This document details the terms and conditions of trade when doing business with Delta Shelving Systems GmbH. Unless specified otherwise by Delta Shelving Systems GmbH, these terms apply for all customers outside of Australia and New Zealand.
1.1 In these conditions:
1.1.1 Company means Delta Shelving Systems GmbH. (AG Jena HRB 509243);
1.1.2 Customer means the person, firm or company ordering or buying the Goods from the Company, including through the EXPRESSIT® system;
1.1.3 EXPRESSIT means the online ordering system operated by the Company allowing Customers to purchase Goods from the Company; and
1.1.4 Goods means all goods or services offered for sale by the Company to the Customer including but not limited to Wire Decking and Backing Systems.
2 Application of these Conditions of Trade
2.1 These Conditions of Trades govern all supplies of Goods by the Company to the Customer, including when the Customer places an order using EXPRESSIT. All other terms and conditions, express or implied, are excluded to the fullest extent permitted by law, including any terms and conditions sought to be imposed by the Customer.
2.2 These conditions take precedence over any conditions set out in any communication or document of the Customer regardless of the date or time of such communication or document, unless otherwise agreed by the Company in writing.
3 Offer and acceptance
3.1 Any marketing material, price list, quotation or tender given to the Customer by the Company, and the availability of EXPRESSIT, is not an offer from the Company to sell the Customer Goods. It is merely an invitation for the Customer to place an order with the Company.
3.2 The Company reserves the right to correct any obvious errors in any marketing material, price list, quotation or tender, whether technical or otherwise. Furthermore the Company reserves the right to make any changes to the specification of the Goods which are required to conform to any applicable statutory requirements or, where the Goods are to be supplied to the Customer’s specification, which do not materially affect their quality or performance.
3.3 Each order placed by the Customer must be accepted by the Company and unless and until that time an order does not give rise to a binding commitment. The Company is not obliged to accept any order from the Customer. The Company may accept the order by written confirmation or by delivery and in the case of delivery, only as to the portion of the order actually delivered. If an order is accepted, the Company will carry out the order and the Customer must pay for the Goods in accordance with these Conditions of Trade.
4.1 The price payable by the Customer for each of the Goods supplied is the price set out in any quotation or tender given to the Customer by the Company, or if no quotation or tender is given then in the price list published by the Company, and in the case of an order made using EXPRESSIT is the price published by the Company on EXPRESSIT, as at the date the order is accepted by the Company, unless otherwise agreed.
4.2 Prices do not include VAT any shipping charges or costs of insurance or other Government duties or imposts. Each of these is payable by the Customer and if paid by the Company, the Customer must reimburse the Company on demand.
4.3 Unless otherwise stated, prices are in EURO.
4.4 The Company reserves the right, by giving notice to the Customer at any time before delivery, to vary the price of the Goods to reflect changes in the costs to the Company which is due to any external factors beyond the control of the Company including but not limited to foreign exchange fluctuation, currency regulation, alteration of duties, changes in the cost of materials or other costs of manufacture.
5.1 Unless payment terms have been agreed with the Customer, all payments must be made by direct deposit, cash or bank cheque at the time of order acceptance.
5.2 Payment terms are subject to acceptance and approval of an application for account and validation of trade references and are strictly 28 days from the date of invoice.
5.3 The Company may charge the Customer a deposit (at the time of the order acceptance) of up to 100% of the purchase price of the Goods for Goods that are custom made or non standard sizes, or if the Customer and/or delivery address is outside UK or Europe.
5.4 If any payment amount the Customer owes to the Company is not paid by the due date then, without prejudice to any other right or remedy available to the Company:
5.4.1 All money the Customer owes to the Company becomes immediately payable despite any previously agreed credit terms or conditions;
5.4.2 The Company may suspend or cancel any undelivered orders to the Customer;
5.4.3 The Company may charge the Customer interest on any amount outstanding, commencing on the day after the due date for payment and ending on the date when the payment is received by the Company. The interest rate to be charged will be calculated daily at the rate of 8 percentage points above the official base interest rate per annum; and
5.4.4 The Customer will pay all collection costs including but not limited to bank and legal expenses and debt collection commissions incurred in obtaining payment for any amounts owing to the Company in respect of the Goods.
5.5 The granting of extended payment terms by the Company to the Customer will be at the Company’s absolute discretion and may be revoked at any time whereupon any and all amounts owing to the Company must be paid immediately.
5.6 The Customer will indemnify the Company against all costs and damages or loss which might arise for the Company from the fact that (a) the Customer is not properly registered as regards to turnover tax or similar tax; or (b) theCustomer provides information incorrectly or late to the Company or the authorities in the area of turnover tax or similar tax.
6 Delivery and shipping terms
6.1 Unless otherwise agreed by the Company in writing or in the Company’s order acceptance, delivery will be Ex Works (Incoterms 2010 EXW).
6.2 Any times quoted for delivery are to be treated as estimates only, involving no contractual obligations unless a guarantee in writing has been given by the Company for the delivery on a specific date.
6.3 The Company reserves the right to make a reasonable charge for storage if Ex Works Goods are not collected or delivery instructions are not provided by the Customer within 7 days of a request by the Company for such information.
6.4 If the Customer fails to accept delivery on the due date, they shall nevertheless make payment as if the Goods had been delivered. 6.5 In the event of any delay or further delay to the supply of Goods caused by something outside the Company’s reasonable control including but not limited to accidents, strikes, transport and shipping delays or stock shortages (force majeure):
6.5.1 the Company will not be liable for any damage or loss caused; and
6.5.2 The Company may rescind the relevant order.
6.6 Additional costs associated with delays in delivering the Goods on behalf of the Customer including but not limited to delays on site and demurrage will be charged to the Customer.
7 Passing of Risk
7.1 Risk in each order passes from the Company to the Customer at the time the Goods are ready for delivery or the Goods are delivered to a carrier or other bailee (whether named by the Customer or not) for transmission to the Customer. The Company will acknowledge the readiness of the Goods to the Customer in writing either by Email, Fax or Mail.
8 Loss or Damage in Transit
8.1 The Company is not responsible for any loss or damage to Goods in transit, but will render all reasonable assistance to the Customer in lodgment of claims on carriers in respect of such loss or damage. 8.2 Unless otherwise agreed in writing, the Company does not effect insurance on any Goods forwarded from the Company to the Customer, from the Company’s premises or from the Company’s suppliers.
9 Retention of Title
9.1 The Company remains the owner of all Goods the Company supplies to the Customer or on behalf of the Customer until the Customer has paid all amounts which are owing to the Company by the Customer.
9.2 Until the Customer becomes the owner of the Goods in accordance with clause 9.1:
9.2.1 The Customer holds the Goods as the Company’s agent and bailee and the Customer owes the Company a fiduciary duty in respect of the Goods;
9.2.2 The Customer must store them on the Customer’s premises separately from the Customer’s own goods or goods of any other person and in a manner which makes them readily identifiable as the Company’s Goods;
9.2.3 The Company may terminate the Customer’s right to resell the Goods immediately by written notice delivered to the Customer’s place of business; and
9.2.4 The Company may enter, by the Company’s employees or agents, on any premises where the Goods are situated, or where the Company reasonably believes them to be situated, and retake possession of the Goods, if the Customer defaults in paying any part of the price or associated charges for them or the Customer becomes or resolves to become subject to any form of insolvency or administration.
9.3 The Customer may re-supply the Goods to any person or entity before the Customer has paid all amounts which are owing to the Company provided that:
9.3.1 The re-supply is in the ordinary course of the Customer’s business;
9.3.2 All money received by the Customer for the Goods will be held by the Customer on trust for the Company; and
9.3.3 The Customer must either: (a) Pay the money immediately when it is received by the Customer; or (b) Deposit the money into a bank account and hold it as trustee for the Company.
9.4 The Customer’s permission to enter premises under clause
9.2.4 is irrevocable and the Customer agrees that the Company’s employees or agents may enter those premises at any reasonable time after default of payment by the Customer or before default if the Company believes a default is likely.
9.5 The Company will not be liable, in contract or in tort or otherwise, for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of any action taken under this clause 9.
10 Cancellation of Orders and Returns
10.1 The Company is not obliged to accept Goods returned by the Customer and may do so on terms to be agreed in writing in each individual case that may include a restocking and handling fee. The normal handling and restocking fee is 25% of the price of the returned Goods.
10.2 Orders cannot be cancelled except with the Company’s prior written approval and upon terms that will indemnify the Company against all losses and including adequate compensation.
10.3 Orders or balance of orders may be cancelled by the Company if the Customer fails to adhere to the terms of the contract or if the Company suspects the credit worthiness of the Customer.
11 Sale by Specification
11.1 The Customer must ensure that the Goods are suitable for the purpose intended before using the Goods for those purposes. Except to the extent expressly specified by the Company in writing, the Company sells the Goods by specification and the Customer decides for what purpose to use or re-supply the Goods. The Company shall not be liable for the Goods being fit for the particularpurpose unless otherwise agreed upon, to which the Customer intends to put them. To the extent the Company expressly specifies in writing a purpose for which the Goods are suitable, the Company sells the Goods for use only as specified for that purpose. The Company is not liable for any loss or damage caused by persons seeking to fit unsuitable Goods.
11.2 If the Goods are to be manufactured or any process is to be applied to the Goods by the Company in accordance with a specification submitted by the Customer, the Customer shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual rights of any other person which results from the Company’s use of the Customer’s specification.
12 Warranty and Limitation of Liability
12.1 The Customer shall examine the Goods as required by German law (§ 377 of the German Commercial Code) and in doing so check every delivery in any respect.
12.2 Terms, conditions, warranties and guarantees implied by law which cannot be excluded, restricted or modified apply to the supply of the Goods to the extent required by that law.
12.3 The Company excludes to the extent permitted by law all other terms, conditions, warranties and guarantees might be implied into a contract by the Customer.
12.4 The Customer does not rely on any representation, warranty, guarantee or other provision made by or for Company which is not expressly stated in any contract between the Company and the Customer.
12.5 To the extent permitted by law, the Company’s liability for a breach of contract, breach of statutory duty, negligence or other tort in relation to the supply of the Goods, is limited at the Company’s option to:
12.5.1 In respect of goods: (a) the replacement of the goods or the supply of equivalent goods; (b) the repair of the goods; (c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (c) the payment of the cost of having the goods repaired;
12.5.2 In respect of services: (a) the supplying of the services again; or (b) the payment of the cost of having the services supplied again.
12.6 Except as otherwise provided in this clause 12, the Company will not be liable for any indirect or consequential loss or damage, loss of profit or loss of revenue whether suffered or incurred by the Customer or another person or legal entity, irrespective of whether such loss or damage arises directly or indirectly from the Goods supplied by the Company to the Customer.
13 Choice of Law, Place of jurisdiction
13.1 These Conditions of Trade as well as any contracts between the Parties shall be governed by and construed in accordance with the laws of the Federal Republic of Germany without it’s regulations on the conflict of laws. The Vienna Convention on the International Sale of Goods (CISG) shall be inapplicable.
13.2 Each party agrees to submit the jurisdiction of the courts having jurisdiction for the Company. The Company shall have the right to bring a claim before a court at the Customer’s principal place of business or at his discretion before any other court being competent for the place of performance of the obligation in question.
14.1 These Conditions of Trade may be changed by the Company from time to time by the Company giving notice of the change to the Customer. Notice is deemed given (whether or not actually received) when the Company does any of the following: (a) sends notice of the change to the Customer at any address (including an email supplied by the Customer; (b) or publishes the amended terms and conditions on the Company’s website or on EXPRESSIT.
14.2 In these Conditions of Trade: (a) a reference to a statute or regulation includes all statutes and regulations consolidating or replacing it; and (b) a reference to a statute includes all regulations issued under that statute.
14.3 The German text of these Conditions of Trade is the original text. In the event of any translation and differences in interpretation, the German original version will prevail.
14.4 If any of the provisions of these Conditions is null and void or should otherwise not be binding, all the other provisions will continue to apply and the provision concerned will be applied as much as possible in accordance with its import without violating the law.