General Terms and Conditions (GTC)

The General Terms of Delivery and Payment (Conditions of Sale) of Nagler Normalien GmbH apply, whose brand ReCutec is. They apply accordingly to all orders and enquiries via recutec.de. This is a courtesy translation; in case of doubt the German version is legally binding.

General Terms of Delivery and Payment (Conditions of Sale)

§ 1 General – Scope

We act as a manufacturer, reseller and intermediary. These General Terms of Delivery and Payment (Conditions of Sale) apply to entrepreneurs (§ 14 BGB), legal entities under public law and/or special funds under public law (customers) and also apply to future transactions with the customer within an ongoing business relationship (continuous delivery relationship).

Our conditions of sale apply exclusively; we do not recognise any of the customer's terms that conflict with or deviate from our conditions of sale unless we have expressly agreed to their validity in writing. Our conditions of sale also apply where we carry out delivery to the customer without reservation in the knowledge of conflicting or deviating terms of the customer.

Agreements made between us and the customer for the purpose of executing a contract are confirmed in writing. The written form is also satisfied by transmission via fax or email.

Verbal agreements, promises, assurances and guarantees by our employees and other auxiliary persons in connection with the conclusion or amendment of the contract become binding only upon our written confirmation. The written form is also satisfied by transmission via fax or email.

§ 2 Offer – Offer documents

If the order qualifies as an offer pursuant to § 145 BGB, we may accept the order within a period appropriate to the individual case, which is, however, at least 2 weeks.

We reserve property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to written documents designated as "confidential". The customer requires our express written consent before passing them on to third parties. The same applies to drawings and specifications transmitted by the customer for manufacturing to drawing, which we use exclusively to fulfil the respective order.

Our offers are revocable until accepted.

§ 3 Prices – Payment terms

Unless otherwise agreed or stated in the order confirmation, our prices are "ex works (Incoterms 2000)".

Statutory VAT is not included in our prices; it is shown separately on the invoice at the statutory rate on the date of invoicing.

Any cash discount requires a separate written agreement.

Unless otherwise agreed or stated in the order confirmation, the purchase price is due net without deduction within 30 days of the invoice date and is to be paid such that we can dispose of the amount on the due date. The customer bears the costs and charges of payment transactions. The statutory rules regarding the consequences of default in payment apply.

The customer is entitled to set-off rights only if its counterclaims have been legally established, are undisputed or have been recognised by us. The customer is entitled to exercise rights of retention (§§ 273, 320 BGB) only to the extent that its counterclaim is based on the same contractual relationship or has been legally established, is undisputed or has been recognised by us.

§ 4 Delivery – Delivery time

Our delivery obligation is subject to timely and correct supply to ourselves (e.g. of steel and carbide raw material) and, in the case of import transactions, also subject to timely receipt of the required import and export documents, unless the delayed or incorrect supply or the late receipt of the required documents is our fault.

Compliance with our delivery obligation further requires the timely and proper fulfilment of the customer's obligation, in particular the timely transmission of complete drawings and specifications for items made to drawing. We reserve the defence of non-performance of the contract (§ 320 BGB) and any rights of retention (§ 273 BGB). Within transactions with continuous delivery (continuous delivery relationships, e.g. framework-price/call-off agreements), we may refuse delivery of the goods if our counterclaim for payment or our due payment claims against the customer from deliveries already made are outstanding, or if these are jeopardised by a lack of the customer's performance capability that becomes apparent after conclusion of the contract.

Delivery times are agreed individually. Compliance with the delivery time presupposes that the order is fully clarified, all any required approvals have been granted, and all documents and information to be provided by the customer are available to us, including the provision of any agreed letters of credit, payment guarantees, securities, deposits or down payments.

For continuous delivery relationships, call-offs are to be issued to us for roughly equal monthly quantities; if the call-off is not made or not made in time, we are entitled to make the determination at our reasonable discretion.

If the customer is in default of acceptance or culpably breaches other duties to cooperate (contractual main or ancillary duties), we are entitled to demand compensation for the damage incurred, including any additional expenses. Further claims remain reserved.

Where the conditions of paragraph (5) are met, the risk of accidental loss or accidental deterioration of the goods passes to the customer at the point in time at which it is in default of acceptance or default as debtor.

Events of force majeure entitle us to postpone delivery for the duration of the impediment plus a reasonable start-up time. This also applies if such events occur during an existing delay. Equivalent to force majeure are monetary, trade-policy and other sovereign measures, strikes, lockouts, obstruction of transport routes, delays in import/customs clearance and all other circumstances which, through no fault of our own, substantially impede or render impossible the deliveries. It is irrelevant whether these circumstances occur at our premises, at the supplying works or at an upstream supplier. If, due to the aforementioned events, execution of the contract becomes unreasonable for one of the contracting parties – in particular because execution of the contract is delayed in substantial parts by more than 12 months – that party may demand termination of the contract. If, during the period of the impediment, our purchasing and/or transport and/or clearance costs (landed costs) change by more than 20% compared with the time of conclusion of the contract, we are entitled to make a reasonable price adjustment at our reasonable discretion.

§ 5 Passing of risk – Packaging costs – Quantities/tolerances

Unless otherwise agreed or stated in the order confirmation, delivery is made "ex works (Incoterms 2000)".

The goods are generally delivered unpackaged and without rust protection. Where packaging is customary and appropriate for the goods to be delivered (e.g. knife sets, ripper teeth, wear plates), they are packaged accordingly in the form customary for the products. Packaging beyond the transport purpose or other special protection, e.g. for longer-term storage, requires an express agreement. Unless expressly agreed otherwise, the customer bears the costs incurred for such packaging and other protective measures.

Separate agreements apply to the return of packaging. We are not responsible for any costs incurred for the return shipment or disposal of packaging material.

If the customer so wishes, we will arrange transport insurance for the delivery; the costs incurred are borne by the customer unless expressly agreed otherwise.

We are expressly entitled to deliver partial quantities to a reasonable extent – in particular for continuous delivery relationships. Over- or under-deliveries of the contractually agreed delivery quantity are permissible within customary industry standards. Specifying an "approx." quantity entitles us to an over- or under-delivery of up to 10%.

Unless otherwise agreed or stated in the order confirmation, the risk – including the risk of any loss of the goods – passes to the customer upon handover of the goods to the carrier or freight forwarder, but at the latest upon leaving the supplying works or, if no supplying works is stated in the order confirmation, our warehouse; this also applies where carriage-free delivery (e.g. "free house" or "franco") of the goods to the agreed destination has been agreed.

§ 6 Description of the object of sale – Liability for defects – Damages

It is the customer's responsibility to describe details and specifications of the object of sale (such as particular grades, qualities, deviations from any standards) completely, clearly and correctly; incomplete or unclear information is to the customer's detriment.

Liability for a particular grade, quality, intended use or suitability is assumed only insofar as this has been expressly agreed. The assumption of a quality, durability or other guarantee requires an express written agreement; the contents of any agreed specification or any expressly stated intended use do not, without an express written agreement, constitute a corresponding guarantee. Even where we agree to provide works certificates, declarations of conformity, test certificates or similar documents (accompanying documents), this does not constitute a guarantee or liability without a special express written agreement.

Claims for defects by the customer presuppose that the customer has properly and promptly fulfilled its obligations to inspect and give notice of defects. Claims for defects are excluded if and to the extent that the customer fails to fulfil its obligation to carry out an inspection that is feasible in the ordinary course of business without delay. For larger deliveries of goods, meaningful sample inspections are to be carried out. Identified defects are to be notified to us without delay (notice of defects), in the case of hidden defects, however, at the latest within two weeks of discovery of the defect, and for all other defects at the latest within two weeks of delivery of the goods. The notice of defects must state the type of defect or deviation as well as the relevant individual delivery (if possible stating the delivery date) and the article designation, so that we can identify the goods complained of and the delivery. Upon request, the goods complained of or a sample thereof are to be provided to us at our cost. In the case of unjustified complaints, we reserve the right to charge the customer for freight and handling costs as well as the inspection effort (e.g. expert costs, laboratory costs).

In the event of a breach of material contractual duties, we are liable for slight and gross negligence and for intent; in the event of a breach of immaterial contractual duties, only for intent and gross negligence; here we are liable for the fault of our representatives or vicarious agents as for our own fault. Except in the case of intentional breach of duty, our liability is limited to the foreseeable damage typically arising, and in the case of any delay damage additionally to the value of the goods (net sale price) of the goods concerned.

Liability for culpable injury to life, body or health remains unaffected; this also applies to mandatory liability under the German Product Liability Act.

Unless otherwise provided above, liability is excluded.

The limitation period for claims for defects (including hidden defects) is 1 year from delivery of the goods.

§ 7 Overall liability

Liability for damages beyond that provided in § 6 is excluded – irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from fault at conclusion of the contract, from other breaches of duty or from tortious claims for compensation for property damage pursuant to § 823 BGB.

The limitation under paragraph (1) also applies insofar as the customer demands compensation for useless expenditure instead of a claim for damages in lieu of performance.

Insofar as liability for damages towards us is excluded or limited, this also applies to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.

§ 8 Retention of title

We retain title to the object of sale until receipt of all payments under the delivery contract. In the event of conduct by the customer in breach of contract, in particular default in payment, we are entitled to take back the object of sale. Our taking back of the object of sale constitutes a withdrawal from the contract. After taking back the object of sale, we are entitled to realise it; the proceeds of realisation are to be credited against the customer's liabilities, less reasonable realisation costs.

The customer is obliged to treat the object of sale with care; in particular, it is obliged to insure it adequately at its own cost at replacement value against fire, water and theft damage. Where maintenance and inspection work is required, the customer must carry this out in good time at its own cost.

In the event of seizures or other interventions by third parties, the customer must notify us in writing without delay so that we can bring an action pursuant to § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is unable to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer is liable for the loss incurred by us.

The customer is entitled to resell the object of sale in the ordinary course of business; however, it already now assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim that accrue to it from the resale against its customers or third parties, regardless of whether the object of sale was resold without or after processing.

The customer remains authorised to collect the claims from the resale even after the assignment. Our authority to collect these claims ourselves remains unaffected. However, we undertake not to collect the claims as long as the customer meets its payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed and no suspension of payments exists. If, however, this is the case, we may require the customer to disclose the assigned claims and their debtors, provide all information required for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.

Processing or transformation of the object of sale by the customer (e.g. the installation of knives, ripper teeth or wear plates into a machine) is always carried out for us. If the object of sale is processed with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the object of sale (final invoice amount including VAT) to the other processed items at the time of processing. For the item arising through processing, the same applies as for the object of sale delivered under reservation.

We undertake to release the securities to which we are entitled at the customer's request to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is at our discretion.

If the object of sale is taken abroad before full payment, the customer is obliged to inform us of this without delay, stating the country, and, at our request, to cooperate in establishing and, where applicable, registering comparable foreign security rights; we are entitled to disclose and notify our retention of title, including the assignment of claims, to third parties.

§ 9 Export to EU member states

For cross-border deliveries within the EU, the customer must inform us of its VAT identification number, under which it carries out acquisition taxation within the EU, before delivery. Otherwise, in addition to the agreed purchase price, it must pay the VAT amount legally owed by us for our deliveries. The statutory requirements for tax exemption of the delivery otherwise remain unaffected.

§ 10 Place of jurisdiction – Place of performance

The place of jurisdiction for both contracting parties is Lüdenscheid (Germany). However, we are also entitled to sue the customer at its general place of jurisdiction.

The entire delivery relationship with the customer – and, where legally possible, including any non-contractual obligations – is governed by the law of the Federal Republic of Germany; the application of the UN Convention on Contracts for the International Sale of Goods is excluded.

The place of performance is Lüdenscheid/Germany.

* BGB = Bürgerliches Gesetzbuch (the German Civil Code).
** ZPO = Zivilprozessordnung (the German Code of Civil Procedure).

Source: General Terms of Delivery and Payment of Nagler Normalien GmbH.