GTC - General Terms and Conditions of Delivery and Payment

1 General

1.1 The following terms and conditions of delivery and payment shall apply exclusively to all our deliveries and shall only apply to entrepreneurs, legal entities under public law or a special fund under public law. Our terms of delivery and payment shall also apply to all future business relations, even if they are not expressly agreed again. Our terms and conditions shall be deemed accepted upon submission of the order by the customer on the basis of our offer, but no later than 14 days after receipt of the order confirmation without objection.
If our terms and conditions of delivery and payment are opposed to conflicting terms and conditions of the customer, even if they are subsequently included in order confirmations, only our terms and conditions of delivery and payment shall apply even if we do not object to them. We shall only recognise terms and conditions of the customer that conflict with or deviate from our terms and conditions of delivery and payment if we expressly agree to their validity in writing.

1.2 Our offers are subject to change. If an order is to be regarded as an offer, we may accept it within 2 weeks. Contracts shall not be concluded until we have confirmed the order in writing. The same applies to subsidiary agreements of any kind. Subsidiary agreements shall only be valid if confirmed in writing.

1.3 If the customer does not agree with the above handling, he shall immediately - within 7 days - expressly point this out in a special letter.

1.4 In this case, we reserve the right to reject the order of the customer without any claims of any kind being made against us.

1.5 We reserve the property rights and copyrights to all documents provided to the customer in connection with the placing of the order, such as calculations, drawings, etc. These documents may not be made accessible to third parties. These documents may not be made accessible to third parties unless we give the customer our express written consent to do so. If we do not accept the orderer's offer within the period of 1.2, these documents shall be returned to us without delay.

1.6 If the written form is to be observed, it shall also be sufficient to send it by fax.

1.7 References to the applicability of statutory provisions shall only have clarifying significance. Therefore, even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded in these GTC.

2 Prices and terms of payment

2.1 Unless otherwise agreed in writing, our prices shall be ex works (EXW Wölfersheim for extruded PE pipes, coiled pipes and special components/ EXW Mörfelden for the rest of the product range/ in accordance with Incoterms 2000), excluding packaging and plus value added tax at the applicable rate. Costs of packaging, shipping, expenses, customs, taxes, etc. shall be invoiced separately.

2.2 Payment shall be made within 30 days of the invoice date.

2.3 We grant a 2% discount for payment within 10 days of the invoice date.

2.4 The above payment conditions do not apply to repair and rental invoices. These invoices are payable within 10 days of the invoice date without deduction.

2.5 If no payment is made within the payment terms, interest on arrears amounting to 9 percentage points above the base interest rate will be charged. We reserve the right to claim higher damages.

2.6 We are not obliged to accept cheques and bills of exchange. If they are accepted, they shall only be deemed to be payment upon encashment. Collection and discount charges shall be borne by the buyer.

2.7 Acceptance test certificates according to DIN EN 10204-2.2 or 3.1 can be obtained free of charge via our works certificate portal. The manual creation and sending of works certificates is charged at 30 € per order item and the creation of works certificates for special components at cost.

2.8 Transfers from SEPA participating countries (currently the EU countries, Iceland, Liechtenstein, Monaco, Norway and Switzerland) must be made as SEPA transfers.
For SWIFT payments, the originator bears the charges (OUR). In addition to the sender's and recipient's details, DZ Bank AG, Frankfurt am Main, Germany, and the BIC code GENO DE FF must be entered as the intermediary bank in field 56a. In both cases, all payments must be made in EURO.

2.9 For deliveries within the EU, the customer undertakes to confirm the arrival of the goods against our delivery notes (confirmation of arrival). This can also be done electronically after prior agreement. If the customer does not comply with this obligation before the expiry of 3 months after delivery, we shall be entitled to charge the VAT currently applicable in Germany. It is then the customer's responsibility to have the VAT paid refunded in the course of a VAT refund procedure via his tax authorities.

3 Delivery and dispatch

3.1 Stated delivery times are non-binding for us unless they have been expressly guaranteed.

3.2 Compliance with the delivery time stated by us shall be subject to the clarification of all technical questions as well as the timely and proper fulfilment of the customer's obligations. We reserve the right to plead non-performance of the contract.

3.3 Insofar as a delivery time has been bindingly guaranteed, a delivery obligation on our part shall not apply in cases of force majeure, official measures, operational disruptions on our part or on the part of our suppliers, including in the event of non-delivery for whatever reason on the part of the suppliers. The buyer shall be entitled to withdraw from the contract after having set a grace period of at least 2 weeks in writing.

3.4 If the buyer is in default of acceptance or culpably violates other obligations to cooperate, we are entitled to be compensated for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims. If the above conditions are met, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the time when the latter is in default of acceptance or debtor's delay.

3.5 Further legal claims and rights of the purchaser due to a delay in delivery remain unaffected.

3.6 Shipment shall be at the risk of the customer. Transport and other insurances shall only be taken out upon request and shall be borne by the customer. The risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon dispatch to the customer, at the latest upon leaving the factory/warehouse. This shall apply irrespective of whether the goods are dispatched from the place of performance or who bears the freight costs.

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 1,500.00 EUR free of charge within Germany. We shall deliver PE-piping (extruded, solid walled up to a diameter of 800 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 250.00 EUR net value of goods, we shall charge 25.00 EUR net mark-up for small-volume purchases.

3.8 If we take back goods, the returned goods must be in their original packaging, in perfect, resalable condition, i.e. neither dirty nor scratched and not older than one year. For the return, we charge restocking costs of at least 25% of the value of the goods and a processing fee of 25 euros. The return delivery must be made free to our warehouse after agreement of a date, stating our order or invoice number. Pipes and moulded and segmented parts made of pipes, goods no longer listed in the current price list as well as returned goods with a net value of less than EUR 150.00 are generally excluded from return.

4. retention of title

4.1 All goods delivered by us shall remain our property until payment of all our claims arising from the business relationship with the customer. This shall also apply if the purchase price has been paid for certain deliveries of goods designated by the customer. In the case of a current account, the reserved property shall be deemed to be security for our balance claims. This shall also apply to all future deliveries, even if we do not always expressly invoke this. In the event of a breach of contract by the customer, in particular in the event of default in payment, we shall be entitled, after setting a reasonable deadline, to take back the delivery item and the customer shall be obliged to surrender it. Our taking back of the delivery item always constitutes a withdrawal from the contract. After taking back the delivery item, we shall be entitled to realise it; the realisation proceeds shall be set off against the liabilities of the customer - less reasonable realisation costs.

4.2 Processing or transformation shall always be carried out for us as manufacturer, but without any obligation for us. Value-increasing processing and/or treatment of goods subject to retention of title shall not entitle the customer to compensation claims against us.

4.3 If the goods subject to retention of title are mixed or combined with other objects so that our ownership expires, it is already agreed now that our ownership of the uniform object shall pass to us in proportion to the value (invoice value). The customer shall keep the (co-) ownership for us free of charge.
If the mixing takes place in such a way that the item of the customer is to be regarded as the main item, it shall be deemed agreed that the customer shall transfer co-ownership to us on a pro rata basis and shall keep the sole ownership or co-ownership thus created in safe custody for us. In order to secure our claim against the customer, the customer also assigns to us such claims against a third party which accrue to him through the combination of the reserved goods with a property; we accept this assignment already now.

4.4 The customer shall be entitled to process and sell the goods subject to retention of title (reserved goods) in the ordinary course of business as long as he is not in default. The customer is prohibited from pledging the goods subject to retention of title or assigning them as security. Claims of the customer against third parties with regard to the goods subject to retention of title, irrespective of the legal grounds, shall be assigned to us here and now in the amount of the final invoice amount agreed with us (including valid value added tax). In the event of processing, the assignment shall be in the amount of the proportional invoice value.
We revocably authorise the customer to collect the claims assigned to us on his own account in his own name. Our authority to collect the claim ourselves shall remain unaffected. However, we shall not collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, has not filed for insolvency proceedings or suspended payments. Upon our request, the customer shall disclose the assignment and the retention of title and provide us with the necessary information and documents. In addition, the customer shall be obliged to do so even without being requested to do so if a third party in turn makes the assignment of the customer's claims against it dependent on its approval.

4.5 The ordering party is obliged to bring our ownership claim to the attention of any interested third party as long as it legally exists and to notify us immediately in writing, sending a copy of the attachment protocol, if an attachment is to be made by a third party so that we can bring an action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss.

4.6 We undertake to release the securities to which we are entitled at the request of the customer at our discretion to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%. Notwithstanding the foregoing, the transfer of ownership to the customer shall only take place after final payment of the full value of the goods and any ancillary costs, such as freight and insurance, or, in the case of a bill of exchange credit, after the bill of exchange has been honoured. We do not guarantee that in the event of non-acceptance or non-redemption of the bill of exchange, it will be protested in due time.
4.7 We are entitled at any time to disclose the assignment of claims to third parties.
4.8 Irrespective of the above assignment of claims (extended reservation of title), the customer pledges to us his claim against third parties in respect of the reserved goods, irrespective of the legal grounds. We accept the pledge. The customer authorises and empowers us to notify third parties of the pledge.

5 Warranty and notice of defects

5.1 The purchaser's warranty rights presuppose that he has duly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). Should complaints arise despite the greatest attention, obvious defects must be asserted immediately, at the latest however within 14 days of receipt of the goods, concealed defects immediately after their discovery, otherwise the goods shall be deemed to have been approved. The date of receipt of the notice of defect by us shall be decisive in this respect.

5.2 Claims for defects shall become statute-barred 12 months after delivery of the goods supplied by us to our customer. The above provisions shall not apply insofar as the German Civil Code (BGB) mandatorily prescribes longer periods for buildings and objects for buildings, recourse claims and construction defects. The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected.
Our consent must be obtained before any goods are returned.
If, despite due diligence, the delivered goods show a defect which was already present at the time of the transfer of risk, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We shall always be given the opportunity to remedy the defect within a reasonable period of time.

5.3 If the subsequent performance fails, the customer may - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration. The customer cannot demand compensation for futile expenses.

5.4 Claims for defects shall not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear and in the case of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or due to special external influences which are not assumed under the contract. If improper repair work or modifications are carried out by the customer or third parties, there shall also be no claims for defects for these and the resulting consequences.

5.5 Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, shall be excluded insofar as the expenses increase because the goods delivered by us have subsequently been taken to a place other than the customer's place of business, unless the transfer is in accordance with their intended use.

5.6 The purchaser's right of recourse against us shall only exist to the extent that the purchaser has not entered into any agreements with its customer that go beyond the statutory mandatory claims for defects. Furthermore, clause 5.5 shall apply accordingly to the scope of the purchaser's right of recourse against the supplier.

5.7 Further or other claims of the customer against us and our vicarious agents due to a defect than those regulated here in clause 5. are excluded.

5.8 In the event of fraudulent concealment of a defect or in the event of the assumption of a guarantee for the quality of the goods at the time of the transfer of risk (declaration by the seller that the object of purchase has a certain quality at the time of the transfer of risk and that the seller intends to be responsible for all consequences of its absence irrespective of fault), the rights of the purchaser shall be governed exclusively by the statutory provisions.

6 Limitation of liability

6.1 We shall only be liable for damages - on whatever legal grounds - a) in the event of intent, b) in the event of gross negligence, c) in the event of culpable injury to life, limb or health, d) in the event of defects which we have fraudulently concealed or the absence of which we have guaranteed, e) in accordance with the mandatory rules of product liability.

6.2 In the event of culpable breach of material contractual obligations, we shall also be liable in the event of slight negligence, but limited to the reasonably foreseeable damage typical for the contract.

6.3 Further claims are excluded.

7 Right of retention and right of set-off

The customer shall only have the right of set-off if his counterclaims have been legally established, are undisputed or have been recognised by us. The customer is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.

8. final provisions

8.1 This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

8.2 Should individual provisions of these Terms and Conditions of Delivery and Payment be or become invalid or contain a loophole, the remaining provisions shall remain unaffected.

8.3 Place of performance is Mörfelden-Walldorf.

8.4 The exclusive place of jurisdiction for all disputes arising from this contract is Frankfurt am Main/Germany.

Status: 15.11.2021, FRANK GmbH, Mörfelden-Walldorf


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