1.1. These Delivery and Payment Terms shall apply for all of our present and future contracts, quotations, deliveries and other services. Our deliveries shall occur exclusively on the basis of these terms. Deviating terms of the Purchaser are expressly rejected.
1.2. Our quotations are subject to change without notice. Purchase orders/quotations of the Purchaser shall only apply with our express declaration that we have accepted said purchase orders/quotations. Our silence relative to a purchase order/quotation does not constitute acceptance on our part.
1.3. A contract shall only become effective through our written order confirmation, which can also be communicated in electronic form. We shall issue the order confirmation on the basis of the data made available to us by the Purchaser; the Purchaser shall be solely responsible for the correctness and completeness of said data. The order confirmation shall set forth quality, quantity, description and specification of the product to be delivered.
1.4. Our employees and representatives shall not be authorised to issue assurances or declarations of warranty relative to the delivered products unless such assurances and declarations have been expressly confirmed by us in writing.
1.5. Drawings, technical descriptions and other documents shall remain our property. We reserve the property rights and copyrights to all drawings and corporate documents without restriction. Furthermore, we reserve the right to make technical improvements and design changes due to further development, as well as changes to the specifications of our products in order to fulfill applicable safety standards or statutory regulations, if such changes do not significantly influence the quality and features of our products. In this regard we shall not be obligated to make design changes and technical improvements on products of that have already been delivered.
1.6. Kingspan GmbH - brand sales ems belongs to a to a group of companies, whose holding company is the Kingspan Group Plc, whose registered office is located in Dublin Road, Kingscourt Co., Cavan, Ireland. Accordingly we shall be entitled to fulfill all of our obligations in accordance with a contract ourselves or through a different company of the group, and to exercise all of our rights arising from a contract ourselves or through a different company of the group, with the stipulation that all actions or omissions on the part of a different company must be viewed as actions or omissions on our part.
1.7. Our declarations concerning entering into, amendment or termination of contracts, as well as other oral ancillary agreements shall require written form in order to be legally valid, without a qualified electronic signature being required. This shall also apply to the waiver of the written form requirement.
1.8. If provisions of these Delivery and Payment Terms or of the contract are ineffective or become ineffective, the contract shall remain effective in all other aspects. The provision that most nearly approaches the economic purpose of the ineffective provision shall take the place of the ineffective provision.
The prices cited in the order confirmation plus VAT shall apply. For deliveries that should occur 8 weeks after a contract is entered into, or after an agreed delivery date, or that can only occur 8 weeks later due to a delay for which the Purchaser is responsible, we shall be entitled to adjust the prices accordingly, if price increases have taken place after the contract was entered into (e.g. increases in raw material prices wages, freight cost, etc.).
3. Payment terms, collateral
3.1. Payment shall be made without deduction by the due date shown on the invoice, or in the absence of a due date shown on the invoice, payment shall be on the 15th of the month following the delivery ex works or ex warehouse. The day the payment is received in our bank account shall be authoritative.
3.2. If it is agreed that the goods within a specific period of time after our notification of readiness to dispatch should be released by our Purchaser for dispatch (call-up), we shall be entitled starting at the point in time of readiness for dispatch to invoice for the goods; in this case the purchase price shall be due and payable 30 days after the invoice date.
3.3. The prerequisite for the delivery obligation shall be the unconditional creditworthiness of the Purchaser. If there is doubt in this regard, in particular unsuccessful reminders, suspended payments or rejection of the security by the commercial credit insurance, etc., we shall be entitled to demand prepayments or securities, to make a claim for payment immediately due, or to withdraw from the contract under exclusion of replacement claims on the part of the Purchaser.
3.4. Payment shall be deemed to be made when the money or an unconditional credit is received on our account. If the Purchaser fails to make payment within the specified period, we shall be entitled to charge interest in the amount of 9% above the respective base interest rate. The right to assert more extensive damage, as well as other legal rights shall remain hereby unaffected. If there are several outstanding receivables, then § 366 para. 2 of the German Civil Code shall apply, even if the Purchaser has made a designation of payment.
3.5. We shall have claim to the conventional type and scope of securities for our receivables, even if they are conditional or limited.
3.6. The statutory regulations regarding payment in arrears shall remain hereby unaffected.
4. Offset, retention and assignment prohibition
The Purchaser shall not be entitled to a right of retention or offset, except in the case of undisputed or legally asserted receivables arising from the same contractual relationship with us. The possibility of assignment of receivables against us shall be excluded.
5. Delivery, export certificate, confirmation of arrival
5.1. Our delivery obligation shall be subject to proper and timely supply of goods/materials to ourselves and unforeseeable production disruptions, unless we are responsible for the non-delivery or delay.
5.2. If the Purchaser does not fulfill contractual obligations – also secondary obligations, e.g. opening of a letter of credit, provision of foreign certifications, payment of a prepayment, etc., in a timely manner, we shall be entitled to extend our delivery periods and delivery dates appropriately for the requirements of our production processes, without prejudice to our rights arising from default on the part of the Purchaser.
5.3. Delivery periods cited by us shall start with the date of our order confirmation, however not under any circumstances before complete clarification of all details of the order, in particular submission of the specification/parts list, provision of any required domestic or foreign certifications or prepayments. We cannot schedule fixed dates with the order confirmation, however we shall strive to deliver the goods on the estimated delivery date. We shall also be entitled to deliver earlier and will appropriately inform the Purchaser in this regard.
5.4. The Purchaser shall be obligated to align his call-ups in accordance with the manufacturing dates of which the Purchaser has been notified; the part lists must be present in our facilities at the latest 14 days prior to the intended manufacturing date.
5.5. Delivery dates and delivery periods that we cite shall be based on the date of readiness to dispatch ex delivery plant. If we notify the Purchaser of a delivery time, we shall only be obligated to deliver on the agreed day. Thus an obligation to cover provisioning costs (e.g. equipment, personnel) on the delivery day shall be excluded. If the announced delivery day cannot be complied with, Purchaser shall be obligated to submit to us within 5 days suitable documents that specify the Purchaser's quantifiable damage; we shall only reimburse personnel costs on the basis of the renumeration that is customary for the location.
5.6. We shall be entitled to fulfill our delivery obligation in partial deliveries. If we provide partial deliveries, the Purchaser shall not be entitled to withdraw from the contract in whole or in part, if one of the partial deliveries is not provided punctually.
5.7. Force majeure events and other circumstances for which we are not responsible that make the delivery impossible or excessively difficult shall also entitle us within the default period, to extend the delivery date in accordance with the duration of the hindrance. Labour disputes in our own operations or external operations, transport delays, also those of our upstream material suppliers, low-tide or flood, machine breakage, sovereign measures and other circumstances for which neither of the contracting parties is responsible, shall also apply as cases of force majeure. The force majeure event shall be reported to the other contracting party as soon as possible. If the events cited above result in a not-only temporary hindrance or difficulty of performance, or if execution of the contract becomes unreasonable for us due to the events cited above, then, we shall be entitled in full or in part to withdraw from the portion of the contract that is not yet fulfilled.
5.8. If advance payment has been agreed with the Purchaser, then we shall be entitled to manufacture or deliver the goods only after complete payment of our invoice. Any costs incurred in this regard shall be the responsibility of the Purchaser.
5.9. If a Purchaser, located outside of the Federal Republic of Germany or the Purchaser's commissioned agent, picks up goods and conveys them or ships them outside of the Federal Republic of Germany, then the Purchaser shall be obligated to provide us with the export certificate required under tax law. If the export certificate is not provided, then the Purchaser shall be obligated to pay the VAT reimbursement of the invoice amount applicable for the deliveries within Germany.
5.10. For each tax-free, intra-Community delivery ex Germany into another EU Member State, in accordance with § 17 a, c of the Value Added Tax Ordinance (UStDV), the Purchaser shall be obligated to make a verification available to us concerning the actual arrival of the goods (so-called arrival confirmation). The verification shall be provided on a form that we make available. If the export certificate is not provided, then the Purchaser shall be obligated to the pay the VAT reimbursement based on the (net) invoice amount applicable for the deliveries within Germany.
6. Shipping, packing, transfer of risk
6.1. We shall determine the freight forwarder or freight carrier.
6.2. Goods that have been reported as ready to dispatch in accordance with the contract, must be called-up by the Purchaser, at the latest within 21 calendar days, otherwise we shall be entitled to store the goods, without prejudice to other rights, at the Purchaser's expense (including insurance) and risk, and bill for the goods immediately or after unsuccessful expiration of a period set for the Purchaser sell the goods at the best price that can be obtained and to bill the Purchaser (after deducting appropriate costs for storage, insurance and selling expenses) for any difference incurred relative to the total price. The statutory regulations regarding default of acceptance shall remain hereby unaffected.
6.3. The risk shall transition to the Purchaser with transfer of the goods to the freight forwarder or freight carrier, at the latest when the goods leave the plant or warehouse. In the event of default of acceptance, the risk shall transfer to the Purchaser at the time when we have offered delivery of the goods to the Purchaser.
6.4. If nothing to the contrary is agreed, we shall deliver the goods with the usual plant packaging. We shall not be obligated to take back the packaging that the Purchaser must dispose of at Purchaser's expense.
7. Installation, documents, etc.
7.1. For installation, the Purchaser must proceed in accordance with generally accepted standards of construction technology, with due consideration of the accident prevention regulations, general technical approvals, the IFBS installation guidelines and the respective technical planning guides
7.2. Execution suggestions, as well as consultations through our employees, only contain sample solutions from practice and must be viewed as non-binding recommendations only. The same shall apply relative to information and recommendations with respect to storage, utilisation, installation or use of the goods, for which the Purchaser is responsible, unless such information and recommendations have been confirmed by us in writing.
7.3. Any plans prepared by the Purchaser for us shall be provided without substantiation of an obligation on our part; in other words, we assume no obligation and the Purchaser shall be obligated to carefully review these plans.
8. Quality, dimensions, weights
8.1. Qualities, dimensions, weights and tolerances shall be determined in accordance with the relevant DIN standards, material data sheets and quality control. If DIN standards or material data sheets do not exist, then the relevant EURO-standards or factory standards shall apply, if EURO-standards or factory standards do not exist, then the custom of the trade shall apply.
8.2. Weights shall be determined on our calibrated scales and shall be authoritative for the billing. If individual weighing does not occur, then the total weight of the shipment shall apply.
8.3. References to standards, material data sheets, or factory test certificates shall not constitute an assurance of properties. If our goods and services are based on Purchaser's information and Purchaser's drawings, then we shall assume no liability for the correctness of the values and dimensions taken over from this Purchaser information and drawings. In the absence of written agreements to the contrary, we shall not be obligated to verify the information in the specific case.
9. Inspection and notification of defects obligation
9.1. The delivery must be checked for possible damage. Complaints must be entered in the transport documents of the freight carrier and must be reported to us with submission of the unloading report and photographs, on which the damage is evident, without delay, within 5 work days. For insurance reasons any other form of reporting shall be ineffective. Complaints that arrive late or that are incomplete shall not be processed and shall result in the exclusion of the asserted claim.
9.2. The Purchaser shall be obligated to examine the goods immediately after receipt and to assert apparent defects, whether these are quality defects or failure to comply with the specification, at the latest 5 working days after receipt, with detailed descriptions of the defects. Non-apparent defects must likewise be reported 5 days after determination in the same form, without delay. The point in time the notification of defects is received in our facility shall be authoritative. The periods of time for notifications of defects shall be preclusive time limits. If the Purchaser violates the inspection and notification of defects obligation cited above, the Purchaser shall be excluded from asserting claims in this regard.
9.3. When a defect occurs, all machining and processing must be stopped and we must be given an opportunity to inspect the goods. On request the rejected goods or a sample of the rejected goods shall be made available to us at our expense. In the case of unjustified complaints, we shall reserve the right to bill the Purchaser for all costs incurred due to the unjustified complaint.
9.4. If the goods are processed, installed, mixed or sold, then complaints shall be excluded. The machining and processing shall occur at the Purchaser's risk.
10. Claims for defects, limitation of liability, period of limitation
10.1. The goods shall be deemed to be in conformance with the contract if, at the time of transfer of risk, they do not deviate, or deviate only insignificantly, from the agreed specification. Conformance with the contract and freedom from defects of our product shall be assessed exclusively on the basis of the express agreements relating to the quality and quantity of the product ordered. Liability for a specific intended purpose or a specific suitability shall be accepted only if this has been expressly agreed; in all other aspects the suitability risk and usage risk shall be borne exclusively by the Purchaser. We shall not be liable for deterioration, loss or improper use after transfer of risk.
10.2. The contents of the agreed specification and any expressly agreed intended purpose shall not constitute a guarantee.
10.3. In the case of correctly reported and justified notification of defects, we shall be entitled to either repair the defective product or deliver a replacement, at our discretion. If repair and/or replacement delivery fail or they are not financially reasonable for Hoesch, then the Purchaser shall be entitled to reduce the purchase price or withdraw from the contract.
10.4. If the Purchaser has installed the defective product into another product, in accordance with its nature and intended use, or incorporated them into another product, then we shall be obliged, by way of supplementary performance, to reimburse the Purchaser for the expense of removing the defective product and for the installation or incorporation of the repaired or defect-free product delivered, if the defect was caused through wilful intent or gross negligence on our part.
10.5. For a product sold as lower grade material, for example second grade material, the Purchaser may not make a claim for defects.
10.6. For more extensive claims, in particular claims for damages arising from the contract, caused by consequential damage due to a defect or due to a breach of contractual, non-contractual, or pre-contractual obligations, we shall be liable only in the event of intent or gross negligence. This shall apply both for our employees and legal representatives and for our vicarious agents.
10.7. In the case of a breach of contractual obligations, including material contractual obligations, caused through minor negligence, we shall be liable only for damage that is foreseeable and typical for the contract – except in cases of intent or gross negligence on the part of our legal representatives or vicarious agents. In such cases, we may not be held liable for lost profit and production downtime.
10.8. Our liability for all damage compensation claims asserted against us shall be limited to twice the net delivered value of the goods.
10.9. In the event of personal injury, we shall be liable in accordance with the statutory provisions. We may not be held liable in any other circumstances.
10.10. We may not be held liable for defects in the goods that arise from a drawing, measurement or specification made available by the Purchaser, or for defects that arise from incorrect installation of the goods by the Purchaser or from failure to comply with our applicable installation guidelines. For the avoidance of doubt: Kingspan GmbH - brand sales ems is a product supplier, and is not involved in the implementation of projects in which the products may, if applicable, be installed.
Moreover, we may not be held liable for defects arising from normal wear, malicious damage, abnormal work conditions, failure to comply with the verbal or written work instructions provided by Kingspan GmbH - brand sales ems, incorrect use, or modifications/repair of the product without our consent.
10.11. Warranty claims and damage compensation claims due to a defect shall become statute barred one year after transfer of the delivery object. This shall not apply in the case of intent, gross negligence or malicious concealment of a defect, or in the case of customary use of the goods for a structure and the defectiveness of the structure was caused by said customary use. For other claims the statutory limitation shall apply. Repair and replacement delivery shall not cause the limitation period to start over.
11. Retention of title
11.1. All goods that we deliver (reserved goods) shall remain our property until payment of all of our receivables, including receivables arising in the future and claims against the Purchaser arising from the business relationship. If there are running accounts, the retention of title shall serve as security for our claim to the balance owed to us at any time. This shall also apply if payment from the Purchaser has been made on specific receivables. We shall be authorised to assign the payment claims against the Purchaser to which we are entitled.
11.2. The processing or transformation of the reserved goods shall always be performed by us as manufacturer as stipulated in § 950 of the German Civil Code, without thereby creating any obligation on our part. The machined and processed goods shall be considered as reserved goods as set forth in number 11.1.
In the event of processing or transformation of the reserved goods with other goods not delivered by us, we shall be jointly entitled to the new item in the ratio of the invoice amount of the reserved goods to the value of the other processed or transformed goods at the point in time of the processing or transformation.
In the event that reserved goods are combined, mixed or mingled with movable items of the Purchaser in such a manner that the item of the Purchaser must be viewed as the main item, then the Purchaser herewith now already transfers his ownership to the total item in the ratio of the final invoice amount apportioned to the reserved goods, to the value of the other combined, mixed or mingled items. The new item arising through processing, transformation mixing or mingling, i.e. the (joint) property rights to the new item to which we are entitled or that will be transferred to us shall serve as security for our claims in the same manner as the reserved goods themselves serve as security, as set forth in number 11.1.
11.3. The Purchaser shall be entitled to resell the reserved goods or the new item under retention of title in customary business transactions, as long as the Purchaser punctually honours his payment obligations to us. The permissibility of the revocation of resale authorisation as set forth in number 11.7 shall remain hereby unaffected. The Purchaser shall be obligated to ensure that the receivables arising from such resale transactions can be transferred to us as stipulated in number 11.4 and number 11.5
11.4. The Purchaser's receivables arising from a resale of the reserved goods shall now already be assigned to us. Said receivables shall serve as our security in the same scope as the reserved goods. If the Purchaser sells the reserved goods together with other goods not delivered by us, then the assignment of the receivable shall only apply in the invoice amount that arises from the resale of our reserved goods. For the sale of goods, which in accordance with number 11.2 or the statutory regulations concerning combining, mixing and mingling items that are owned by us, the assignment of the receivable shall apply in the amount of our proportion of joint ownership.
11.5. If the Purchaser includes his receivables arising from the resale of reserved goods in a current account relationship with his customers, the Purchaser already now assigns to us the acknowledged or final balance in his favour, which is equivalent to the total amount of the claims arising from the resale that are placed in the current account relationship. Number 11.4 Sentence 4 shall apply accordingly.
11.6. The Purchaser shall be entitled to collect the receivables assigned to us arising from the resale of the reserved goods or the new item. An assignment of the receivable arising from resale to a third party, even as part of a genuine factoring contract shall not be permitted.
11.7. We shall be entitled to revoke at any time the authorisation to resell the reserved goods or the new item in accordance with number 11.3 and the authorisation to collect receivables assigned to us in accordance with 11.6, in the case of default of payment, suspension of payment, transition of the Purchaser's business operations to a third party, in the case of impaired creditworthiness or trustworthiness or if the Purchaser has filed for the initiation of insolvency proceeding, and in the event of a serious breach of the Purchaser's contractual obligations on the part of the Purchaser as set forth in number 11.3. In the case of revocation of the authorisation to resell or collect, the Purchaser shall be obligated to inform the Purchaser's customers of the assignment of the receivable to us without delay, and to provide us with all information and documents required for collection. Moreover, in this case the Purchaser shall be authorised to hand over or transfer to us any securities to which the Purchaser is entitled for resale receivables.
11.8. If the realisable value of the securities existing for our benefit, exceeds our secured receivables by more than 10%, then we shall be obligated to release securities at our discretion on Purchaser's request.
11.9. The Purchaser shall be obligated to notify us without delay of a seizure or other legal or actual impairment or endangering of the reserved goods or of the other securities that exist for our benefit.
11.10. The Purchaser shall be obligated to adequately insure the reserved goods against fire, water and theft at the new value. The Purchaser shall already now assign Purchaser's claims arising from the insurance policies to us.
11.11. In the case of default of payment and in the case of rescission of the purchase contract, the Purchaser shall already now declare his consent that we remove or have removed the reserved goods, or if we are the sole owner that we remove or have removed the new item located on the Purchaser's premises, as set forth in number 11.2. The removal shall only include a withdrawal from the contract, if we expressly declare this withdrawal. The Purchaser shall be obligated to grant us or persons authorised by us access for execution of these measures, as well as for a general inspection of the reserved goods or new item.
11.12. After giving prior warning to this effect, we shall be entitled to sell the reserved goods that have been removed; the proceeds – after the deduction of reasonable costs of sale – shall be credited towards the Purchaser's account payable. To secure all present and future claims arising from the business relationship, the Purchaser shall grant to us a lien on all material provided to us for execution of the order.
12. Place of fulfillment and legal venue
12.1. The place of fulfillment for our delivery obligations shall be the site of the delivery plant or of the warehouse, from which we deliver; the place of fulfillment for the Purchaser's payment obligation as well as the legal venue for both contracting parties shall be Siegen, Germany. We shall also be authorised to bring an action against the Purchaser at the Purchaser's general legal venue.
12.2. The law of the Federal Republic of Germany shall apply; The UN Convention on Contracts for the International Sale of Goods shall be excluded.
12.3. When invoicing deliveries from one EU Member State into another EU Member State, the VAT regulations contained in the 6th EC Directive as amended shall apply unless precluded by national law. Insofar as VAT is to be levied by us, the Purchaser shall also pay the respective VAT in addition to the agreed (net) purchase price.