General terms and conditions
Terms and Conditions of Delivery and Payment of FALK Salzgitter GmbH (PDF)
(Valid from 01.01.2022)
A. General Provisions
I. Conclusion of Contract
- Our deliveries and services to persons who are not consumers within the meaning of § 13 BGB (German Civil Code) shall be made exclusively on the basis of the following terms of delivery and payment. We hereby object to any terms and conditions of purchase of the purchaser.
- The goods covered by the contract are limited to those from our own production, unless otherwise agreed.
- Our offers are subject to change.
- Orders of the purchaser in any form shall only be deemed accepted if expressly declared by us. Silence on our part in response to such an order shall not constitute acceptance. Likewise, any request for modification by the Buyer transmitted after conclusion of the contract shall require our confirmation. The same shall apply to commercial letters of confirmation transmitted in electronic form, unless the mutual electronic form of transmission has been agreed for the business relationship and the transmission is made to the address expressly designated for the receipt of such declarations.
- Our declarations directed at the conclusion, amendment or termination of contracts must be in writing; however, no qualified electronic signature is required unless otherwise agreed with the Buyer. Documents created by us by machine within the scope of semi-automated electronic order data processing shall also be valid without signature.
- A framework agreement for a fixed delivery quantity shall oblige the Buyer to accept and pay for the entire delivery quantity within the agreed period; call-offs by the Buyer or delivery schedules within the agreed lead times shall be deemed to determine the time of performance for the respective partial quantities.
- A framework agreement which only contains prices for indefinite delivery quantities within an agreed period of time, but no acceptance obligations on the part of the Buyer, does not establish any delivery obligations for us; delivery obligations only arise in the case of binding individual contracts, the conclusion of which is reserved.
- Insofar as it has been agreed with the Buyer that he is permitted to independently remove or request goods from a warehouse held by us at the Buyer's premises or from any other warehouse to be supplied by us, the holding of the goods within the framework of the existing delivery relationship shall - subject to any agreements to the contrary - be deemed to be a permanent offer of sale which shall be deemed to have been accepted at the latest by the authorized removal or request of the goods from the warehouse - irrespective of whether the removal is carried out by the Buyer or by us on behalf of the Buyer. We reserve the right to revoke the Buyer's authorization to remove or request goods from such warehouses at any time for good cause - in particular in case of endangerment of existing or future purchase price claims, in case of billing discrepancies, in case of endangerment of the goods or in case of termination of the supply relationship.
II. Purchase Price and Terms of Payment
- The purchase price shall be due for payment no later than on the 10th calendar day after delivery ex works or collection or removal or demand from the warehouse.
- If it has been agreed that the goods are to be released for shipment (call-off) or collected by our Buyer within a certain period of time after we have notified the Buyer that the goods are ready for shipment, the Buyer shall call-off or collect the goods within seven calendar days. If the Buyer does not call or collect the goods within this period, we shall be entitled from the time of readiness for dispatch to store the goods at a charge and to invoice them; in this case, the purchase price shall be due for payment 17 calendar days after the invoice date.
- The rights under clause A. II. 5. remain reserved.
- Payment shall be made without discount in such a way that we can dispose of the amount on the due date. The purchaser may only offset undisputed or legally established claims; he shall only be entitled to rights of retention insofar as they are based on the same contractual relationship.
- In the event of overdue payments, interest shall be charged at a rate of nine percentage points above the respective base interest rate.
- Insofar as our claim for payment is at risk as a result of subsequently occurring circumstances from which a significant deterioration in assets results, we shall be entitled to make it due for payment.
- In the cases of clause 5 as well as clause A. IV. 8. we may revoke the collection authorization (clause A. IV. 7.) and demand advance payments for outstanding deliveries.
- The legal consequences mentioned in clause 5. as well as in clause A. IV. 8. can be averted by the buyer by providing security in the amount of our endangered claim for payment.
- If the Buyer fails to make advance payment or provide adequate security within a reasonable period of time in the cases set forth in Section 5. or Section A. IV. 8. above, we shall be entitled to withdraw from the contract to the exclusion of any claims for compensation by the Buyer.
- The statutory provisions on default in payment and the assertion of the plea of uncertainty (§ 321 BGB) shall remain unaffected.
- If an acceptance/material inspection has been agreed, the Buyer shall bear the costs of its own personnel or of personnel commissioned by it and the Buyer shall reimburse our expenses in accordance with our current price list. The acceptance test shall be carried out at the supplier's works.
- Additional services which are not included in our price lists and for which no remuneration agreement has been made shall be remunerated in accordance with our applicable hourly rates for external services, or alternatively at the usual local remuneration rates for comparable services.
- In the event of a significant change in the costs of raw materials, input materials, energy, transport services or environmental protection or the introduction of new or a significant increase in existing public levies or charges with a comparable effect, whether under civil or public law, which in their entirety or individually lead to a significant increase in our manufacturing costs compared with the costs on which the conclusion of the respective contract was based, we shall be entitled to a unilateral price increase which shall be limited to passing on the actual cost increase while updating the original calculation; this shall not apply if a binding or non-binding delivery date was agreed within the first three months after conclusion of the individual contract; furthermore, this shall not apply if the change in costs was specifically foreseeable. In the case of framework agreements pursuant to Clauses A I. 6. and A. I. 7. the above provisions shall apply mutatis mutandis with the proviso that the three-month period shall commence upon conclusion of the framework agreement. The price increase shall be limited to the actual cost change of the relevant costing element and shall be notified to the Purchaser without delay. Within two weeks after receipt of the notification, the Buyer shall be entitled to extraordinary termination of the framework agreement and to withdraw from the individual agreement concerned, to the exclusion of any further rights.
- Without prejudice to our statutory and contractual rights, we shall be entitled to receive valuable collateral for all our claims arising from deliveries and services, even if they are conditional or limited in time. If we do not assert our claim to collateralization in individual cases or temporarily or not in the full amount, this shall not constitute a waiver of the claim to collateralization.
- If the buyer does not provide a requested security or if he does not extend a granted security which threatens to expire upon request, we shall be entitled to a right of retention with regard to deliveries and services not yet provided and the right to refuse stock withdrawals. After fruitless setting of a deadline, we shall be entitled to exercise the right of withdrawal with regard to all deliveries and services not yet provided, excluding any claims for compensation on the part of the purchaser.
- A legal lien shall exist in our favor on items delivered or provided by the Buyer which are processed or treated by us or which are otherwise the subject of or aids to our performance of services, which lien shall serve to secure our claims to remuneration from the processing or treatment, including ancillary claims. Statutory liens shall remain unaffected.
IV. Retention of title
- All delivered goods shall remain our property (reserved goods) until all claims have been fulfilled, in particular also the respective balance claims to which we are entitled within the scope of the business relationship. This shall also apply to future and conditional claims. We shall be entitled to mark the reserved goods as such and to prohibit the Buyer from removing or making the marking unrecognizable or to impose on him the subsequent marking.
- Treatment and processing of the goods subject to retention of title shall be carried out for us as manufacturer within the meaning of § 950 BGB (German Civil Code) without any obligation on our part. The processed goods shall be deemed to be goods subject to retention of title within the meaning of Section IV. 1.
- In the event of processing, combination and mixing of the reserved goods with other goods by the Buyer, 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 used. If our ownership lapses as a result of combining, mixing or processing, the purchaser shall already now transfer to us the ownership or expectant rights to which he is entitled in the new stock or item to the extent of the invoice value of the reserved goods, 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, and shall keep them for us free of charge. Our co-ownership rights shall be deemed to be reserved goods within the meaning of Section IV. 1.
- The Buyer may resell the reserved goods only in the ordinary course of business under his normal terms and conditions of business and as long as he is not in default, provided that he retains title and the claims arising from the resale are transferred to us in accordance with clauses IV. 5 and 6. He shall not be entitled to dispose of the reserved goods in any other way. Resale within the meaning of this section A. IV. shall also include the use of the reserved goods for the performance of contracts for work and services.
- The Buyer's claims arising from the resale of the reserved goods are hereby assigned to us. They shall serve as security to the same extent as the goods subject to retention of title within the meaning of clause IV. 1.
- If the reserved goods are resold by the Buyer together with other goods, the claim from the resale shall be assigned to us in the ratio of the invoice value of the reserved goods to the invoice value of the other goods. In the event of the resale of goods in which we have co-ownership shares in accordance with Section IV. 3, a part of the claim corresponding to our co-ownership share shall be assigned to us.
- The Buyer shall be entitled to collect claims arising from the resale unless we revoke the collection authorization in the cases specified in Clauses A. II. 5. and A. IV. 8. At our request, he shall be obliged to inform his customers immediately of the assignment to us - unless this is done by us - and to provide us with the information and documents required for collection.
- The buyer is not authorized to assign the claims in any case.
- If the buyer defaults on payment and if this indicates a risk to the realizability of a not insignificant part of our claim, we shall be entitled to prohibit further processing of the delivered goods, to take back the goods and, if necessary, to enter the buyer's premises for this purpose.
- The purchaser must inform us immediately of any seizure or other interference by third parties.
- If the value of the existing securities exceeds the secured claims by more than ten percent in total, we shall be obliged to release securities of our choice at the request of the Buyer.
B. Subject matter of the contract and execution of the delivery
I. Subject matter of delivery and origin of goods
- The subject matter, quantity and quality of the delivery shall be determined in accordance with the individual written agreement.
- There shall be no legal claim to delivery of goods originating from the European Union within the meaning of preferential customs regulations, unless such origin of goods has been expressly agreed.
II. Delivery reservations; deadlines; force majeure
- Delivery periods shall commence on the date of our order confirmation, but not before complete clarification of all details of the order; the same shall apply to delivery dates.
- All delivery periods and dates are subject to unforeseeable production disruptions and timely, correct and sufficient delivery of the necessary raw materials, input materials and external services by our suppliers and, insofar as merchandise is concerned, subject to the ability to deliver and timely, correct and sufficient delivery by our suppliers.
- The exceeding of delivery dates and deadlines confirmed under reservation shall not constitute a delay.
- If the Buyer fails to fulfill contractual obligations - including cooperation or ancillary obligations - such as opening a letter of credit, providing domestic or foreign certificates, making an advance payment or similar, in a timely manner, we shall be entitled to reasonably postpone our delivery dates and deadlines - without prejudice to our rights arising from default on the part of the Buyer - in accordance with the needs of our production process.
- The date of dispatch ex works shall be decisive for compliance with the delivery periods and dates.
- In cases of force majeure, the contractual obligations of both parties shall be suspended and the dates and deadlines for the fulfillment of contractual obligations shall be postponed accordingly; cases of force majeure shall also include labor disputes in our own and other companies, serious transport hindrances, serious machinery breakdown, sovereign measures and other circumstances for which neither party is responsible. The event of force majeure shall be notified to the other contracting party without delay. At the earliest after a period of six weeks of the force majeure event, each of the contracting parties shall be entitled to withdraw from the contract to the exclusion of any obligation to provide compensation in this respect. Any rights of withdrawal to which the Purchaser is entitled pursuant to Clause B. I. 7. shall remain unaffected.
- In view of the typical high production lead times of the Seller in the industry, the Buyer shall not be entitled to the rights under Sections 281 and 323 of the German Civil Code (BGB) in the event of non-compliance with delivery dates or deadlines until it has set us a reasonable deadline for delivery which - in this respect in deviation from Sections 281 and 323 of the German Civil Code (BGB) - is combined with the declaration that it will refuse acceptance of performance after expiry of the deadline; after unsuccessful expiry of the deadline, the claim to performance shall be excluded. A grace period with a threat of refusal shall not be required in the event of our final refusal to perform.
- In the event of delay, we shall only be liable for all damages and expenses proven by the Buyer arising from or in connection with delays in the performance owed in the event of culpable failure to meet binding delivery dates and deadlines; in this case, our liability shall be measured in accordance with the provisions of Section C.
- Without prejudice to its statutory duty to mitigate damages, the Buyer shall in particular be obliged to notify us in writing without undue delay of any impending damage caused by delay which is recognizable to it. We reserve the right to propose cover purchase options to the Buyer.
- The buyer may withdraw from the contract without setting a deadline if the entire delivery becomes finally impossible for us before the transfer of risk. In addition, the buyer may withdraw from the contract if the execution of a part of the delivery becomes impossible in the case of an order and the buyer has a justified interest in refusing the partial delivery. If this is not the case, the Buyer shall pay the contract price attributable to the partial delivery. The same shall apply in the event of our inability to perform. Section C shall apply in all other respects.
- The Buyer undertakes to comply with the safety and reliability requirements issued by the German customs administration for certification as an "Authorized Economic Operator" (AEO/AWB). If the Buyer does not itself have or has not applied for recognition as an Authorized Economic Operator, it undertakes to provide us with a separate declaration of commitment in accordance with the customs office model to comply with the security and reliability requirements. The Buyer undertakes to inform us immediately if compliance with the safety and reliability requirements is breached by him or by auxiliary persons employed by him in the performance of the contract or if compliance is no longer ensured.
- We shall have the right to terminate the respective contract for cause if the Buyer fails to comply with the safety and reliability requirements necessary for recognition as an Authorized Economic Operator or fails to submit a safety declaration to us upon request or if the Buyer or the auxiliary persons used by it in the performance of the contract violate these safety and reliability requirements.
III. Dimension, weight, quality
Deviations in dimensions, weight and quality are permissible in accordance with DIN or current practice. Color deviations of goods from different production batches do not constitute defects.
The dimensions of the goods shall be determined by us in a manner customary in the industry and shall be decisive for invoicing. The purchaser shall be at liberty to provide evidence of the incorrectness of the measuring procedure carried out by us. If he disputes the measurements determined by us, he must give us the opportunity to take a subsequent measurement before installation, further processing or sale.
IV. Shipment, packaging and transfer of risk
- As a matter of principle, we shall ship the goods at the expense and risk of the Buyer and shall select a suitable forwarding agent or carrier for this purpose. At the buyer's request, transport insurance will be taken out at the buyer's expense.
- For the shipment, freight surcharges shall be levied on the purchase price of the goods in accordance with the individual contractual provisions. All additional costs and expenses of shipment not covered by the freight surcharges shall be additionally charged to the Buyer.
- In case of collection of goods by the buyer, we are entitled to refuse the loading of vehicles which do not appear to be suitable for a transport or operationally safe transport or which do not have the necessary means for securing the load.
- The purchaser is responsible for unloading for each type of shipment. He shall return unloaded trucks and loading units to the carrier completely emptied, cleaned or decontaminated in accordance with the regulations and complete with loose components.
- If the loading or transport of the goods is delayed for a reason for which the Buyer is responsible, we shall be entitled to store the goods at the Buyer's expense and risk at our reasonable discretion, to take all measures deemed appropriate to preserve the goods and to invoice the goods as delivered.
- The same shall apply if goods notified as ready for dispatch are not called within seven calendar days. The statutory provisions on default of acceptance shall remain unaffected.
- The goods are always delivered in transport packaging. Special packaging or protective arrangements (e.g. for longer-term storage or sea transport) shall only be made if expressly ordered and against additional payment. Our separate instructions and leaflets on the transport of the goods must be observed. We shall not be liable for any damage resulting from disregard of these instructions.
- We take back packaging, protective and/or transport aids. We do not assume any costs of the buyer for a return transport or for an own disposal of the packaging.
- Unless otherwise agreed, the risk of accidental loss and deterioration of the goods shall pass to the Buyer upon handover to the carrier in the case of shipment, and otherwise upon provision for collection. If the goods are to be delivered or made available at the request of the Buyer only upon his call, the risk shall pass - whichever occurs earlier - upon handover or upon expiry of seven calendar days from the notification of readiness for dispatch. In the event of withdrawals by the customer from a warehouse or stock provided by us for the customer within the framework of further contractual agreements, the risk shall pass to the buyer at the latest upon withdrawal.
V. Defect rights
- The contractual quality of our goods and their freedom from defects shall be determined exclusively in accordance with the express agreements on the quality and quantity of the goods ordered at the time of the transfer of risk (Section 434 (2) (1) of the German Civil Code (BGB)), with the proviso that insignificant production-related deviations within the scope of tolerances customary in the industry or in accordance with standards, in particular color deviations of goods from different production batches, shall not constitute a material defect. Liability for a specific purpose or a specific suitability shall only be assumed insofar as this has been expressly agreed; otherwise, the risk of suitability and use shall be borne exclusively by the Buyer. We do not assume any liability for the suitability for the use stipulated in the contract as well as for the objective requirements stipulated in § 434 para. 3 BGB (German Civil Code). This shall also apply if we are aware of the intended use of the goods or do not object to the suitability of the goods or services for a specific use. In particular, the suitability of ordered trapezoidal profiles, flashings and other goods with regard to the selection of the profile, the material, the material thickness, the type and thickness of the coating, the color shades and any back protective lacquer or protective film for the intended use, the intended conditions of use including the statics and the climatic conditions at the place of use are not checked by us; this is the sole responsibility of the buyer. We shall not be liable for deterioration or loss or improper handling of the goods after the transfer of risk. Improper handling of the goods shall also be deemed to have occurred, among other things, if the goods are exposed to dynamic loads.
- The leaflets enclosed with our goods or available on our homepage as well as the technical rules of the International Federation for Lightweight Metal Construction (IFBS) on usual and permissible conditions of use and application, exclusions of use and the installation, maintenance and care instructions are an integral part of the contract and must be observed by the purchaser. In the event of resale, it shall be incumbent upon the purchaser to make the contents of the leaflets an integral part of the contract in relation to its customers. It is expressly pointed out to the Buyer that mechanical or chemical influences not in accordance with the intended use or application, use under unsuitable climatic conditions or improper installation will impair the quality and durability of the goods and that any damage to the coating must be repaired immediately in a professional manner.
- Contents of the agreed specification and any expressly agreed purpose of use do not constitute a guarantee; the assumption of a guarantee requires a written agreement.
- The purchaser must inspect the goods received immediately upon receipt. Defect rights shall only exist if defects are notified in writing without delay. Hidden material defects must be reported immediately after their discovery.
- In the event of complaints, the Buyer shall immediately give us the opportunity to inspect the rejected goods; upon request, the rejected goods or a sample thereof shall be made available to us at our expense. In the event of unjustified complaints, we reserve the right to charge the purchaser for freight and handling costs as well as the cost of inspection.
- In the case of goods sold as declassified material (e.g. so-called II-a material), the purchaser shall not be entitled to any defect rights with regard to the stated defects and those which he must normally expect.
- In the event of a defect, we shall, at our discretion - taking into account the interests of the Buyer - provide subsequent performance either by replacement delivery or by rectification of the defect; this shall not affect any mandatory statutory claims in connection with subsequent performance. We may refuse subsequent performance if it is only possible at disproportionate cost. In the manner of subsequent performance, we shall follow the recommendations of the IFBS; statutory rights of the purchaser shall remain unaffected.
If the subsequent performance by us is not successfully carried out within a reasonable period of time, the purchaser may set us a reasonable deadline for subsequent performance, after the fruitless expiry of which he may either reduce the purchase price or withdraw from the contract. Further claims, e.g. for damages or reimbursement of futile expenses, shall only exist in accordance with Section C.
In the case of material defects which are limited to a few definable parts of the goods and which do not significantly impair the use of the other parts of the goods, the parties shall endeavor to agree on a purchase price reduction which is reasonable in the individual case, with priority over the rights under sentence 1.
- The limitation period in the case of defective delivery shall end - except in cases of intent or gross negligence - one year after delivery. However, in the case of goods which have been used for a building in accordance with their customary use and have caused its defectiveness, the statutory limitation periods shall apply in deviation from sentence 1. §§ Sections 445a, 445b and 478 BGB shall remain unaffected. Rectification or replacement delivery shall not cause the limitation period to start anew.
In the event of personal injury or damage to privately used property or in the event of intent, the statutory limitation periods prescribed for this purpose shall apply in deviation from the above provisions.
- The Buyer's right of recourse against us pursuant to Sections 445a, 445b and 478 of the German Civil Code (BGB) shall be limited to the statutory scope of the third party rights in respect of defects asserted against the Buyer and shall require that the Buyer has complied with its duty to inspect and give notice of defects in relation to us. The purchaser is obliged to ward off unjustified claims. We shall not be liable for contractual extensions of liability, guarantee commitments or super-mandatory compensation payments by the purchaser to its customers or third parties.
- Lump sums for claims or damages or contractual penalties are not recognized.
- Insofar as the United Nations Convention of 11 April 1980 on the International Sale of Goods (UN Convention on Contracts for the International Sale of Goods) applies, it shall apply with the proviso that claims for damages and reimbursement of expenses against us on account of defective goods or on account of other defects in performance shall only exist in the event of fault on the part of our legal representatives or vicarious agents and only within the limits set out in Section C. below. The above limitation shall not apply to personal injury, damage to privately used property and other cases of mandatory liability.
C. General Limitations of Liability
- Our liability for damages or reimbursement of expenses for any legal reason shall be excluded or limited in accordance with the provisions of this Section C.
- We shall only be liable in the event of intent or gross negligence on the part of our legal representatives or vicarious agents or in the event of culpable breach of material contractual obligations.
- In the event of 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 or vicarious agents - only for the foreseeable damage typical of the contract.
- Liability for loss of production and loss of profit is excluded in all cases.
- Our liability on any legal grounds shall be limited in total to the total order value - in the case of call-offs from or individual orders based on framework agreements to the call-off or individual order value - unless there is higher insurance cover or higher claims for compensation against third parties outside the Group. If the total order value or the call-off or individual order value excluding statutory VAT is less than EUR 15,000, the amount of EUR 15,000 shall be deemed to be the upper limit of liability, unless there is higher insurance coverage or higher claims for damages against third parties outside the Group.
- The exclusions and limitations of liability contained in these Terms and Conditions of Delivery and Payment shall not apply in the event of intent and shall not apply in the event of personal injury, damage to privately used property and in other cases of mandatory liability under the law.
D. Other provisions
I. Taxes, Duties and Charges
- In addition to the purchase price, we shall separately charge sales tax at the applicable rate for sales to the Federal Republic of Germany.
- Cross-border deliveries shall be made duty unpaid and untaxed. Insofar as customs duties, taxes and other charges are levied, these shall be borne by the purchaser.
II. Proof of Export
If a Buyer domiciled outside the Federal Republic of Germany or his agent collects goods and transports or dispatches them abroad, the Buyer shall provide us with proof of this by handing over receipts that meet the requirements of the value added tax law of the Federal Republic of Germany. If this proof is not provided within thirty calendar days after handover of the goods, the Buyer shall pay the value added tax from the invoice amount in accordance with the value added tax rate applicable to deliveries within the Federal Republic of Germany.
III. Data Processing
- The data accruing in connection with the contractual relationship and the processing of the order shall be processed and stored by machine in electronic data processing systems.
- We reserve the right to disclose data for contract and payment processing and other information from the contractual relationship that is suitable for assessing creditworthiness to insurance companies and institutions for securing supplier credit and for assessing creditworthiness by electronic means.
IV. Applicable Law
All legal relationships between the contracting parties shall be governed exclusively by the laws of the Federal Republic of Germany, including the "United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980".
V. Place of Performance and Jurisdiction
- The place of performance for deliveries and payments shall be Salzgitter for both contracting parties.
- The exclusive place of jurisdiction is Hanover. We are also entitled to choose the general place of jurisdiction of the purchaser.