ADEK Bauteile GmbH
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Terms & Conditions
Note: This is a translation of the German version. In cases of uncertainty or conflict, the German version shall
prevail.
I. Application, Offers
1. These General Terms & Conditions (Conditions) shall apply to all present and future contracts with commercial
buyers, with public legal entities as well as public trusts in regard to deliveries and other services, including
contracts relating to the supply and manufacture of non fungible goods. In case of direct sales
(„Streckengeschäfte“), the producer’s conditions as laid down in his price list shall apply in addition to these
conditions. The Buyer’s purchase conditions shall not be binding even if we do not expressly object to them again
after their receipt.
2. Our offers are not binding do us. Oral agreements, promises, assurances and guaranties made or given by our sales
staff shall not be binding unless confirmed by us in writing.
3. Any trade terms shall, in cases of doubt, be interpreted according to the Incoterms as amended from time to time.
II. Prices
1. Unless otherwise agreed to, only such prices and terms shall apply as contained in our price lists effective at the time
when the contract is concluded.
2. Should taxes or other extraneous expenses included in the agreed upon price change or be added later than four
weeks after the conclusion of the contract, we shall be authorised to modify the price relative to the respective
change.
III. Payment and Set-Off
1. Unless otherwise agreed or stated in our invoices, payment shall be made without cash discounts immediately so that
we can dispose of the sum on the due date. Any payment transfer costs shall be borne by the Buyer. The Buyer may
retain or set off any counterclaims only in so far as his claims are undisputed or have become legally binding.
2. Should the Buyer default in payments, he will be liable to pay interest at 8 % points above the basic interest rate,
unless higher rates have been agreed upon. We reserve the right to claim additional damages resulting from late
payment.
3. The Buyer will be in default of payment at the latest 10 days after payment has been become due regardless of
whether we have sent a reminder.
4. Should it become evident after the conclusion of the contract, that payment is jeopardised by the Buyer’s lack in
financial means, or should the Buyer be in default with a considerable portion of the amount due or should other
circumstances arise which show a material deterioration in the Buyer’s financial position after the conclusion of the
contract, we shall be authorised to make use of rights under § 321 BGB (German Civil Code) and to make due any and
all of our non statutebarred accounts receivable resulting from the same legal relationship.
5. Any agreed upon cash discount always relates to the invoiced value excluding freight and will only be granted if and
in so far the Buyer has completely paid all payables due at the time of the discount. Unless otherwise agreed to
discount periods shall begin with the date of the invoice.
IV. Delivery Times
1. Our commitment to deliver is subject to our correct and timely self-delivery unless we are responsible for the
deficient or late self-delivery.
2. Any confirmation as to delivery times shall only be approximate. Delivery times shall commence with the date of our
order confirmation and are subject to the timely clarification of any details of the order as well as of the fulfilment
of any of the Buyer’s obligations, e.g. to produce official certifications, to provide letters of credit and payment
guarantees or to pay agreed instalments.
3. Any agreed delivery time shall be considered to be met if and in so far the goods have left the works or our
warehouse at such time or date. If and in so far the goods fail to be despatched at the agreed time for reasons not
attributable to us, the agreed delivery time shall be considered to have been met at the day on which the goods are
notified to be ready for dispatch.
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4. If the delivery is delayed by our fault, the Buyer, after setting a reasonable grace period, may withdraw from the
contract if and in so far as the goods have not been delivered by this date. Damage claims for delay and nonperformance
may be made in accordance with clause XI of these Conditions.
V. Retention of Title
1. All goods delivered to the Buyer shall remain our property (Reserved Property) until all of the Buyer’s accounts
resulting from the business relationship with him, in particular any account balances have been settled. This
condition shall apply to any future as well as any conditional claims including accepted notes and such cases where
the Buyer will affect payments on specifically designated claims. As soon as the Buyer has settled his accounts with
us in full, he shall obtain title to those goods which were delivered to him fore such payment was effected.
2. With regard to processing or manufacturing of the Reserved Property, we shall be deemed to be manufacturer within
the meaning of § 950 BGB (German Civil Code) without committing us in any way. The processed or manufactured
goods shall be regarded as Reserved Property within the meaning of clause V/1 of these Conditions. If the Buyer
manufactures, combines or mixes the Reserved Property with other goods we shall obtain co-ownership in the new
goods in proportion to the invoiced price of the other goods. If, by such combining or mixing our ownership expires,
the Buyer herewith transfers to us any rights which the Buyer will have in the new stock or goods in proportion to the
invoiced price of the Reserved Property, and he will keep them in safe custody free of charge. Our co-ownership
rights shall be regarded as Reserved Property within the meaning of clause V/1 of these Conditions.
3. The Buyer may resell the Reserved Property only within the normal course of his business in accordance with his
normal business terms and provided he is not in default of payment and provided also that any rights resulting from
such resale will be transferred to us in accordance with clause V/4 through V/6 of these Conditions. The Buyer shall
not be entitled to dispose of the Reserved Property in any other way.
4. The Buyer hereby assigns to us any claims resulting from the resale of the Reserved Property. Such claims shall serve
as our security to the same extent as the Reserved Property itself. If the Reserved Property is resold by the Buyer
together with other goods not purchased from us, then any receivables resulting from such resale shall be assigned to
us in the ratio of the invoiced value of the other goods sold by the Buyer. In the case of ownership rights according to
clause V/2 of these Conditions, the assignment shall be limited to the part which corresponds to our co-ownership
rights.
5. The Buyer shall be entitled to collect any receivables resulting from the resale of the Reserved Property. This right
shall expire if withdrawn by us, at the latest if the Buyer defaults in payment; fails to honour a bill of exchange; or
files for bankruptcy. We shall exert our right of revocation only if and in so far it becomes evident after the
conclusion of the contract that payment resulting from this contract or from other contracts is jeopardised by the
lack of Buyer’s ability to pay. The Buyer shall – upon our request – immediately inform his customers of such
assignment and to forward to us any information and documents necessary for collection.
6. The Buyer shall immediately inform us of any seizure or any other attachment of the Reserved Property by a third
party. He shall bear any costs necessary to suspend such seizure or attachment or removal of the Reserved Property,
if and in so far as such costs are not borne by a third party.
7. Should the Buyer default in payment or should he fail to honour a draft we shall be entitled to take back the
Reserved Property and to enter, for this purpose, the Buyer’s premises. The same shall apply should, after the
conclusion of the contract, it become evident that payment resulting from this contract or from other contracts is
jeopardised by the Buyer’s lack of ability to pay. If we take back the Reserved Property, this shall not be regarded as
withdrawal from the contract. The statutory regulations of the Insolvenzordnung (= German Insolvency Act) shall
remain unaffected.
8. Should the total invoiced value of our collateral exceed the amount of the secured receivables including additional
claims for interest, costs etc. by more than 50 %, we shall – upon the Buyer’s request – release pro tanto collateral at
our discretion.
VI. Grades, Sizes and Weight
1. Grades and sizes shall be determined in accordance with the DIN-/EN or mills standards effective at the time of the
conclusion of the contract, in absence of such standards with the trade usage. Any reference to such standards,
mill’s standards or workcertificates as well as any indication with regard to grade, size, weight or usage of the goods
shall not be regarded as a representation or guarantee. The same shall pertain to any declaration of conformity,
mill´s confirmation and to any related marks such as CE and GS.
2. The weight of the goods shall be determined on our or our supplier’s scales. Where provided by law, the weight may
be determined without weighing in accordance with the standards, whereby any supplements as provided by trade
usage („Handelsgewichte“) shall apply. Any indications given in the delivery notes as to the number of pieces,
bundles etc. are not binding if and in so far as the goods are invoiced by weight. Where, in accordance with trade
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usage, the goods are not weighed piece by piece, the total weight of the delivery shall prevail. Any difference with
regard to the calculated weight of the single pieces shall be proportionally allocated to them.
VII. Testing and Inspection
1. Where testing and inspection of the goods has been agreed upon, the goods must be inspected in the mill or in our
warehouse immediately after the Buyer has been informed that the goods are ready for dispatch. The Buyer shall
bear his personal inspection will be invoiced to him in accordance with our price list.
2. Should, through no fault of ours, an agreed upon inspection of the goods fail or be delayed or be incomplete, we
shall be authorised to dispatch the goods without prior inspection or to store them at the Buyer´s expense and risk
and to invoice the goods to him.
VIII. Dispatch, Passing of Risk, Packaging, Partial Delivery
1. We shall be entitled to choose the route and mode of dispatch as well as the forwarding agent and the carrier.
2. The Buyer shall immediately request delivery of those goods which have been notified to him as ready for dispatch.
Otherwise we are entitled, upon reminder, to ship such goods at the Buyer’s cost and risk or to store them at our
discretion and to invoice them to the Buyer.
3. Can, by reasons not attributable to us, the goods not be shipped via the designated route or to the designated place
within the designated time, we reserve the right to ship them via a different route or to a different place. Any
additional costs will be borne by the Buyer for his prior comments.
4. In all transactions, including freight prepaid and freight-free deliveries, the risk of loss or damage to the goods shall
pass to the Buyer at the time where we hand them over to the forwarding agent or to the carrier, at the latest with
their departure from our warehouse. We will buy insurance only if requested to by the Buyer and at his cost. The
Buyer shall unload the goods at his cost.
5. The goods will be delivered unpacked and not be protected against rust. Only where so provided by trade usage will
the goods be packed. Any package, protection and/or transport device will be supplied according to our experience
and at the Buyer’s cost. We will take back such devices only at our warehouse. We will not bear any costs for their
retransport or disposal.
6. We shall be entitled to make partial deliveries with reasonable quantities. Where and in so far allowed by trade
usage, we may exceed or reduce the agreed quantities.
IX. Callable and Continuous Deliveries
1. Where the contract provides for continuous deliveries, the Buyer shall divide the quantities and grades of the goods
into approximately equal monthly shipments. Otherwise we shall be entitled to specify them at our own fair and just
discretion.
2. Where the single calls for delivery exceed the total contractual quantity, we shall be entitled, yet not committed, to
deliver the surplus quantity and invoice it at the prices applicable at the time of the call or the delivery.
X Warranty Provisions
1. The Buyer shall immediately notify us in writing of any defects of the goods, at the latest seven days after their
delivery. Defects which, even upon careful inspection, cannot be discovered within this period must be notified to us
in writing immediately upon their discovery, at the latest before the elapse of any agreed or statutory warranty
period. In such cases the Buyer must suspend any processing or manufacturing of the goods.
2. If and in so far the Buyer’s claim for defects is justified and has been made in time, we may, upon our discretion,
remedy the defect or deliver non-defective goods („substitution“). Should we fail or decline the substitution, the
Buyer may, upon the elapse of an adequate additional period of time set by him, withdraw from the contract or
reduce the purchase price. In cases where the defect is minor, where the goods have already been resold, processed
or transformed, he may only reduce the purchase price.
3. We will reimburse the Buyer for his expenditures in connection with the substitution only in so far as such
expenditures are reasonable and proportional to the purchase price of the goods. We will not reimburse the Buyer for
any expenditures in connection with the redelivery of the goods to any other place than the place of performance,
unless such redelivery corresponds to the contractual use of the goods.
4. If and in so far the goods are subject to contractually agreed testing and inspection by the Buyer, such testing and
inspection shall bar any claims for such defects which might have been determined by the agreed type of testing and
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inspection. Has the Buyer, by his own negligence, not learned of the defect, he may claim only such defects which
we have knowingly not disclosed to him or which are subject to a guarantee.
5. If the Buyer fails to immediately give to us the opportunity to inspect the defect, especially if he fails – upon our
request – to immediately make the goods or samples hereof available to us, he will loose all of his warranty rights.
6. Our further liability is subject to Section XI. Any of the Buyer’s rights of recourse according to §§ 478, 479 BGB
(German Civil Code) shall remain unaffected.
XI. Restriction of Liability and Limitation Periods
1. Our liability for breach of contractual or extra-contractual obligations, in particular for non-performed or deferred
deliveries, for breach of duties prior to the contract („Verschulden bei Vertragsanbahnung“) as well as for tortuous
acts – including our responsibility for our managerial staff and any other person employed in performing our
obligations – shall be restricted to damages caused by our wrongful intent or by our gross negligence and shall in no
case exceed the foreseeable losses and damages characteristic for the type of contract in question.
2. The aforesaid restriction shall not apply to such cases where we breach our fundamental contractual obligations and
where such a breach of contract will endanger the contractual purpose; it shall neither pertain to damages to life, to
the body or to health caused by our fault nor to any cases where we have guaranteed certain characteristics of the
goods. Nor shall such clause affect our statutory liability laid down in the Product Liability Act
(Produkthaftungsgesetz) of 15/12/89. Any statutory rules regarding the burden of proof shall remain unaffected by
the aforesaid.
3. Unless otherwise agreed to any contractual claims which the Buyer is entitled to in connection with the delivery of
the goods shall fall under the statute of limitations within a period of one year after the goods have been delivered
to the Buyer. This limitation shall also apply to such goods which, according to their normal purpose of use, have
been used for constructional works related to real estate property and which have caused damage within this
construction unless this purpose of use has been agreed upon in writing. This restriction shall not apply to our
liability resulting from breaches of contract caused by our wrongful intent or by our gross negligence; neither to
damages to life, to the body and to health caused by our fault nor to any recourse claims under §§ 478, 479 of the
German BGB.
XII. Place of Performance / Jurisdiction / Applicable Law
1. The place of performance for our deliveries shall be the supplying work in cases of exwork deliveries, in all other
cases it shall be our enterprise. The place of jurisdiction shall be at our seat or – at our discretion – at the Buyer’s
seat.
2. All legal relationships between us and the Buyer shall be governed by the non-standardised laws of the Federal
Republic of Germany supplementing these Conditions, especially the German BGB/HGB, excluding the provisions of
the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UNCITRAL).
XIII. Applicable Version
In cases of doubt, the German version of these General Conditions of Sale shall apply.