General conditions of delivery and terms of payment
ENGELMANN Drahtseilfabrik GmbH
30179 Hannover, Germany
T +49 511 63983-0
F +49 511 63983-99
Scope of application
1. These conditions of sale apply to companies, legal entities under public law and special funds under public law.
Our deliveries and services are provided exclusively on the basis of the terms and conditions below.
Any terms and conditions of our partner companies not expressly acknowledged by us do not apply.
2. The contractual parties shall confirm all verbal agreements in detail and in writing without delay.
3. Orders shall not become binding until our order confirmation is issued.
4. Unless expressly declared by us to be binding, the information and illustrations in our brochures and catalogues are approximate values customary in the industry.
Long-term and call-off contracts, price adjustment
5. Open-end contracts can be terminated with a notice period of 3 months.
6. If a considerable change to the cost of labour, materials or energy occurs during a long-term contract (contracts with a term of more than 6 months and open-end contracts), each contractual party is entitled to request a reasonable adjustment to the price, taking these factors into account.
7. If no binding order quantity has been agreed, we shall base our calculations on the expected, non-binding order quantity (target quantity) from the other party for a specific period of time.
If the other party orders less than the target quantity, we are entitled to increase the unit price accordingly. If the other party orders more than the target quantity, we shall reduce the unit price accordingly, provided that the party has notified us of the increase in demand at least 3 months before delivery.
8. Unless otherwise agreed, we must be informed by means of a call-forward notice of binding quantities for call-off delivery contracts at least 2 months before the delivery date.
Additional costs that are caused by the other party due to late call-forward notices or subsequent changes to the notice in terms of time or quantity shall be borne by the other party. Our calculation for this is definitive.
9. Each contractual party shall only use the documents (including samples, models and data) and knowledge that they receive from the business relationship for the jointly pursued purposes, and shall maintain confidentiality with the same level of diligence as exercised for their own documents and knowledge, if these are designated by the other contractual party as confidential or if they have an obvious interest in maintaining their confidentiality.
This obligation shall commence upon initial receipt of the documents or knowledge and ends 36 months after the end of the business relationship.
10. The obligation shall not apply to documents and knowledge that are generally known or which were already known to the contractual party upon receipt when they were not bound by confidentiality, or which are subsequently communicated by a third party entitled to pass them on, or which are developed by the receiving contractual party without the exploitation of confidential documents or knowledge belonging to the other contractual party.
Drawings and specifications
11. If one contractual party provides the other with drawings or technical documents regarding the goods to be delivered or their manufacture, these drawings and technical documents shall remain the property of the contractual party that provided them.
Samples and production equipment
12. Unless otherwise agreed, the cost of manufacturing samples and production equipment (tools, moulds, templates, etc.) shall be invoiced separately from the goods to be supplied. This also applies to production equipment which has to be replaced due to wear.
13. The cost of maintenance and appropriate storage as well as the risk of damage to or destruction of the production equipment shall be borne by us.
14. If, during the period when the samples or production equipment are being manufactured, the other party discontinues or terminates the collaboration, all manufacturing costs incurred up until that time shall be borne by them.
15. The production equipment shall remain in our possession at least until completion of the delivery agreement, even if the other party has paid for it. Thereafter, the other party is entitled to demand the surrender of the production equipment, if a mutually agreed ruling has been reached regarding the time of surrender and the other party has fulfilled their contractual obligations.
16. We shall keep the production equipment free of charge for three years after the last delivery to the other party. We shall then ask the other party in writing to state, within 6 weeks, directions for further use. Our duty to keep the production equipment shall cease if, within these 6 weeks, no directions have been received or no new order is placed.
17. Purchaser-specific production equipment may be used by us for deliveries to third parties only with the prior written permission of the other party.
18. Our prices are in euros and do not include VAT, packing, freight, carriage and insurance.
Terms and conditions of payment
19. All invoices are due for payment within 30 days of the invoice date.
20. If we have indisputably delivered partly defective goods, the other party is nevertheless obliged to pay for the fault-free part, unless they do not want the part to be delivered. Otherwise, the other party may only offset against legally enforceable or undisputed counterclaims.
21. If the payment deadline is exceeded, we are entitled to charge interest on arrears at the rate which the bank sets for credit in current accounts, but at least 8 percentage points above the respective base interest rate set by the European Central Bank.
22. In case of a default in payment, we may, after notifying the other party in writing, suspend fulfilment of our obligations until payment is received.
23. Bills of exchange and cheques will only be accepted by agreement and only if they are honoured, and only on the condition that they are discountable. Discount charges will be applied from the date at which the invoice amount becomes due for payment. No guarantee can be made for the timely presentation of the bill of exchange and cheque, or for raising a bill protest.
24. If, after conclusion of the contract, it becomes evident that our payment claim is put at risk by the other party’s lack of solvency, we may refuse to provide services and set the party an appropriate period of time within which payment must be made contemporaneously for the delivery or collateral security must be provided. If the other party refuses or the term expires without appropriate payment being made, we are entitled to withdraw from the contract and demand compensation.
25. Unless otherwise agreed, we shall deliver “ex works”. Notification by us that the goods are ready for despatch or collection shall be decisive for adherence to the delivery date or the period of delivery.
26. The period of delivery shall commence when our order confirmation is sent and shall be extended as appropriate if the conditions set out in section 55 apply.
27. Partial deliveries are permissible to a reasonable extent. These will be invoiced separately.
28. Excess or incomplete deliveries caused by production shall be permitted within a margin of 10 per cent of the total order quantity. The total price shall change accordingly.
Dispatch and transfer of risk
29. Goods notified as being ready for despatch must be accepted by the other party immediately. Otherwise, we are entitled, at our discretion, to despatch or store them at the expense and risk of the other party.
30. Unless specifically agreed otherwise, we shall choose the means and form of transport.
31. The risk shall pass to the other party when the goods are handed over to the railway company, the forwarding agent or the carrier, or when storage begins, but at the latest when the goods leave the factory or warehouse, even if we have undertaken to make the delivery.
Delay in delivery
32. If we can foresee that it will not be possible to deliver the goods within the delivery period, we shall notify the other party of this in writing without delay, explain the reasons and, as far as possible, specify the expected date and time of delivery.
33. If delivery is delayed due to any of the circumstances set out in section 55, or due to an act or omission of the party, an extension of the delivery period appropriate to the circumstances shall be granted.
34. The other party is only entitled to withdraw from the contract if we are responsible for the non-adherence to the delivery date and they have set us an appropriate extension period which has expired without delivery being made.
Reservation of ownership
35. We retain ownership of the delivered goods until all claims arising from the business relationship with the other party have been fulfilled.
36. The other party is entitled to sell these goods in the ordinary course of business, if they fulfil their obligations arising from the business relationship with us in good time. However, the party may neither pledge the goods subject to reservation of ownership nor transfer them as collateral security. They shall safeguard our rights against the event that the goods subject to reservation of ownership are resold on credit.
37. If the other party breaches its obligations, particularly through delayed payment, we are entitled to withdraw from the agreement and take back the goods after expiry of an appropriate period of time for the other party to comply; this shall not affect legal provisions stipulating that a deadline does not need to be fixed. The other party is obliged to surrender the goods.
We are entitled to withdraw from the agreement if an application is made to open insolvency proceedings against assets of the other party.
38. With immediate effect, the other party shall assign to us all claims and rights arising out of the sale or any lease, for which we may have given the party permission, of goods over which we have rights of ownership. We herewith accept the transfer of these claims and rights.
39. Any treatment or processing of the goods subject to reservation of ownership shall always be carried out by the other party. If the goods subject to reservation of ownership are processed or irrevocably combined with other items not belonging to us, we shall acquire joint ownership of the new object in a ratio of the invoice value of the goods subject to reservation of ownership to that of the other processed or combined items at the time of processing or combining.
If our goods are joined or irrevocably combined with other moveable objects to make a unified item, and if the other item can be regarded as the principle item, the other party shall transfer joint ownership to us proportionately to the extent that the principal item belongs to them. The other party shall retain the goods owned or co-owned by us on our behalf. The same applies to those items created by processing or combining as for the goods subject to reservation of ownership.
40. The other party shall notify us without delay of any levy of execution by third parties against the goods subject to reservation of ownership, the claims assigned to us or other collateral securities, and shall hand over the documents necessary for intervention. This also applies to infringements of any other kind.
41. If the value of the existing collateral securities exceeds the total secured claims by more than 20 per cent, we are obliged, at the other party’s request, to release collateral securities of our choosing in that amount.
42. The quality of the goods is determined solely by the agreed technical delivery requirements. If we must deliver goods in accordance with the drawings, specifications, samples, etc. of the other party, the other party shall accept responsibility for the goods being suitable for the intended purpose. The time at which the risk is transferred in accordance with section 31 is definitive for the contractual condition of the goods.
43. We shall accept no responsibility for any material defects resulting from unsuitable or incorrect use, defective assembly or commissioning by the other party or third parties, normal wear and tear or defective or negligent handling or for the consequences of inappropriate changes or repairs made by the other party or third parties without our approval. The same applies to defects which only slightly diminish the value or suitability of the goods for purpose.
44. Unless otherwise agreed, the statutory limitation for claims arising from material defects shall be determined by the law.
45. If acceptance of the goods or initial type testing has been agreed, complaints lodged regarding defects which the other party could have identified by means of a careful acceptance procedure or initial type testing shall be excluded.
46. We must be given the opportunity to identify the defect for which a complaint has been lodged. Rejected goods must be returned to us immediately upon request; we shall bear the cost of transport, if the notice of defect is justified. If the other party does not fulfil these obligations or makes changes to the goods that have already been rejected without our approval, they shall forfeit any right to claims for material defects
47. If the notice of defect is justified and issued within the time limit, we shall, at our discretion, repair the rejected goods or supply a fault-free replacement.
48. If we do not fulfil these obligations at all or do not fulfil them within an appropriate period of time and in accordance with the contract, the other party may set us a final time limit in writing, by the end of which we must fulfil our obligations. If this period expires without the obligations being fulfilled, the other party may demand a reduction of the price, withdraw from the contract, or undertake the necessary repairs themselves or commission a third party to carry out the repairs at our expense and risk. A reimbursement of expenses is excluded if the costs increase because the goods have been taken to another place after we delivered them, unless this is in keeping with the correct use of the goods.
49. Statutory recourse claims by the other party against us can only arise if the party has made no agreements with their customers beyond the statutory claims for defects. The last sentence of section 48 also applies with regard to the scope of the recourse claims.
Other claims, liability
50. Unless otherwise stated in the following, other and further claims by the other party against us are excluded. This applies in particular to claims for compensation on the grounds of infringement of obligations arising from the relationship of debenture and from tort. We shall therefore not be liable for damage which is not sustained to the delivered goods themselves. Above all we shall not be liable for lost profit or other loss of assets by the other party.
51. The abovementioned limitations on liability shall not apply in cases of intent, gross negligence by our legal representatives or senior employees, or in the case of culpable breach of essential contractual obligations. In the event of culpable breach of essential contractual obligations we shall only be liable for damage which is reasonably foreseeable in connection with contracts of this type, except in cases of intent or gross negligence by our legal representatives or senior employees.
52. The limitations on liability shall also not apply in those cases in which, according to the Product Liability Act, liability shall exist for personal injury or damage to objects of private use in the case of defects in the delivered goods. This shall also not apply in cases of death, personal injury or impaired health, and the absence of guaranteed qualities, if and in so far as the purpose of the warranty was to safeguard the other party against damage not caused to the delivered goods themselves.
53. Exclusions and limitations on our liability shall also apply to the personal liability of our clerical staff, employees, colleagues, legal representatives, assistants and agents.
54. Legal requirements with regard to the burden of proof shall remain unaffected by this.
55. Force majeure, industrial disputes, public disturbances, measures taken by local authorities, failure to deliver on the part of our suppliers and other unforeseeable, unavoidable and serious events release the contractual parties from their obligations for the duration of the disturbances and to the extent of their effect. This also applies if these events occur at a time when the contractual party concerned is in default, unless the party has caused the default by intent or gross negligence. The contractual parties shall, as far as is reasonably possible, provide the necessary information without delay and in good faith adapt their obligations to the changed circumstances.
Place of fulfilment, place of jurisdiction and applicable law
56. Unless otherwise stated in the order confirmation, our registered office shall be the place of fulfilment.
57. The place of jurisdiction for any legal disputes, including those in respect of proceedings concerning bills of exchange or cheques, shall be our registered office. We are also entitled to take legal action at the other party’s registered office.
58. The contractual relationship is governed solely by the law of the Federal Republic of Germany.
The United Nations Convention of 11 April 1980 on Contracts for the Sale of Goods (CISG – “Vienna Sales Convention”) shall not apply.