Terms of sales, delivery and payment
I. General clauses
The following conditions are contractual parts of all contracts and they apply to all contracts concluded with us in the future, even if we do not expressly refer to them in future contracts.
Deviating business conditions; agreements made over the telephone or oral agreements – especially made by our representatives – which we do not expressly accept in writing, are not binding for us, even if we do not expressly object to them. Our liability for errors in taking or transfering orders and messages by telephone or telegraphically is – as long as they are permitted by law – excluded.
The following conditions are the basis of all offers, order confirmations and deliveries. The general terms of delivery for products and services in the electrical industry are to be applied.
1. Offers are principally made without engagement.
2. Should there be no way to obtain the commodities which are required to execute the order, the supplier is entitled to withdraw from the contract.
3. All details regarding the diameter as well as data regarding the quality of the cable products only apply as approximations. The supplier reserves the right of deviation in cable production contingent upon the fabrication and consistency of the commodities used, as long as the service and quality are not impaired.
III. Prices and pricing terms
1. The prices are in € (euro) and are to be understood without VAT. The VAT will be invoiced separately with the respective valid rate.
2. The calculation of the price will be based upon the valid price lists on the day of delivery.
3. The prices are according to the supplier’s option carriage paid to the receiving terminal, as long as individual shipments have a merchandise value of 1,500 € without VAT for metal surcharges. Should the orderer choose deviating dispatch instructions, the orderer shall be invoiced with the balance to the usual freight. The costs for collection are to be borne by the orderer.
4. We reserve the right to invoice appropriate surcharges for small orders.
5. For the calculation of the prices, the quotation of the metal value on the day following the clarification of the order in our plant is binding, plus a processing surcharge for blank conductive material and winding wires. Should a quotation not be available on that day, the subsequent quotation applies.
6. For the determination of the metal values, the quotations of the non-ferrous metal processing listings are valid as they are published in the daily press as follows:
- for copper: The quotation for electrolytic copper for conductive purposes (DEL-notation)
- for aluminium: The quotation for aluminium for conductive purposes. If the price calculation is based on the basic price (compare with pricelist) and if the daily quotation deviates from the basic price, the basic prices will change for each 1,000 metres by the amount resulting from the multiplication of the non-ferrous metal weight (Cu, Al) with the metal price difference. All surcharges or discounts for metal are always strictly net. Should the calculation of the price be based upon the hollow delivery prices, the prices will rise by the contemporaneous cost of the non-ferrous metal extraction process.
IV. Terms of payment
1. All invoices are to be paid immediately unless agreed otherwise, 2% discount within 10 days from date of invoice or 30 days net.
2. Payments can, of the supplier’s choice, be calculated against other outstanding debts.
3. As means of payment, cheques may also be accepted.
4. The right of retention of the orderer, provided it is not based on the same contractual relationship, as well as the offsetting against a litigious claim or a claim that has not yet been legally decided, is excluded. The supplier has the right to avert the exercise of right of retention by way of provision of security – also through a bank guarantee.
5. If the orderer is completely or partially in default with their obligation to pay, from this point on, he or she shall pay interest on arrears of 4% per year over the basic interest rate (§247 German Civil Law Code) – without affecting their other rights.
6. Should the orderer discontinue payments; or become insolvent, or not be able to honour a bill of exchange, the supplier‘s total claim including the claim of the bill of exchange will be due immediately.
In these cases, the supplier is qualified to demand payment in advance; or sufficient security, or to withdraw from the contract.
7. The supplier is qualified to offset all claims that he or she is entitled to against the orderer with the claims the orderer has against the supplier.
This offsetting is also allowed, if the maturity of claims on both sides are different; or if one party agrees on cash payment and the other party agrees on payment with acceptances or change of customer, or if other services have been agreed upon in order for the sake of fulfillment, or if other services have been agreed upon instead of fulfilling the order.With different maturity of the claims, invoicing will be made with the value date. With ongoing payment transactions, the permission to offset refers to the accounting balance.
1. Packaging of goods (paper, foils, cardboard boxes and similar forms of packaging) are included in the production prices.
2. The packaging for shipping (such as cardboard boxes for enamel-insulated winding wires) will be invoiced separately. The delivery of pallet cages and flat pallets will be made in exchange. Should a delay with exchange of the pallets occur, the orderer will be invoiced with the costs incurring for the supplier.
3. All cable coils and special coils remain the property of the supplier. The orderer may retain them on a loan basis. The orderer will be made liable for loss or damage.
Within the first 6 months of absence of the coils from the delivery plant, the coils will be loaned free of charge. From the 7th month onwards, the rent for the coils amounts to 15% of the deposit value of the coil for each starting month. Coils which have not been been returned after 12 months will be charged at the full deposit value.
For coils which are returned in proper form and which the supplier takes back within 3 years from delivery date, the supplier will reimburse 15% of the deposit value.
4. Should the cable drums be supplied by Kabeltrommel GmbH & Co. KG (KTG), their conditions will apply.
VI. Reservation of title
1. The supplier reserves the title of retention to goods supplied, as well as of new goods which might have been processed from delivered goods, until all claims made against the orderer have been satisfied.
The goods remain the supplier’s property. A pledge or a security by transfer of ownership of goods subject to retention is not allowed.
2. In case of resale or renting of the goods subject to retention – within the scope of correct business operations – the orderer will, as a matter of precaution, assign the claims to the supplier until the clearance of all claims. These claims arise from the supplier‘s future claims against customers for resale or renting and this does not require any specific statement. Should the goods subject to retention be sold or rented out together with other items without an individual price being agreed upon, the orderer will - with priority to all other claims - assign that part of the claim of the total price or the total interest for rental costs which corresponds to the invoice amount of the value of the goods subject to retention. Subject to withdrawal, the orderer is authorised to collect the claims assigned from the resale; however, the orderer is not authorised to acquire the goods in any other way such as cession. By request of the supplier, the orderer must inform the customer about the cession and hand over to the supplier all required documents for the enforcement of his or her rights against the customer. All costs of the collection and possible interventions are borne by the orderer.
3. If the orderer processes the goods subject to retention; if he/she re-forms them or connects them with other items, the processing and/or the re-forming and/or connection will be made for the supplier. The supplier will become the immediate owner of the item that has come into existence through processing, re-forming or connection. As long as the goods subject to retention only represent a part of a new item, the supplier is entitled to joint ownership of the new item, which corresponds to the value of the goods subject to retention included in the new item. The items that have come into existence through processing, re-forming or connection are goods subject to retention. If the new item is resold, the cession of the claim arising from the resale will take place, however, only to the amount which corresponds to the share of the joint ownership.
4. If the orderer does not completely or partially fulfill his/her obligation to pay within 30 days after maturity; if he/she does not honour the due bill of exchanges or cheques; if insolvency or if suspension of payment is given or if an application for court protection from creditors or an insolvency application has been filed, the supplier is entitled to take possession of the goods which are still subject to retention and the supplier is also entitled to further rights to the goods subject to retention without delay. The orderer is obliged to provide the supplier with the ownership of the goods. The claim to surrender or the appropriation of the goods does not represent a withdrawal from the contract.The supplier is entitled to immediately take possession of all goods which are still subject to retention; he/she may also immediately claim damages from the rights to the title retention. The supplier is entitled to utilise the goods subject to retention with the due care of a prudent businessperson and to satisfy outstanding claims from their proceeds.
5. Should the value of the security exceed the claims of the supplier against the orderer from the current business connection by a total of 25%, by request of the orderer, the supplier must release the security that the orderer is entitled to, according to the orderer’s choice.
1. The delivery period is according to the period of time agreed upon between the parties.
2. Delivery period begins on the day the agreement on the order between the orderer and the supplier has been provided in writing.
3. The delivery period has been adhered to when the goods have left the plant or the stock within the deadline. Should the dispatch or the collection of the goods be delayed for reasons which the supplier is not responsible for, the deadline is kept with the announcement of the dispatch note within the agreed period.
4. Should the non-compliance to the deadline be caused by force majeure, strike, lockout, faulty or late delivery by subcontractors or due to unforseeable circumstances which are outside the supplier’s or the subcontractor’s will, the deadline will be extended accordingly.
5. Should the orderer cause a delay of dispatch or the delivery of the goods to be delivered, the supplier is entitled to invoice the orderer with the additional costs.
6. Apart from that, the orderer’s right to withdraw after unsuccessful expiration of an appropriate extension of the deadline by the supplier remains unaffected. Should the orderer make use of his/her right to withdraw, he/she is not entitled to compensation for delayed completion according to §5.
7. In all cases of late delivery, other damage claims of the orderer are excluded, as well as for the extended deadline set by the supplier. This does not apply to cases of malice or gross negligence.
8. Partial deliveries are allowed.
9. The return consignment of goods to the supplier – irrespective of the reason – is only accepted after previous agreement.
10. The supplier reserves the right to deliver cable products in excess length and short length of a maximum of 10%, as long as it is required from a manufacturing point of view. The prices will be adapted accordingly. However, the orderer does not have the right to a subsequent delivery of a shortage or to damages.
VIII. Passing point of risk
1. The risk (risk of transport and reimbursement) will be passed on to the orderer, when the goods have left the plant or the stocks of the supplier, irrespective of the use of their own – or of externally owned – means of transport.
2. Should a delay in dispatch be caused by circumstances which the orderer is responsible for; or if the dispatch of the goods is executed later than the agreed delivery date as requested by the orderer, the point of risk will be passed on to the orderer from the day of dispatch note for the duration of the delay; the supplier is obliged to take care of the insurance according to the wishes and at the costs of the orderer. Without a specific wish from the orderer, a delivery will not be insured against theft; failure, transport and fire damage. Should the orderer wish that insurance be taken out, it will be taken out at the orderer’s expense.
IX. Material defects
The supplier is not made liable for defaults in delivery, which also include the absence of ensured features as follows:
1. All parts are to be delivered free of charge or must be repaired and re-delivered if they show defects within the statute of limitation without consideration of the operating time, as long as the cause is already present at the moment of passing point of risk.
2. Claims for material defects lapse within 24 months. This does not apply, provided that the law according to §§ 438 par.1 no. 2 (buildings and items for buildings), 479 par.1 (right of recourse) and 634a par.1 no. 2 (construction defects) German Civil Code prescribes longer deadlines, as well as in cases of injury to life, body or health, the supplier‘s deliberate or gross negligence and violation of duty. The legal provisions regarding suspended expiry, inhibition and new start of deadlines remain unchanged.
3. The supplier must be immediately informed by the orderer about material defects in writing, 3 days after receipt of the goods at the latest.
4. For high voltage current; telecommunication cables and high frequency cables as well as for sets, the guarantee is 24 months after placement in service.
5. The fulfilment of the guarantee of obligation related to substituted parts will be handed over to the ownership of the supplier.
6. The supplier will be made liable for subsequent and substitute parts to the same extent until the expiry of the original guarantee period of the delivered item.
7. The orderer’s right to claim damages for defects lapses in all cases from the point of rebuke within 3 months, but not before the expiry of the original guarantee period. Should an agreement not be reached within this period, the supplier and the orderer may agree on an extension of the statute of limitations.
8. The orderer must allow the supplier sufficient time and opportunity at the orderer’s discretion for the removal of defects. Should the supplier reject these, the supplier will be released from the removal of defects.
9. Should the supplier not use the approriate extension of time without removing the defect; if the removal of the defect is impossible; if it is refused or if the removal of the defect represents a further imposition for the orderer, the orderer has the right to mitigation; if the orderer and the supplier cannot agree on a mitigation, the orderer is entitled to redhibition.
10. The guarantee obligation terminates if the goods suffered incorrect treatment or storage; or if changes or repairs have been made by the order of a third party.
More claims of the orderer against the supplier and his/her agents are excluded, particularly a claim of substitute for damages which have not been caused to the product itself. This does not apply in cases of malice; gross negligence, defects in ensured features or if product liability applies. For claims of damages according to the product liability law, the legal regulations of statute of limitations apply.
X. Impossibility, Contract adaptation
1. If the supplier or the orderer cannot perform the incumbent delivery or service, the general rule of law applies with the following stipulation: If the impossibility can be traced to the supplier’s fault, the orderer is entitled to claim damages. This is however limited to the orderer’s claim of 10 per cent of the value of the part of the delivery or the service due to impossibility of which could not be put into operation. The orderer‘s right to withdraw from the contract remains unaffected.
2. As far as unforeseen events for the purpose of VII no. 4, change the economic significance or the content of the delivery or service or if they substantially effect the operation of the supplier, the contract will be adapted accordingly. If the supplier wishes to make use of his/her right to withdraw, he/she is obliged to inform the orderer of the extent of the event, even if initially an extension of the delivery time was agreed upon.
XI. Trade Mark Rights
The supplier is not liable for the infringment of trade marks regarding the delivered item, which has been produced according to drawings or technical instructions of the orderer. The customer has to indemnify the supplier against any claims of third parties.
XIII. Place of fulfillment and place of jurisdiction
Place of fulfillment is according to the choice of the supplier the respective sales branch; the plant, or the stocks of the supplier. Provided that the contract partner is a merchant, the place of jurisdiction for all arising litigations will be the supplier‘s headquarters. However, the supplier has the right to litigate at the contract partner’s place of jurisdiction. The contractual relationship is for both parties subject to German law.
XIV. Binding force of the contract
As long as the aforementioned conditions do not provide differently, the general terms of delivery for products in the electrical industry apply. Deviating conditions of purchase of the supplier are explicitly excluded. Should individual provision of these conditions be void, the validity of all other provisions as well as those of the contract remain unaffected.
Cables | Lines
There is no room for approximations in cable and line competence. Quality and performance must be perfect. And the offer must be perfect too - elmat offers you a product range which has grown to meet every requirement and every customer request. You can expect our solutions to be flexible. In every sense.
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