General Terms and Conditions of EuroBrücke GmbH

As of: August 1, 2012

 

1.     General Provisions

1.        Our deliveries and services are provided exclusively on the basis of the following General Terms and Conditions. The purchaser’s terms and conditions of purchase are hereby rejected. Other terms and conditions are only binding for us if we have accepted them in writing. Our terms and conditions also apply if we carry out the delivery to the purchaser without reservation or do not expressly object to them, despite being aware of conflicting or deviating terms and conditions of the purchaser.

2.        Our offers are subject to change without notice. Contracts and other agreements only become binding upon our written confirmation.

2.     Prices, Terms of Payment

1.        Unless otherwise agreed, our prices are ex works or ex warehouse plus freight, VAT and import duties, as well as fees and other public charges.

2.        Payment must be made without any discount in such a way that we have access to the amount on the due date. The purchaser shall bear the costs of the payment transaction.

3.        After the due date, we are entitled to charge default interest at a rate of 8 percentage points above the applicable base interest rate per annum. Should we be required to charge higher current account interest through our bank, we are entitled to pass this interest on to the customer. The assertion of further damages in the event of default remains unaffected.

4.        The customer may only offset undisputed or legally established claims. The customer is only entitled to rights of retention to the extent that they are based on the same contractual relationship.

5.        If we are obligated to perform in advance under a mutual contract, we may refuse to perform the service incumbent upon us if, after conclusion of the contract, it becomes apparent that our claim to consideration is jeopardized by the customer’s lack of performance. We may then set the customer a reasonable deadline within which the customer must provide consideration in return for our performance or, as agreed, provide security. After the expiration of this deadline without success, we are entitled to withdraw from the contract. To the extent that we have already provided our services, we may declare any resulting claims not yet due due immediately. Alternatively, we are also entitled to withdraw from the contract.

6.        We are also entitled to declare claims arising from the legal relationship due early if the customer is in default of payment of at least 25% of its total liabilities to us for more than six weeks.

7.        Furthermore, we are entitled to demand advance payment of the entire purchase price for future purchase contracts following a default by the customer. If the customer fails to pay the purchase price in advance within the agreed deadlines or fails to provide appropriate security, which requires prior agreement, in the amount of the purchase price, we may withdraw from the purchase contract without this giving rise to any claims by the customer. Rather, in this case, after we have declared withdrawal, we may assert a claim for damages against the customer.

8.        The statutory provisions regarding default in payment remain unaffected.

3.     Dimensions, Weights, Quality

Deviations from dimensions, weights, quality, and other specifications are permitted according to DIN, EN, or if this is established practice. Other deviations require a special agreement.

4.     Shipping and Transfer of Risk

1.        The route and means of transport, as well as the designation of the freight forwarder or carrier, are determined by us unless otherwise agreed.

2.        Notified delivery goods must be accepted by the customer immediately. Otherwise, we are entitled to store them at the customer’s expense and risk.

3.        Upon handover of the goods to a freight forwarder or carrier or upon collection of the goods on behalf of the recipient, but no later than upon leaving the delivery plant or warehouse, the risk, including the risk of seizure of the goods, passes to the customer for all transactions, including direct, FOB, CIF, carriage paid, and free-to-door deliveries. We will only insure the shipment against insurable risks upon the customer’s instruction and expense. Unloading and the associated costs are to be borne by the customer.

4.        We are only entitled to make partial deliveries if the partial delivery can be used by the customer for the contractually intended purpose, the delivery of the remaining ordered goods is guaranteed, and this does not result in any significant additional expenditure or costs for the customer.

 

5. Delivery Times, Delivery Delays

1.        Information regarding delivery times is approximate unless expressly confirmed by us in writing or a fixed-term transaction has been agreed.

2.        Delivery periods begin on the date of our order confirmation and are only valid under the condition that all details of the order have been clarified in a timely manner and that all obligations of the customer have been fulfilled in a timely manner.

3.        If the customer fails to fulfill contractual obligations in a timely manner, we are entitled to postpone our delivery times appropriately according to the needs of our delivery process – without prejudice to our rights due to the buyer’s default – according to the needs of our delivery process.

4.        Subject to any other agreement, the time of dispatch from the factory or warehouse or the notification of readiness for dispatch shall be decisive for compliance with delivery periods and dates. The factory or warehouse may also be located abroad.

5.        Transport routes from the factory or warehouse to the customer are not included in the specified delivery time.

6.        If acceptance is required, the acceptance date, or alternatively, the notification of readiness for acceptance, shall be decisive. If we are in default, the buyer must set a reasonable grace period. After the expiration of this grace period, the buyer may withdraw from the contract to the extent that the goods have not been reported as ready for dispatch or acceptance by the expiration of the grace period. A covering purchase is only permitted with our written consent.

7.        We are not liable for the impossibility of delivery or for delivery delays caused by force majeure, such as natural disasters, war or the threat of war, or other events that were not foreseeable at the time the contract was concluded, such as riots, operational disruptions of any kind (e.g., fire, machine and roll breakage), labor disputes, in particular strikes and lawful lockouts, difficulties in procuring materials and energy, transport delays, shortages of labor, energy, or raw materials, difficulties in obtaining necessary official permits, official measures, or the non-delivery, incorrect delivery, or late delivery by suppliers, for which we are not responsible. It is irrelevant whether the circumstances occur with us, the supplier, or another sub-supplier. This also applies in the event that we are in default, unless we caused the delay intentionally or through gross negligence. The contracting parties are obliged, within reasonable limits, to provide the necessary information without delay and to adapt their obligations to the changed circumstances in good faith.

6. Defects in the Goods, Warranty

1.        The warranty period is one year from the transfer of risk.

2.        In the case of only minor deviations from the agreed quality or only minor impairments of usability, no claims for defects shall exist. Production-related over- or under-deliveries are permissible within a normal tolerance.

3.        Complaints regarding recognizable defects, incorrect deliveries, or significant quantity deviations must be reported to us in writing immediately,

4.        no later than 7 days after receipt of the goods. Otherwise, the assertion of warranty claims is excluded. Material defects that cannot be discovered even with the most careful inspection within this period must be reported in writing immediately after discovery, but no later than before the expiration of the agreed limitation period.

5.        If acceptance of the goods or initial sample inspection has been agreed, complaints regarding defects that the customer could have discovered during careful acceptance or initial sample inspection are excluded.

6.        We must be given the opportunity to determine the reported defect. Any goods that are the subject of a complaint must be returned to us immediately upon our request; we will cover the necessary transport costs if the complaint is justified. The warranty

7.        shall be void if the customer fails to comply with these obligations or makes or has made modifications to the goods that are already the subject of a complaint without our consent, and this makes the rectification of the defect impossible or unreasonably difficult.

8.        In any case, the customer shall bear the additional costs of rectifying the defect resulting from the modification.

9.        In the event of a justified, timely notification of defects, we will, at our discretion, repair the defective goods or supply a faultless replacement within a reasonable period set by us. We shall have at least two attempts at subsequent performance.

10.    If subsequent performance fails, the customer may demand a reduction in the purchase price or withdraw from the contract. If a defect is due to our fault, the customer may demand compensation under the conditions set out in Section 8.

11.    The purchaser’s statutory recourse claims shall only exist to the extent that the purchaser has not entered into an agreement with his customer that goes beyond the statutory warranty claims. The scope of the recourse claims is limited in amount to the claims the purchaser is entitled to against us in the direct contractual relationship between us.

7. Retention of Title

1.      Delivered goods remain our property (reserved goods) until all claims to which we are entitled based on the business relationship have been fulfilled. This also applies to future and conditional claims. The purchaser shall store the reserved goods free of charge for us.

2.      Processing and working of the reserved goods are carried out for us as the manufacturer within the meaning of Section 950 of the German Civil Code (BGB), without creating any obligation on our part. The processed goods are considered reserved goods within the meaning of Section 7.1.

3.      If the customer processes, combines, or mixes the reserved goods with other goods, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods.

4.      If our ownership expires due to combination, mixing, or processing, the customer hereby transfers to us the ownership or expectant rights to the new item to which he is entitled in the amount of the invoice value of the reserved goods, or in the case of processing, in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. Our co-ownership rights are considered reserved goods within the meaning of Section 7.1.

5.      The customer may only resell the reserved goods in the ordinary course of business under its normal terms and conditions and as long as it is not in default, provided that it agrees to a retention of title with its customer and that the claims from the resale are transferred to us in accordance with clauses 7.5 and 7.6. The customer is not entitled to any other disposition of the reserved goods. The use of the reserved goods for the fulfillment of work and work contracts shall also be deemed to be resale.

6.      The customer’s claims from the resale of the reserved goods are hereby assigned to us. They serve as security to the same extent as the reserved goods within the meaning of clause 7.1.

7.      If the customer resells the reserved goods together with other goods, the claim from the resale is assigned to us in proportion to the invoice value of the reserved goods to the invoice value of the other goods. Upon the resale of goods in which we have co-ownership shares pursuant to Section 7.3, a portion of the claims corresponding to our co-ownership share shall be assigned to us.

8.      The purchaser is entitled to collect claims arising from the resale. At our request, the purchaser is obligated to immediately inform his customers of the assignment to us – unless we do so ourselves – and to provide us with the information and documents necessary for collection.

9.      The purchaser is not authorized to assign claims under any circumstances; this also applies to factoring transactions, which the purchaser is not permitted to engage in even on the basis of our collection authorization.

10. The purchaser must notify us immediately of any seizure or other interference by third parties. If the third party is unable to reimburse us for the judicial or extrajudicial costs incurred in connection with the enforcement of our property rights, the purchaser shall be liable for these.

11. In the event of breaches of duty by the customer, in particular in the event of default in payment, we shall be entitled to withdraw from the contract and take back the goods after the unsuccessful expiration of a reasonable period of grace set for the customer; the statutory provisions regarding the dispensability of setting a grace period remain unaffected. The customer is obligated to return the goods.

12. We shall be entitled to withdraw from the contract if an application is filed for the opening of insolvency proceedings against the customer’s assets.

8. General Liability

1.      Unless otherwise provided in these Terms and Conditions, we shall only be liable for damages due to breach of contractual or non-contractual obligations in the event of intent or gross negligence on the part of our legal representatives, senior employees, and vicarious agents; in the event of intentional or negligent injury to life, limb, or health, as well as in the event of intentional or negligent breach of essential contractual obligations. In the event of a culpable breach of material contractual obligations, we shall be liable – except in cases of intent or gross negligence on the part of our legal representatives, executives, and vicarious agents – only for the foreseeable damage typical for the contract. This provision does not affect claims for personal injury or damage to privately used property under the Product Liability Act.

2.      The limitation of liability does not apply in the absence of warranted properties or in the absence of a guaranteed quality, if and to the extent that the warranty or guarantee was intended to protect the partner against damages not caused by the delivered goods themselves.

9. Applicable Law

1.      The law of the Federal Republic of Germany shall apply; the applicability of the UN Convention on Contracts for the International Sale of Goods is excluded.

10. Place of Performance and Jurisdiction

1.      The place of jurisdiction for both parties to the contract is the registered office of our company.

2.      However, we are also entitled to sue the customer at their general place of jurisdiction.

3.      Mandatory statutory provisions regarding exclusive places of jurisdiction remain unaffected by this provision.

4.      Unless otherwise stated in the order confirmation, our registered office shall be the place of performance.

11. Miscellaneous

1.      For the manufacture and delivery of goods at the customer’s request, in particular based on drawings, models, samples, sketches, or other documents of the customer, the customer warrants that the intellectual property rights of third parties are not infringed. The customer assumes all liability for claims arising from or in connection with the execution of the customer’s order and the claims made by a third party.

2.      We are entitled to process or have processed all data relating to the business relationship with the customer within the meaning of the Federal Data Protection Act.

3.      Should individual provisions of these Terms and Conditions or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements. The invalid provision shall be replaced by a valid one that most closely corresponds to the intended economic purpose.

The same applies if a gap arises during the execution of the contract that requires supplementation.

The above shall not apply if adhering to the contract would represent an unreasonable hardship for one of the parties.