exchange. If they are accepted, they shall only be deemed as payment upon their redemption. Costs of redemption and discount charges shall be borne by the purchaser.
2.8 Acceptance certificates according to DIN EN 10204-3.1 for standard products up to d 500 mm shall be charged at 25.00 EUR. For products > d 500 as well as special parts shall be charged according to expenses.
2.9 Payments from SEPA accredited countries (currently European Community, Iceland, Liechtenstein, Monaco, Norway and Switzerland) have to be carried out via SEPA transfer.
The client meets the costs for SWIFT payments (OUR). In addition to the data of client and recipient, our intermediary bank has to be mentioned in field 56a: DZ Bank AG, Frankfurt am Main, Germany, BIC-Code GENO DEFF.
2.10 For deliveries within the EC, the customer is obliged to confirm the entry of the goods on a form with our delivery papers (entry certificate). By prior arrangement, this can also be handled electronically.
In case the customer does not confirm within 3 months after delivery, we will charge the actual German VAT additionally. The customer has to handle a reimbursement of this amount with his local tax office.
In both cases, all payments have to be carried out in EURO.
3.1 We shall not be bound to our notification of delivery time, unless we have given our explicit assurance.
3.2 Compliance with the delivery time we specify shall require clarification of all technical issues and the Customer‘s due and proper satisfaction of obligations. The right to plead non-performance of contract shall be retained.
3.3 Where we have assured a delivery time as binding, our duty to deliver shall nevertheless cease to apply in cases of force majeure, measures taken by the authorities, operational disruption with us or with our suppliers, as well as always in the event of a failure to supply on the part of our suppliers. The purchaser shall be entitled to withdraw from the contract after having set a period of at least 2 weeks in written form as extension of the original term.
3.4 Should the Customer delay in acceptance or fault through violating other duties to involvement, we shall be entitled to compensation for the damages we thus incur, including any extra expenditure thus generated. The right to claim for further-reaching damages shall be retained. Where the above-specified situation is given, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the Customer the moment the Customer defaults in acceptance or payment.
3.5 Further-reaching claims and rights of the Customer derived from default in delivery shall remain unaffected.
3.6 Dispatch shall take place at the risk of the orderer. Transport and other insurance coverage shall only be supplied at the request and for the account of the orderer. The risk of accidental loss or accidental deterioration of goods shall pass to the Customer upon dispatch of the consignment, at the latest upon their departure from the works/warehouse. This shall apply irrespective of whether the consignment is dispatched from the place of performance or irrespective of who bears the costs of freight.
3.7 We shall deliver pre-forms (injection moulded, formed from piping, segmented), fittings and pressure-proof puddle flanges (Mauerkragen) upwards of a net value of 1,000.00 EUR free of charge within Germany. We shall deliver PE-piping (extruded, solid walled up to a diameter of 630 mm) upwards of a net value of goods of 5,000.00 EUR free of charge within Germany. Other deliveries shall generally be carried out freight collect, for partly-packed pallets we charge a lump-sum of EUR 55.00 net. For orders less than 125.00 EUR net value of goods, we shall charge 12.00 EURO net mark-up for small-volume purchases.
3.8 When goods are returned to us, said returned goods shall be in their original packaging and in a perfect re-sellable condition, i.e. neither soiled nor scratched and no older than one year. With such returns, we shall charge at least 25% of the value of the goods for restorage and a general processing fee of € 25,--. The return delivery shall be free of charge and subject to coordination of date with us and shall specify our order and invoice number. The return of piping and pre-form pipe moulds and segments and the return of goods not listed anymore in the current price list as well as return of goods below a net value of 150.- Euro shall be ruled out completely from any return.
4.1 We shall retain title to all goods we deliver until payment of all our claims due to us from the business relations with the Customer placing the order. This shall also apply if the purchase price for certain consignments specified by the customer placing the order has already been paid for. With open accounts, the items to which ownership is retained shall serve as security for our outstanding claims. This shall also apply for all future deliveries, even if we do not always make explicit reference thereto. We shall be entitled having set an appropriate deadline to take back the purchased item in the event of violation of contract on the part of the Customer placing the order. The Customer shall be required to release the item. Such taking back of the object of delivery shall at all times constitute withdrawal from contract on our part. We shall be entitled to sell such objects as have been taken back. The proceeds of any such sale shall be set off against the liabilities of the orderer less appropriate costs of sale.
4.2 Any processing or reforming of goods shall always be carried out for us as manufacturer, yet without any obligation on our part. Any handling or processing of goods to which we retain title that augments the value of said goods shall not entitle the Customer to any compensatory claims against us.
4.3 Should the goods to which we retain title be mixed or compounded with other items, so that our title thereto ceases to be valid, it is herewith agreed that our title to the item in question shall pass to us proportionately (value of the invoice). The Customer placing the order shall act as custodian of our (co)-ownership free of charge.
Should the compounding be so effected that the item of the Customer is to be seen as the principle item, it is agreed that the Customer shall pass co-ownership to us proportionately and serves as custodian for the exclusive ownership or co-ownership for us. To secure our claim in respect of the Customer, the Customer shall assign to us those claims it derives from the compounding of the goods with landed property in respect to a third party; we herewith accept this assignment.
4.4 The Customer placing the order shall be entitled to process and sell the goods to which we retain title (conditionally sold goods) in conventional business transactions as long as the Customer is not in default. The Customer shall not be permitted to pledge the goods or transfer title thereto for security. Third party claims of the Customer for the conditionally sold items, based on whatever legal reason whatsoever, are now assigned to us to the extent of the final invoice price agreed upon (including applicable value added tax). In the event of processing, assignment shall be proportional to the amount of the invoice. Until further notice, we herewith authorise the Customer placing the order to collect the claims assigned to us for its own account in its own name. Our authority to collect the claims ourselves shall not be affected hereby. We shall, however, not collect the claims as long as the Customer continues to meet his obligations to payment from the collected proceeds and in particular for as long as the Customer has not filed for insolvency proceedings or has ceased payment. At our request, the Customer shall disclose the assignment and the retention of title and provide us with the necessary information and documents. The Customer shall also be bound to do so, without any specific request being made, if a third party for its part renders the assignment of the Customer‘s claims dependent upon its own approval.
4.5 The Customer shall be obliged to advise any interested third party of our claim to title, for as long as this still lawfully exists, and to inform us by providing us with a copy of the attachment protocol should a third party have levied execution against the goods in order to enable us to take legal action pursuant to § 771 German Civil Procedure Code (ZPO). Insofar as the third party is not able to reimburse us for the cost of in-court and out-of-court proceedings pursuant to § 771 ZPO, the Customer shall be liable for such a shortfall.
4.6 We shall be obliged to choose to release the title retained at the request of the Customer, where the value continuously exceeds the claims by 10% and more. Notwithstanding this, the title shall only pass to the Customer after the full value of the goods has been paid for, as well as any ancillary costs, such as freight and insurance and, with bills of exchange, upon their redemption. We shall not guarantee that in cases of non-acceptance or non-encashment of the bill of exchange, protest shall be filed in good time.
4.7 We shall be entitled at all times to disclose the assignment of claims to third parties.
4.8 Irrespective of the above-specified assignment of claim (extended retention to title), the Customer shall pledge its third party claims to us in respect of the conditionally sold goods, for whatever legal reason whatsoever. We accept the attachment. The Customer shall authorise and empower us to notify third parties of said attachment.
5.1 The Customer‘s rights of warranty shall require that the Customer has complied with all its responsibilities to inspect and give notification of defects properly subject to § 377 of German Commercial Code (HGB). Should there be reason for complaints, despite the greatest of care, obvious defects shall be asserted immediately, within 14 days at the latest after the receipt of the goods, and concealed defects immediately upon their discovery, otherwise the goods shall be considered approved. The determinant factor shall be the date on which notification of defects is received.
5.2 Claims relating to defects shall become statute-barred 12 months after our delivery of the goods with our Customer. The above-specified provisions shall not apply where the BGB [German Civil Code] stipulates longer mandatory periods for construction works and items for construction sites, rights of recourse and construction defects. This shall be without prejudice to any period of limitation in respect of delivery recourse pursuant to §§ 478, 479 German Civil Code (BGB). Any return of the goods shall be subject to our consent.
Should, despite the care applied, the delivered goods feature a defect, which already existed at the time the risk was passed, we shall be free to either provide remedy or replacement, providing the defect was notified in proper time. We shall always be given the opportunity to provide subsequent satisfaction within an appropriate interval of time.
5.3 Should subsequent satisfaction prove to be a failure, the Customer shall be entitled to rescind the contract - notwithstanding any claims to compensation - or to reduce payment. The Customer shall not be entitled to any reimbursement of expenditure that was in vain.
5.4 Defect-based claims shall not exist, where the goods diverge only minimally from the quality agreed upon, where usability of the goods is only impaired minimally, in cases of natural wear and tear or in cases of damages generated after transfer of risk as a result of misuse or negligent treatment, excessive strain, unsuitable operational media, defective construction work, unsuitable construction ground or from specific outside impact, all of which were not presumed under the contract. Should the Customer or third parties improperly carry out repairs or amendments, no defect-based claims shall be generated from the consequences thereof.
5.5 Claims of the Customer for expenditure incurred for purposes of subsequent satisfaction of performance, particularly costs of transport, infrastructure, labour and material, shall be ruled out, where expenditure increases because the goods we deliver have been subsequently brought to a location other than the Customer‘s branch premises, unless such relocation reflects the use for which the goods were intended.
5.6 The Customer‘s rights of recourse against us shall only be given providing the Customer has not reached any agreement with its own customer in excess of the defect-based claims as defined by law. In respect of the scope of the Customer‘s rights to recourse against the supplier, No. 5.5 shall also apply accordingly.
5.7 Any further-reaching or other defect-based claims of the Customer against us and our vicarious agents shall be ruled out.
5.8 In the event of a defect or in the case a certain quality of the goods is guaranteed at the time the risk was passed (declaration of the seller that at the time the risk is passed the item purchased has a particular quality and that, irrespective of fault, the seller intends to vouch for all consequences from said lack), the rights of the Customer shall solely be subject to the provisions set forth by law.
6.1 We shall only be liable for damages - whatever their legal justification - in cases of a) wilful intent, b) gross negligence, c) fault with injury to life, body, health, d) in cases of defects fraudulently concealed by ourselves or guaranteed by ourselves not to occur, e) subject to the mandatory rulings of product liability.
6.2 In the event of the negligent violation of major contractual duties, we shall also be liable in cases of slight negligence, yet restricted to a reasonable forecast of damages that are typical for the contract.
6.3 Any other further claims shall be ruled out.
The customer shall only be entitled to offset if its counterclaims have been recognised by declaratory judgement, are undisputed or have been recognised by us. The Customer shall only be entitled to exercise a right of retention providing its counterclaim is derived from the same contractual relations and the defect has been acknowledged by us, at most up until subsequent remedy has been provided or up until subsequent delivery has been made.
8.1 The present Terms and Conditions of Delivery and Payment and all legal relations between the Parties shall be subject to the laws of the Federal Republic of Germany to the exclusion of the UN Convention on the International Sale of Goods (CISG).
8.2 Should individual provisions of these Terms and Conditions of Delivery and Payment be or become inoperative or feature an omission, the remaining provisions shall not be affected hereby.
8.3 Place of performance shall be Mörfelden-Walldorf/Germany.
8.4 For all disputes arising from the present Contract, the venue shall be exclusively Frankfurt am Main/Germany.
Status: 17.06.2016, FRANK GmbH, Mörfelden-Walldorf (Germany)