Nord-Schrott GmbH & Co. KG
Article 1: Area of application of the general terms and conditions
1. The following general terms and conditions of sale (hereinafter: the AVB) apply for all current and future business relationships of Nord-Schrott GmbH & Co. KG (hereinafter: NOS) with business partners and customers (hereinafter: Buyers) as do - in so far as not otherwise agreed upon or otherwise regulated in these AVB - the general commercial practices and customs and the legal provisions.
2. These provisions do not apply to contracts with private individuals.
3. These AVB apply in particular to contracts for the sale and/or delivery of movable things (hereinafter: goods), irrespective of whether NOS manufactures the goods itself or buys them from suppliers (Articles 433, 651 BGB (German Civil Code)). In so far as not otherwise agreed, these AVB apply in the version valid at the time that the Buyer submitted the order or in any event in the text form most recently communicated to the Buyer as a framework agreement for similar future contracts too, without the need for NOS to refer to these AVB again each time.
4. These AVB apply exclusively. Differing, conflicting or supplementary general terms and conditions of the Buyer will only be an integral part of the contract if and in so far as NOS has expressly approved their validity in writing. This requirement for approval applies in all cases, including for example when NOS unconditionally accepts the Buyer's collection of goods, services or payments in awareness of the Buyer's general terms and conditions of business. If NOS approves the Buyer's provisions then - unless otherwise regulated in the approval - they only apply for the individual contract in question.
5. In the event of contradictions between the Buyer's general terms and conditions that NOS has approved and these AVB, these AVB will prevail.
6. Individual arrangements made on a case-by-case basis with the Buyer (including subsidiary agreements, supplements and amendments) will in all cases take priority over these AVB. In the absence of evidence to the contrary, a written contract or NOS's written confirmation will be authoritative in respect of the content of such arrangements.
7. Legally relevant declarations and notices that the Buyer issues to NOS after the contract has been entered into (such as deadlines, reminders and notices of withdrawal), along with all arrangements to implement contracts between NOS and the Buyer, must be made in text form to be legally effective. When these AVB require such acts to be made in writing then the respective text form is always sufficient.
8. References to the applicability of legal provisions are for the purposes of clarification only. This means that even without such clarification, the relevant legal provisions are applicable, in so far as they have not been directly amended in or expressly excluded in these AVB.
Article 2: Offers and formation of a contract
1. Offers issued by NOS are non-binding and may be subject to change. In so far as no explicit commitment period is agreed or does not clearly arise from the circumstances then NOS's offers have to be accepted immediately.
2. A contract is formed when the purchase or order has been confirmed in writing (hereinafter: the sales confirmation) by NOS. Subsequent deviating purchase confirmations by the Seller do not amend the contract. The unconditional acceptance by NOS of collection of goods, of services or of payments does not mean that deviating confirmations have been recognized by NOS.
3. Amendments and supplements to or the dissolution of a contract or of these AVB are not effective until confirmed in writing by NOS. Declarations and notifications made by the Supplier after the contract has been entered into are only effective when made in writing.
4. Data such as drawings, illustrations, measurements, weights or similar are only stated without obligation. Information about properties (i.e. characteristics) of any type, as well as samples and specimens, are solely indications for the condition of the goods. They have only been precisely agreed when they have been expressly agreed in writing.
5. Scrap is a secondary raw material. Its purity in respect of its quality and its use as a raw material is limited to the option of material sorting, which is performed primarily visually and by origin, something that is carried out with the diligence typical of the industry. It is not possible to guarantee the varietal purity or the alloy purity.
Article 3: Prices
1. Unless otherwise agreed in an individual case, our current prices that apply at the time the contract in question was entered into apply, namely ex warehouse, plus statutory turnover tax, provided that the Reverse Charge process is not being applied or the transaction is exempted from turnover tax by virtue of other legal provisions.
2. In the case of a sale involving the carriage of the goods 'Versendungskauf' (i.e. a sale by delivery to a place other than the place of performance), the Buyer will bear the transportation costs from the warehouse, as well as the cost of any transportation insurance desired by the Buyer. Any and all customs duties, fees, taxes and other public levies will be borne by the Buyer.
3. The purchase price becomes due and is to be paid net (without deduction) within the payment periods set out in Article 9 of these AVB.
4. In the event of any delay, interest is to be paid on the purchase price at the respective statutory interest rate for delays. NOS reserves the right to assert a loss caused by delay that goes beyond this. Our entitlement to the commercial interest from the due date (Article 353, HGB (German Commercial Code)) is not affected in respect of businesspersons.
5. The Buyer is only entitled to setoff in so far as his claims have been declared in a legally binding way, are undisputed or have been recognised by NOS. He is also authorised to exercise a right of retention in so far as his counterclaim is based on the same contractual relationship.
6. If it becomes apparent after the contract has been entered into - for instance due to an application to open insolvency proceedings - that NOS's claim to the purchase price is being jeopardised by the Buyer's deficient capacity then under the legal provisions for refusal of performance - and possibly after setting a deadline - NOS is entitled to terminate the contract (Article 321 BGB (German Civil Code)). In the case of contracts for the manufacture of not fungible things (single-unit production), NOS can declare its termination of the contract immediately; this does not affect the legal provisions regarding the dispensability of setting a deadline.
Article 4: Delivery period and performance period
1. The periods and deadlines stated by NOS are without obligation, unless expressly agreed otherwise in writing or unless stated otherwise in NOS's purchase confirmation.
2. A further pre-requisite for the fulfilment of delivery obligations is the timely and proper fulfilment of the Buyer's obligations.
3. In so far as NOS is unable to comply with binding delivery deadlines for reasons that are not NOS's fault (unavailability of the performance) then NOS will inform the Buyer of this without delay and will simultaneously communicate the new probable delivery deadline. If the performance is not available by the new delivery deadline either then NOS is entitled to withdraw from the contract in whole or part; NOS will return to the Buyer without delay any consideration that the latter has already paid.
The following in particular are considered to be the non-availability of the performance in this sense: the late self-delivery by NOS's supplier, if a matching covering transaction was entered into, if this is neither NOS's nor the supplier's fault, or if in an individual case NOS is not obliged to purchase, along with other subsequently occurring difficulties regarding materials purchasing, operational interruptions, strikes, lockouts, lack of personnel, lack of means of transport, official directives etc.
4. The occurrence of a delay in delivery by NOS is determined by the legal provisions. In all cases, however, the Buyer must send a reminder.
5. If an impediment lasts longer than three months then the Buyer is entitled, after the setting of a reasonable grace period, to withdraw from that part of the contract that has not yet been performed. NOS is however entitled at all times to make partial deliveries and partial performances.
Article 5: Delivery/passing of the risk/default of acceptance
1. Unless expressly agreed otherwise in writing, delivery takes place ex works, which is also the place of performance for the delivery and for any subsequent performance. At the Buyer's request and at his expense, the goods will be sent to another destination (this constituting a sale involving the carriage of the goods 'Versendungskauf' i.e. a sale by delivery to a place other than the place of performance). In so far as not agreed otherwise in writing, in the case of a sale involving the carriage of the goods Versendungskauf NOS is entitled to choose the method of dispatch itself (especially the shipping company, shipping route and packaging).
2. The risk of accidental loss/destruction/deterioration of the goods passes to the Buyer at the latest upon handover to him. In the case of a sale involving the carriage of the goods Versendungskauf however, the risk of accidental loss/destruction/deterioration of the goods and of the risk of delay already passes with the handover to the carrier, the shipper or otherwise to the other person or establishment designated for the execution of the delivery or else when the goods leave NOS's company warehouse for dispatch (or the warehouse that NOS has designated for the dispatch). This also applies if the transportation is carried out by vicarious agents of NOS.
If it is not possible for the dispatch to be made without the risk being with NOS then the risk passes to the Buyer with the notification that the goods are ready for dispatch. If an acceptance procedure has been agreed then this is decisive for the passing of risk. In other respects too, the legal provisions of the law on contracts to produce a work apply to an agreed acceptance procedure. It makes no difference to the handover or acceptance whether the Buyer is in default of acceptance.
3. In the case of a sale involving the carriage of the goods Versendungskauf, the means of transport and method of dispatch will be chosen by NOS, unless agreed otherwise in writing.
4. If the Buyer is in default of acceptance or omits to carry out an act of cooperation or if NOS's delivery is delayed for reasons that the Buyer is responsible for then NOS is entitled to demand reimbursement of the loss resulting for this including the additional expenditure (such as warehousing costs). This does not affect the provisions regarding providing evidence of a loss that goes beyond this or NOS's statutory entitlements (in particular regarding reimbursement of additional expenditure, appropriate compensation, termination).
Article 6: Establishing weights and quantities
The weights and/or quantities established at the dispatch points are decisive. The acceptance of the packaging by the Bundesbahn (German Federal Railways), carrier or shipper will be considered to be proof of the flawless condition of the packagings.
Article 7: Defect-related claims by the Buyer; NOS's liability
1. The legal provisions apply to the Buyer's rights in respect of material defects and defects of title relating to the goods (including incorrect delivery and short delivery), unless not determined otherwise below. In all cases, the special legal provisions that apply to final delivery of the goods to a consumer (recourse to supplier by virtue of Articles 478 and 479 BGB) remain unaffected.
2. The basis for NOS's defect-related liability is above all the agreement reached about the condition of the goods. The agreement about the condition of the goods is deemed to consist of the goods descriptions that are the subject matter of the individual contract or that are made public by NOS (especially on our homepage).
3. If the condition was not agreed then the legal provisions are to be used to assess whether a defect exists or not (see Article 434 paragraph 1 pages 2 and 3 BGB).
4. A prerequisite for the Buyer's defect-related claim is that he has fulfilled his statutory duty to examine and the requirement to make a defect-related complaint immediately upon receipt of the goods (Article 377 HGB (German Commercial Code)). If a defect is found during the examination or subsequently then NOS must be informed of this in writing without delay. 'Without delay' is considered to mean reporting a defect - as defined by Article 377 paragraph 1 HGB - no later than three working days after receipt of the goods at the destination, whereby for adherence to the deadline it is sufficient to send off the report promptly. Defects that cannot be discovered within this period of time despite a careful examination, especially if an analysis is needed, must be reported to NOS in writing without delay after discovery.
In this case, this period commences with the discovery of the defect. Irrespective of this duty to examine and requirement to make a defect-related complaint immediately upon receipt of the goods, the Buyer must report obvious defects (including incorrect delivery and short delivery) in writing no later than three working days after receipt of the goods at the destination, whereby here too for adherence to the deadline it is sufficient to send off the report promptly. If the Buyer neglects to carry out a proper examination and/or report a defect in the proper way then NOS's liability for the defect that is not reported at all or else is not reported promptly or in the proper way is excluded under the legal provisions. Goods complained about must not be unloaded without NOS's consent, as if they are then they will be deemed to have been accepted in a defect-free state.
If a defect is not discovered until the unloading or afterwards then the materials are to be stored separately, as otherwise they will be deemed to have been accepted in a defect-free state. In other respects, in so far as not agreed otherwise or not otherwise regulated here, the customary rules and legal provisions for the assessment and assertion of quality-related defects apply.
5. If the delivered goods are defective then NOS can in the first instance decide whether subsequent performance is to take place through remedying of the defect (repair) or through delivery of defect-free goods (replacement delivery). This does not affect NOS's right to refuse subsequent performance under the statutory preconditions.
6. NOS is entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price that is due. However, the Buyer is entitled to withhold a part of the purchase price that is appropriate, given the significance of the defect.
7. The Buyer must give NOS the time and opportunity needed to perform the subsequent performance owed, and in particular to check the goods complained about. In the case of a replacement delivery, the Buyer must return the defective item to NOS in accordance with the legal provisions.
8. The expenditure needed for the checking and subsequent performance, in particular the shipping costs, road costs, labour costs and materials costs, will be borne by NOS if a defect is found to be present in practice. If a defect is not present then NOS can demand reimbursement from the Buyer of the costs (especially the checking costs and shipping costs) arising from the unjustified demand for the remedying of a defect, unless the lack of a defect could not have been discerned by the Buyer.
9. If the subsequent performance fails or if a reasonable deadline to be set by the Buyer for the subsequent performance is of no avail or else is unnecessary under the legal provisions then the Buyer can either withdraw from the sales contract or reduce the purchase price. However, there is no right to withdraw in the case of an insignificant defect.
10. The Buyer's entitlement to compensation or to reimbursement of expenditure without avail also exists in respect of defects but only in accordance with the following paragraphs and in other respects are excluded.
11. Only the direct Buyer is entitled to make defect-related claims against NOS; such claims are not assignable.
12. NOS is liable according to the legal provisions if NOS has breached a material contractual obligation intentionally or due to its gross negligence. Within the context of these AVB, a contractual obligation is deemed to be material if the proper execution of the contract is not possible without its fulfilment and if the Buyer regularly relies on and may rely on its fulfilment. In this case, liability for reimbursement is limited to the foreseeable, typically occurring loss.
13. In so far as the Buyer is in other respects entitled to compensation in lieu of the performance due to a negligent breach of duty then NOS's liability is limited to reimbursement of the foreseeable, typically occurring loss.
14. The liability for a fatal or physical injury or injury to health caused intentionally or through gross negligence is not affected.
15. A more far-reaching liability of NOS for compensation than that provided for in this arrangement is excluded, irrespective of the legal nature of the asserted claim. This is especially true for compensation claims connected with fault at the time the contract was entered into, due to other breaches of duty or due to tortious claims for the reimbursement of material defects in accordance with Article 823 BGB (German Civil Code). This applies mutatis mutandis in so far as the customer, instead of claiming compensation in lieu of the performance, demands the reimbursement of useless expenditure.
16. In so far as NOS's liability for compensation is excluded or limited, this also applies in respect of the personal liability for compensation on the part of NOS's staff, employees, personnel, representatives and vicarious agents.
Article 8: Retention of title, transfer by way of security and assignment for security purposes
1. Until the full payment of all current and future claims that NOS has against the Buyer under the contract of sale and/or on all other legal grounds in connection with an ongoing business relationship (secured claims), NOS retains the ownership of the goods sold (hereinafter: the goods subject to retention of title).
2. The goods that are subject to retention of title must not be pledged to third parties nor be assigned as security until the secured claims have been paid in full. The Buyer must inform NOS in writing without delay if an application to open insolvency proceedings is filed or if third-party attachments (e.g. seizures) are made on the goods that belong to NOS.
3. If the Buyer acts in breach of the contract, especially by failing to pay the purchase price due then NOS is entitled to withdraw from the contract in accordance with the legal provisions and/or to reclaim the goods on the grounds of retention of title. The demand for the reclaiming of the goods does not automatically constitute the declaration of withdrawal; rather, NOS is entitled to merely reclaim the goods and still retain its right to withdraw. If the Buyer fails to pay the purchase price that is due then NOS may only assert these claims if NOS has previously set the Buyer a reasonable deadline for payment to no avail or if such setting of a deadline is unnecessary under the legal provisions.
4. Until further notice, the Buyer is authorised under c) below to resell and/or process in its ordinary course of business the goods that are subject to retention of title. In this case, the following additional provisions apply.
a) The retention of title applies to the full value of the products created from the processing, mixing or combining of NOS's goods, with NOS being deemed to be the manufacturer but without obligations arising for NOS from this. If - in the case of a processing, mixing or combining with goods of third parties - the latter retain their property rights then NOS acquires co-ownership in proportion to the invoice values of the processed, mixed or combined goods. The Buyer preserves NOS's ownership or co-ownership free of charge. In other respects, the same applies for the product created as does for the goods delivered under retention of title.
b) The Buyer already cedes to NOS the claims vis-à-vis third parties that arise from the resale of the goods or product in their entirety or in the amount of any co-ownership share held by NOS in accordance with the previous paragraph, this for the purpose of securing NOS's claims. NOS accepts the cession. The Buyer's obligations referred to in Paragraph 2 of this arrangement also apply in respect of the ceded claims.
c) The Buyer remains authorised to collect the claim, as does NOS. NOS undertakes to refrain from collecting the claim as long as the Buyer fulfils his payment obligations towards NOS, there is no shortcoming in his performance and NOS does not assert the retention of title by exercising a right by virtue of Paragraph 3 of this arrangement. If this is the case however then NOS can demand that the Buyer informs NOS about the ceded claims and their debtors, provides all information needed to collect on the claims, gives him the documents relating to this and informs the debtors (third parties) about the cession. In addition, in this case NOS is entitled to revoke the Buyer's authority to resell and process the goods that are subject to retention of title.
d) If the realisable value of the security items exceeds NOS's claims by more than 10% then at the Buyer's request NOS will release security items at its (i.e. NOS's) discretion.
5. The Buyer is obliged to adequately insure the goods that are subject to retention of title against natural hazards and theft, doing so at his own expense and in favour of NOS.
6. In the case of third-party attachment to the goods that are subject to retention of title or that are acting as security, the Buyer will point out NOS's ownership and inform the latter without delay, so that NOS can institute legal proceedings by virtue of Article 771 ZPO (German Code of Civil Procedure). In so far as the third party is not in a position to reimburse NOS for the judicial and extrajudicial costs of the legal proceedings, the Buyer is liable for the shortfall that arises.
7. In the case of the definitive taking back of the goods, NOS is entitled to implement a lump-sum discount of 25% when issuing the credit note, without providing further proof. The right to further compensation is reserved.
8. The retention of title in accordance with the above provisions also remains if NOS's individual claims are made part of a current invoice.
9. Payments made by bill of exchange or cheque will only be accepted for the purposes of making payment and do not affect the agreed retention of title. In the case of payment by cheque or bill of exchange, the retention of title continues to be effective until the final bill of exchange is honoured.
Article 9: Payments
1. The purchase price becomes due and payable no later than 30 days after invoicing and delivery or acceptance of the goods but not later than 30 days after NOS's effecting of performance. However, within the context of an ongoing business relationship NOS is at all times entitled to only perform a delivery in whole or part against prepayment. NOS will declare such a proviso at the latest with the confirmation of the order.
2. If a payment term is agreed then the day of delivery is deemed to be the key date for its calculation and for any calculations of interest. When it comes to payment, each order is considered to be a standalone transaction. In the case of deliveries under an apportioned contract, the above applies for each individual delivery.
3. Despite any provisions to the contrary by the Buyer, NOS is entitled to initially credit payments to the Buyer's older debts. If costs or interest has/have already arisen then NOS is entitled to initially credit the payments to the costs, then to the interest and finally to the principal obligation.
4. A payment will not be deemed to have been made until NOS can dispose of the amount in question. In the case of cheques, the payment will not be deemed to have been made until the cheque is honoured unconditionally and definitively.
5. Payments made via bills of exchange require the express prior consent of NOS. All fees relating to bills of exchange will be charged to the Buyer. If bills of exchange are accepted then this does not constitute a prolongation of payment for the underlying claim.
6. Cash payments made to NOS only have the effect of discharging an obligation in so far as they are made by persons who have been provided with a written authority for payment collection.
7. If the Buyer fails to fulfil his payment obligations, in particular by failing to honour a cheque or by suspending his payments or by filing a protest against a bill of exchange or if NOS learns of other circumstances that call into question the Buyer's creditworthiness then NOS is entitled to make the entire remaining debt due and payable, even if NOS has accepted cheques. In this case, NOS is also authorised to demand appropriate security.
Article 10: Data protection
NOS notifies the relevant parties that personal data about the contact partners is collected and stored at the respective Buyer, this personal data including: phone numbers, fax numbers, e-mail addresses, delivery addresses and employment position in the company. The purpose of this data collection is the fulfilment of NOS's contractual obligations in respect of the respective Buyer and the fulfilment of legal obligations.
The legal basis for this is provided by Article 6 paragraph 1 letter b) and Article 6 paragraph 1 letter d) of the EU Regulation 2016/679 (the GDPR/General Data Protection Regulation). The controller for the data collection is NOS, represented by the private limited company Nord-Schrott Verwaltungsgesellschaft mbH, which is represented in turn by its managing director.
The data protection officer is Mr. Joachim Harms-Abildgaard (email@example.com). The recipient of the data is NOS (firstname.lastname@example.org).
The data will be stored for the duration of the retention periods under commercial law and tax law. The data subject has a right to information in respect of NOS for the personal data. In addition, he or she is entitled to correction, deletion or limitation of processing. Furthermore, this person is entitled to object to the processing and is entitled to data transferability. This person is entitled to submit a complaint to a supervisory authority. The provision of personal data is required by law, in so far as the materials that are the subject matter of the contract are shipped across national borders and, in the context of the shipment, information on a contact person at the Buyer is required, or in so far as NOS pays in cash for the materials that are the subject matter of the contract and by virtue of the German Money Laundering Act is obliged to verify identities.
In other respects, the provision of data for the entering into of a contract is necessary in order to ensure that deliveries from suppliers or to the Buyer are coordinated. The statutory and contractual requirements place NOS - not the data subject himself or herself - under an obligation. If the personal data of the data subject were not provided then - in the case of statutory obligations relating to the information - the fulfilment of the contractual obligations would not be legally permissible and NOS would not enter into a contractual relationship.
The data subject has the right to not be subjected to a decision that is solely based on automated processing (including profiling) that has legal consequences for him/her or that is significantly detrimental to him/her in a similar way. This does not apply if the decision is necessary in order to enter into or perform a contract between the data subject and NOS or if the decision is permissible by virtue of legislation of the European Union or its member states that the controller is subject to and this legislation contains appropriate measures to safeguard the rights and freedoms and the justified interests of the data subject or else takes place with the express consent of the data subject.
Decisions that are solely based on automated processing (including profiling) are not permissible either when they are based on special categories of personal data in accordance with Article 9 paragraph 1 GDPR, provided that Article 9 paragraph 2 letter a) or letter g) does not apply and appropriate measures to safeguard the rights and freedoms and the justified interests of the data subject were taken.
Article 11 Place of jurisdiction and applicable law
1. These AVB and the contractual relationship between NOS and the Buyer are governed by the laws of the Federal Republic of Germany, to the exclusion of international uniform law and in particular of the United Nations Sales Convention (the UN Convention on Contracts for the International Sale of Goods).
2. f the Buyer is a businessperson within the meaning of the HGB (German Commercial Code) or is a legal entity under public law or a separate fund under public law then the place of jurisdiction - including internationally - for all disputes arising directly or indirectly from the contractual relationship is our principal place of business in Flensburg.
However, in all cases NOS is also entitled to institute legal proceedings at the place of performance of the delivery obligation by virtue of these AVB or of an overriding individual agreement or at the Buyer's general place of jurisdiction. This does not affect overriding legal provisions, especially those relating to exclusive jurisdictions.