Conditions of purchase

Conditions of purchase of the KGW Gerber Edelstähle GmbH

I. Validity

  1. These general conditions of purchase are valid for all – also prospectively – orders of goods and services and their processing. We do not accept opposing or divergent conditions of these purchase conditions made by the salesman, unless in these conditions of purchase or in the contract concluded with the seller there is agreed something different. Should we accept the goods not expressly objecting these conditions, the seller may in no case assume our consent with his conditions
  2. Oral agreements with our employees are only binding when confirmed in writing.
  3. Orders can be cancelled until the receipt of a confirmation of order. Order confirmations have to be made in writing. The Supplier is obliged to accept our order within a period of two weeks.
  4. The preparation of offers is free of charge to us and is not binding.
  5. The interpretation of commercial terms shall be based on the Incoterms valid at the moment in question.

II. Prices

  1. Unless something different has been agreed the agreed price is a fixed price. Any increase in costs between conclusion of the contract and delivery by the supplier shall not affect the price.
  2. In case of "free house" deliveries, deliveries "free place of destination" and other "free"-deliveries, the price shall include the costs for freight and packaging. In case of "unfree" delivery, we shall bear the lowest possible freight rates only, unless a special kind of delivery has been requested by us.

III. Payment

  1. Unless otherwise agreed the following terms of payment shall apply: Payment shall be made either within 14 days with one p.c. discount or within 90 days without discount.
  2. Payment and cash discount periods shall commence from receipt of invoice, but not before receipt of the goods or, for services, not before their acceptance and, insofar as documentation, inspection documents (e.g. factory certification) or similar documents are included in the scope of services, not before their handover to us in accordance with contract.
  3. Payments will take place by check or bank transfer. Payment shall be deemed effected in due time when the check or bill of exchange has been sent by mail on the due date or, as the case may be, the remittance has been ordered with the bank on the due date.
  4. Maturity interests cannot be requested. The rate of default interest shall be five per cent above the base interest rate. In any event, we shall be entitled to furnish proof that the damage caused by our default is below the claim asserted by the Seller.
  5. We reserve our legal right to set off and right to refuse performance until counter-performance is affected

IV. Terms of delivery / Delayed delivery

  1. The agreed delivery dates and deadlines are binding. The supplier shall notify us immediately of imminent delays in delivery. At the same time the supplier shall provide suitable countermeasures, in order to avert the consequences of such delay.
  2. The decisive date for determining adherence to the delivery date or the delivery schedule is the receipt of the goods, unless otherwise agreed in writing.
  3. If the seller defaults in delivery, we shall be entitled to statutory claims. In particular, we shall be entitled to claim damages in lieu of performance after the futile expiration of a reasonable grace period stipulated by us. Our right to claim performance of the contract will not be excluded until the Seller has paid the damages in full.
  4. The contractor can only claim that he has not received essential documents that we were scheduled to supply if he did not receive such documents despite sending a written reminder.

V. Title retention

  1. With regard to the Seller's entitlement to reservation of proprietary rights, simple reservation of proprietary rights shall apply, so that ownership of the goods shall be transferred to us on payment for them, and accordingly any extended reservation of proprietary rights (rights to processing) and time-extended reservation of proprietary rights (reservation of proprietary rights extended in accordance with customer demands) and the current account reservation shall not apply.
  2. The Seller may claim return of the merchandise on the basis of the retention clause only if he has previously withdrawn from the contract.

VI. Execution of delivery and passage of risk

  1. The contractor undertakes to accomplish the order principally. The order may only be passed on, even if the supplier delivers in its own name, with our consent.
  2. The Seller shall bear the risks of accidental loss and accidental deterioration of the merchandise until it has been handed over to us at its place of delivery.
  3. Partial deliveries require our consent.
  4. Quantities exceeding or less than those ordered are permitted only within the usual trade conditions.
  5. The seller bears the packaging costs unless otherwise agreed in writing. If we carry the cost of packaging in a specific case, this must be charged to us at the lowest cost possible. The requirements to take back packaging are according to the Packaging Regulation (Verpackungsverordnung) of 21.08.1998.

VII. Statement of Origin

Where the Seller makes a declaration in regard to the origin of the sold merchandise, the following terms shall apply:

  1. The Seller will allow verification through customs authorities and submit all necessary information as well as any required certification.
  2. The Seller shall compensate us for any damages and losses incurred to us, if and in so far as the competent authorities, due to any deficient certification or impossibility to verify, fail to acknowledge the declared origin, unless he proves that he is not responsible for such consequences.

VIII. Liability for defects and statue of limitation

  1. The Seller shall deliver the merchandise free of any material and legal defects. He will certify in particular that his deliveries and his services comply with the state of the art and with any contractual requirements and standards.
  2. The Supplier shall be liable according to statutory provisions. We do not accept any further non-liability or any limitations of liability. To the extent the supplier is responsible for a damage of production, they are obliged if the causes of the damage fall within their scope of control and area of organization and if they are themselves liable to the third parties.
  3. To the extent that recall actions are required due to such product damage, the supplier is also liable to refund the necessary expenses thereof to the same extent. Where possible and reasonable, the Customer must inform the Supplier of the content and scope of the intended recall action and must give the Supplier the opportunity to respond.
  4. Other claims on our part remain unaffected.
  5. The Supplier undertakes to take out adequate product liability insurance cover with a recognized insurance company and to maintain the cover throughout the duration of the business relations, including warranty periods. Proof must be provided to us of the existence of such an insurance cover in the form of appropriate written confirmation (includes fax) from the insurance company to the most recent cover date. Without supporting evidence there is no entitlement to a payout for the Supplier’s reward. If we are entitled to further claims for damages, these shall remain unaffected.
  6. We shall be obligated to examine the goods randomly for any deviations in quality and quantity within reasonable time-limits. The prerequisite therefore is the existence of an inspection certificate appropriate to APZ 3.1DIN 10204.
  7. Any notice of a defect will be deemed to be in time if it reaches the Seller within eight working days by letter, fax, e-mail or by telephone. The deadline for the notice of defects begins at that point in time in which we - or within direct sales, our customers – have or should have determined that there is a defect.
  8. If an immediate inspection of the delivered goods is unsuitable for us based on visible operational procedures, a claim is still in due time if it has been immediately reported after discovery of the defect, unless the defect was obviously even without an examination of the goods.
  9. In the event that the merchandise shows a defect, we may exercise our statutory rights. If the Seller tries to repair the merchandise, such remedy is considered to have failed after the first unsuccessful attempt. We shall have the right to withdraw from the contract also in such cases where a breach of contract is not considered to be material.
  10. We can request from the Seller the refund of the costs we have to carry in relation to our customer, when the defect was present at the time the risk was transferred to us.
  11. Claims for defects are subject to the statutory limitation periods. Such periods will begin with the timely notification of the defect in accordance with the provisions of No. 7 of this clause. The Seller’s warranty for the merchandise will elapse at the latest ten years after ist delivery. This limitation does not apply, if the claims are based on facts, which the seller knew about or about which he must have known and which he did not reveal to us.
  12. The Seller hereby assigns to us - on account of performance the benefit of any claims against his supplier arising from the delivery of deficient merchandise or such merchandise not conforming with the guaranteed characteristics.

IX. Rights of withdrawal

  1. We reserve the right to withdraw from the contract up to the moment of delivery by means of written declaration to the supplier. If this right of withdrawal is exercised, the supplier shall be entitled to remuneration, calculated in accordance with the provisions of § 645 I German Civil Code
  2. If due to circumstances for which are not responsible, in particular due to force majeure, the performance of our contractual obligations becomes impossible or is significantly impeded, we can rescind the contract in whole or in part or request performance at a later date, without the contractor thereby acquiring any claims against us
  3. Should a contractual partner cease making payment or if insolvency proceedings are applied for vis-à-vis its assets or legal or out-of-court arrangement proceedings are applied for, the other contractual partner is entitled to rescind the part of the contract that remains unfulfilled.
  4. Furthermore our legal rights to terminate and rights to rescind a contract by these Purchasing Conditions or by the applicable legal regulations remain untouched.

X. Place of delivery, venue and applicable law

  1. Unless otherwise agreed to, our warehouse in Witten shall be the place of performance for the delivery. Place of performance for our payments is Witten.
  2. If the customer is a merchant by virtue, Witten, Germany, will be the exclusive legal venue for disputes resulting out of this contractual relationship, the legal dispute can also be carried on the place of delivery by our option. The legal place of jurisdiction applies otherwise
  3. All legal relationships between ourselves and the purchaser shall be governed by the laws of the Federal Republic of Germany supplementing these Purchase Conditions, including the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UNCITRAL).

XI. Final provisions

If one or several contract provisions in these terms of use are or become illegal, this will not affect the validity of the other provisions. The contracting parties shall undertake to agree to a provision that largely attains the purpose and objective the ineffective or void provision aimed at.

KGW Gerber Edelstähle GmbH
Status as of 31.12.2013