General Terms and Conditions of Business
RHEINZINK AMERICA, INC.
GENERAL TERMS AND CONDITIONS OF DELIVERY
1. Order placement, deviating conditions
1.1 Deliveries and services are performed exclusively according to the following conditions and any special conditions notified to the customer.
1.2 The customer’s General Conditions are only applicable subject to our explicit written consent. Neither the failure to raise objections nor the execution of delivery or service shall be interpreted as acceptance of the terms and conditions of a third party.
1.3 Where we have given consent to a change of our general terms of delivery or accepted the customer’s conditions, the individual conditions of our general terms of delivery remain effective unless deviations have been defined by those changes or the customer’s conditions, which means that in all cases which are not explicitly agreed otherwise, these general conditions of delivery remain effective. In cases where special conditions are agreed for particular orders, our general terms and conditions of delivery and payment are subordinate and in addition to them.
1.4 Any material shipped by us prior to our acceptance of a customer’s purchase order shall be governed by these terms and conditions of delivery.
1.5 A customer’s placement of an order with us and our sending of a confirmation (which shall include a link to these terms and conditions of delivery) shall constitute acceptance by the customer of these terms and conditions.
2.1 Our prices are “ex works” excluding packaging.
2.2 Prices for a particular order shall be as set forth in an email confirming such order and shall be subject to change without notice.
3.1 Delivery in parts is permissible to the extent that it is reasonable for the customer.
3.2 Delivery time commences as soon as the customer has fulfilled all his duties of cooperation, including but not limited to obtaining credit insurance as set forth herein. A delivery date fixed as a calendar date can be postponed for the period during which the customer fails to meet the necessary conditions to enable the delivery to take place. This does not apply where we are responsible for the delay.
3.3 To comply with the delivery date, it shall be deemed to be sufficient to notify the customer of our readiness to dispatch.
3.4 If, after conclusion of the contract, we or our sub-suppliers experience circumstances beyond our control or which were unforeseeable at that time, such as shortage of raw material or energy, faulty castings, loss of models, molds, tins or machines required for production, labor disputes, cases of force majeure or any circumstances we are not responsible for, which fundamentally complicate delivery or make it impossible, the delivery time is extended or the date of delivery is postponed as appropriate in each case, and essentially for as long as the impediment remains. We shall notify the customer of the start and end of such circumstances as soon as possible.
3.5 In the case of delayed performance as well as in the cases under clause 3.4 – but in such cases after 2 months at the earliest - the customer may assign a reasonable period in which to make delivery. If delivery is not executed within the period assigned or we declare our inability to deliver due to reasons referred to under clause 3.4 herein, the customer may withdraw from the contract in accordance with the statutory provisions. At our request, the customer shall be obliged to state within a reasonable period of time if he wishes to withdraw from the contract due to the delay in delivery or if he continues to require delivery.
3.6 If we are in default with regard to time in supplying the goods, the customer may claim compensation of 0.5% for each complete week of delay, up to a maximum of 5% in total of the price for that part of the delivery which could not be put into useful operation – provided the customer is able to conclusively show that customer has suffered a loss. In the event that the customer has agreed on a separate penalty for non- performance of contract if a delay occurs, only the separate penalty shall apply and the prior sentence of clause 3.6 shall not be applicable.
3.7 Any claim for compensation for late delivery, as well as claims for compensation instead of the service and going beyond the limitations described in provision 3.6, are excluded in all cases of late delivery, even after the expiry of a deadline set for us for delivery, unless we are compulsorily liable under the provisions of clause 14 of these conditions.
3.8 If a partial delivery is delayed or becomes impossible, the customer is not entitled to any claims concerning the remaining amount of the delivery unless a part performance is of no benefit to him. In such a case his rights are determined by the provisions of clause 3.5 herein.
4. Testing and Acceptance
4.1 The customer shall not delay any testing if requested tests shall be carried out at the customer’s cost at our producing plant or our sales branch. Therefore the customer will be granted an appropriate time-limit. Customer will be advised of the consequences of not meeting this time-limit as set forth herein.
4.2 If no complaint is made while testing, then no defects which could have been detected at the time of testing can be reported at a later date. The customer cannot refuse acceptance on account of an insignificant defect.
4.3 If a date for testing was agreed and the customer does not keep this date for reasons within his responsibility, tests are considered to have been carried out without objection. If the customer is unable to carry out the tests due to circumstances as described in clause 3.4, he shall be granted a reasonable extension of the deadline. If testing is delayed for more than one month after notification of readiness to dispatch or carry out tests, for reasons within the customer’s control, the customer may be charged storage costs amounting to 0.5% of the price of the objects to be delivered, for each month or part of a month, up to a maximum of 5% in total. The contracting parties are free to prove higher or lower storage costs.
5. Transfer of risk
5.1 Our deliveries are executed “ex works” or “ex our sales branches” unless agreed otherwise by individual contract.
5.2 Risk passes to the customer when we notify our readiness to dispatch but at the latest when the goods have left the producing plant or the sales branches. This also applies if we carry out partial deliveries or if we have taken on additional obligations, particularly if we are responsible for the transportation.
5.3 Transport insurance will be taken out only subject to special agreement and at the customer’s cost.
All products will be packaged and shipped in industry-standard packaging.
7. Provision of materials
In case of defective, incorrect or delayed provision of free-issue materials, the customer shall reimburse us for any cost and damages suffered by us.
8. Weights and delivery amounts
8.1 The customer is not entitled to any objections as long as we maintain industry-standard tolerances and the deviations of quantities or weight do not exceed 3%.
8.2 The weights and delivery amounts stated in our delivery notes are binding for the settlement of accounts.
9. Deliveries to ourselves
Our obligation to deliver is subject to correct and timely delivery to us by our suppliers. If this fails through no fault of our own, we shall not be responsible for any costs, losses or damages suffered by the customer.
10. Defects Liability
10.1 The customer shall examine the goods immediately and notify us in writing of any defects. Hidden defects must be notified in writing immediately after discovery. The same applies where goods other than those sold, or quantities other than those sold, are delivered.
10.2 Until settlement of the complaint, the goods forming the subject of the complaint shall neither be processed further nor treated or changed in any other way. We are to be given the opportunity to investigate the defects that have been reported on the spot; alternatively the goods forming the subject of the complaint shall be returned to us at our request.
10.3 Samples of the goods given to the customer are patterns. Nevertheless we shall still be entitled to deliver in accordance with industry-standards and according tolerances.
10.4 There is no defects liability where there is only insignificant or reasonable deviation from the agreed quality, in particular deviations from our offers, samples or sketches, only insignificant or reasonable reduction of usefulness, natural wear and tear or damage arising after the transfer of risk due to incorrect or negligent treatment, excessive use, unsuitable production facilities or caused by special circumstances not provided for in the contract. If improper changes or repairs are carried out by the Customer or by third parties, there shall also be no defect liability arising from such work or as a consequence of it.
10.5 The Customer may only withhold payment if defects have been notified about which there is no doubt that they are justified, especially in those cases where claims are not disputed, finally determined by court decision or ready for decision. Payments by the customer may be withheld in proportion to the material deficiencies that have arisen. If the notice of defects is unjustified, we are entitled to claim reimbursement of expenses against the customer.
10.6 Where the notice of defects is justified, we shall at our discretion eliminate the defect, provide a substitute or credit the calculated value of the defective goods. This applies to all those parts of deliveries showing a material defect within the period of limitation in accordance with clause 10.8 if and to the extent that its cause was already present at the time of the transfer of risk.
10.7 Initially, the customer shall give us the opportunity to cure our performance within a reasonable period of time. If cure fails, the customer is entitled – regardless of any claim for damages under clause 14 of these conditions– to withdraw from the contract or reduce payment. Only in urgent cases of danger to the security of his plant or for protection against extremely large losses, and after immediate notification to us, shall the customer have the right to repair a defect himself or to have it repaired by third parties and to claim the necessary expenses from us.
10.8 Claims with regard to material defects become statute-barred after one year from delivery or performance, or, where a longer liability period has been agreed, they are statute-barred after the expiry of that period. This does not apply in the case of longer statutory periods or in cases of harm to life and limb or health, in cases of intentional or grossly negligent breach of duty by us or fraudulent concealment of a defect. The statutory periods particularly apply to defects in a building or where goods used in a building in accordance with their normal purpose have caused it to be defective. The statutory provisions for suspension of expiration of limitation, suspension and recommencement of statutory periods remain unaffected.
10.9 Any right of recourse by the customer against us under the provisions for the purchase of consumer goods relating to recourse against the company shall only apply if the customer has not made any arrangements with his buyer beyond the statutory right to claim for defects.
10.10 Otherwise, clause 14 of these conditions (General Limitations of Liabilities) shall apply to claims for damages. More extensive claims or other claims by the customer against us and/or our subcontractors for a material defect are excluded.
10.11 In the event of any legal defects we shall be liable in accordance with the aforementioned provisions.
11. Advice, recommendation
Recommendations concerning processing or materials and other advice and recommendations are given to the best of our knowledge, but we accept no liability. Our liability under the provisions of clause 14 of these conditions (General Limitation of Liabilities) remains unaffected.
12. Terms of payment
12.1 If not agreed otherwise, our invoices shall be payable immediately on receipt without deductions.
12.2 Any counterclaims by the customer including defects liability claims do not give him the right to offset or withhold payment, unless it has been recognized or it is included in a final and binding decision.
12.3 If the payment by the customer is delayed, we shall be entitled to claim interest on arrears at the higher of (i) 1.5% per month or (ii) the maximum rate allowed by law.
12.4 We reserve the right to withhold delivery until such time as customer has obtained credit insurance solely acceptable to us.
13. Reservation of ownership
13.1 Until all current and future claims arising from the business relationship with the customer are satisfied, delivered goods shall remain our property (reserved goods).
13.2 If, in connection with payment of the purchase price by the purchaser, a liability by the seller arises under a bill of exchange, the reservation of ownership shall not expire before payment of the bill by the buyer as drawee. In the case of breaches of obligations by the buyer, especially in the case of late payment, and when an appropriate deadline set for the customer to pay has passed without success, we shall be entitled to withdraw from the contract and repossess the goods; the statutory provision that it is not essential to set a deadline remains unaffected. In this case the customer shall be obliged to return the goods.
13.3 The customer is obliged to store and label reserved goods separately.
13.4 The customer will process or convert reserved goods for us without any obligations arising from this for us. If the customer joins, blends, mixes or processes our reserved goods with other goods, we shall be entitled to a proportional joint ownership of the resulting goods. The value of our joint ownership shall depend on the ratio between the invoice value of our reserved goods and the sales value of the goods created by joining, blending, mixing or processing which, according to these provisions, thereby also become reserved goods in this sense.
13.5 Sale of the reserved goods shall be permissible in a regular business transaction as long as the customer ensures our extended reservation of ownership (assignment of receivables under clause 13.6), i.e., he receives payment from his customer or makes it a condition that the ownership shall only be passed to the customer after he has fulfilled his payment obligations. Other dispositions, particularly pledges and assignments of the reserved goods as security are not admissible.
13.6 The customer shall assign to us the full amount of any claims to which he is entitled due to resale of the reserved goods or on any other legal basis. In the case of joint ownership the assignment shall only apply to the part of the claim of our joint ownership under clause 13.4, regardless of whether the reserved goods have been resold before or after processing or if they have been resold to one or more customers. We herewith already accept the assignment. If the reserved goods are resold by the customer alone or together with other goods which are not owned by us, before or after any processing, the assignment of the claim arising from resale shall only apply to the amount of the reserved goods. If the aforementioned claims are brought into a mutual accounts relationship, the full amount of the mutual account claims are herewith assigned to us. After balancing out, it is replaced by the account balance that is assigned to us, up to the amount corresponding to the original mutual account claim; on termination of the mutual account relationship this shall apply accordingly to the closing balance.
13.7 The customer shall only be entitled to collect the assigned amounts receivable in accordance with correct business procedure and only with the right of revocation. If required by us, he shall notify the debtor of the assignment and we shall have the right to notify him at any time.
13.8 The authorization of the customer to have the right of disposal or processing, joining, mixing or blending of the reserved goods and to collect the assigned claims shall expire in the case of non-compliance with the terms of payment, unjustified dispositions, a significant deterioration in the customer’s financial situation, a bill or check protest or if insolvency proceedings are applied for. In such cases we shall be entitled to take possession of the reserved goods after notifying our withdrawal from the contract, but without allotting a reasonable period in which to pay, and to enter the customer’s company for this purpose, to demand relevant information and to obtain the necessary access to his books and records.
13.9 If the realizable value of the securities given to us exceeds our claims by more than a total of 10%, we shall release the excess securities on customer’s demand and at our discretion.
13.10 The customer shall notify us immediately of any forthcoming or completed interventions by third parties, especially levies of execution, attachments and other dispositions affecting the reserved goods and any assigned claims.
13.11 If and to the extent that the registration and/or fulfillment of other requirements is a precondition for the effectiveness of the reservation of ownership, the customer shall undertake immediately all actions necessary for this and to provide all notifications required. If and to the extent that the relevant jurisdiction does not permit the agreement of a reservation of ownership, the customer shall provide us with other suitable securities or take all other steps necessary to effect the security of our rights as appropriate and cooperate with us in regard to the taking of such necessary measures.
14. General limitations of liability
14.1 Customer´s claims for damages and reimbursement of expenses regardless of its respective statutory basis, particularly for breach of obligations arising out of the contract or in connection with it are excluded.
14.2 The aforementioned shall not apply if liability is mandatory under applicable laws and regulations, in cases of willful intent, gross negligence, harm to life and limb or health or breach of substantial contractual obligations. However, a claim for damages for breach of substantial contractual obligations shall be limited to typical, foreseeable damages arising from the contract unless the liability arises from willful intent or gross negligence or from harm to life and limb or health. The aforementioned provisions shall not be associated with any change to the onus of proof to the customer’s disadvantage.
14.3 Where the customer is entitled to claim damages under the aforementioned conditions, these shall be statute-barred after the expiry of the period of limitation applicable for claims for defects according to clause 10.8 of these conditions. In the case of entitlement to claims for damages under applicable laws and regulations, the statutory limitation periods shall apply.
14.4 The aforementioned limitations of liability shall also apply to claims that are directed at our employees, officers, directors, representatives and/or subcontractors.
14.5 The customer shall have made his mind in respect of his offer or acceptance regarding any delivery based on qualified advise. Any operation manuals, producer instructions, product descriptions, product line descriptions, specifications and similar representations issued by us and having been made available to the customer prior to or after contract execution shall not induce the customer to order any deliveries from us. Any liability resulting from any such aforementioned data or information shall be waived to the extent what is possible and permitted under the applicable laws.
The customer shall indemnify and hold us harmless without regard to any limitations set forth herein from any claims arising from any violation of rights of third parties If deliveries are made on the basis of intellectual property, drawings or other information received from the customer.
16. Models, tools, other forming devices
16.1 Tools, molds, tins and forging dies and such shall remain our sole property, even if the customer partly remunerates us for their utilization.
16.2 If the customer makes tools, molds, tins or forging dies available to us, they shall be delivered to us free of charge. We shall only accept liability for their loss or deterioration and any damages resulting from this if they are insured by us or if we are liable due to gross negligence or willful intent.
17. Place of fulfillment and jurisdiction, applicable law
17.1 Place of performance for our obligations and for the customer’s payment obligations shall be Woburn, MA USA.
17.2 Place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship, also for legal proceedings related to bills of exchange or checks, shall be the relevant courts for Woburn, MA USA. We shall also be entitled to sue the customer at his general place of jurisdiction.
17.3 The law of the Commonwealth of the Massachusetts, without regard to conflicts of law principles, shall be the governing law hereof.
17.4 SELLER MAKES NO WARRANTY OF MERCHANTIBILITY OR THAT THE MATERIAL SUPPLIED HEREUNDER SHALL BE FIT FOR ANY PARTICULAR PURPOSE OR LOCAL CODE NOR IS THERE ANY OTHER WARRANTY, EXPRESS OR IMPLIED, EXCEPT AS SUCH IS EXPRESSLY PROVIDED HEREUNDER. IT IS AGREED THAT OUR LIABILITY FOR DAMAGES, WHETHER BASED ON OUR NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY OR OTHERWISE SHALL NOT EXCEED THE PURCHASE PRICE OF THE PARTICULAR SHIPMENT WITH RESPECT TO WHICH SUCH DAMAGES ARE CLAIMED AND SHALL NOT INCLUDE LIABILITY FOR SPECIAL, INDRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES.
18. Partial invalidity
The legal invalidity of individual provisions of these conditions shall not affect the validity of the remaining provisions.