General terms and conditions
Status: September 2021
- These Terms and Conditions of Delivery and Payment (hereinafter also referred to as “GTC”) shall apply to all our business relations with our customers, insofar as they are entrepreneurs (§ 14 BGB), legal entities under public law or special funds under public law within the meaning of § 310 para. 1 BGB (German Civil Code). They do not apply to consumers (§ 13 BGB).
- Our GTC apply exclusively. Any terms and conditions of the Buyer that conflict with or deviate from or supplement our GTC shall not become part of the contract unless we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer’s General Terms and Conditions.
- Individual agreements made with the Buyer in individual cases (including collateral agreements, amendments, supplements and deviations) from these GTC shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
- Unless otherwise agreed, these General Terms and Conditions shall apply in the version valid at the time of the Buyer’s order or, in any case, in the version most recently communicated to him as a framework agreement also for similar future contracts without our having to refer to them again in each individual case.
- Our offers are subject to change and non-binding. Orders shall only become binding if we have confirmed them in writing within a period of 14 days. Our written order confirmation shall be decisive for the content and scope of the contract. Ancillary agreements with commercial agents and employees as well as amendments, supplements, etc. require our written confirmation.
- The agreed prices shall be subject to the statutory value added tax applicable on the date of delivery.
- The weights, numbers of items and quantities determined by us shall be decisive for the calculation if the buyer does not object immediately after delivery or inspection.
- In the case of orders with delivery periods of more than 2 months or in the case of annual contracts or other framework contracts or price agreements with a term of more than two months, we shall be entitled to increase or reduce the agreed prices accordingly insofar as significant changes in salary, material, energy or raw material costs or other cost elements have occurred after conclusion of the contract and we are not responsible for this change. If it is a price increase, it will not be greater than 10%. Furthermore, in the event of a price increase, we shall explain which cost elements have changed and how this has affected the total price; we shall also only implement a price increase at all if and to the extent that the cost increases for individual cost elements cannot be offset by any cost reductions for other cost elements.
IV. Application technology consulting
- Insofar as we provide consulting services in connection with the delivery of goods, this shall be done to the best of our knowledge and shall not be binding and we shall not provide any warranty in this respect.
- All data and information on the suitability and application of the delivered goods do not exempt the purchaser from carrying out his own tests and trials. This shall apply in particular if thinners, hardeners, additional coatings or other components are added to the goods supplied by us, if the goods supplied by us are applied to pre-treatment products (e.g. primer, filler) or if finishing products (e.g. clear coat) are applied to the goods supplied by us, which in each case were not purchased from us. In particular, the Buyer shall also conduct its own tests and trials if sampling has previously taken place and the Buyer wishes to deviate from the materials used therein and/or the manner of their application.
V. Delivery Period, Transfer of Risk, Partial Deliveries and Force Majeure, Delay in Delivery
- Unless a delivery period is agreed individually, the delivery times stated by us (e.g. in order confirmation) are non-binding. However, two weeks after exceeding a non-binding delivery date or a non-binding delivery period, the Buyer may request us in writing to deliver within a reasonable period of time. Insofar as a delivery period has been agreed, it shall commence upon receipt of the order confirmation, but not before clarification of all details of the order execution and technical questions as well as receipt of any agreed down payment or payment security. An agreed delivery period or an agreed delivery date shall be deemed to have been complied with if the goods have been loaded onto the means of transport provided by the Buyer by the expiry of the period or by the date. If shipment is delayed through no fault of our own, the delivery period shall be deemed to have been met upon notification that the goods are ready for shipment.
- If the Buyer is in default with the acceptance of the goods (e.g. if he does not provide the means of transport in time) or if he fails to cooperate, we shall be entitled (without further reminder or further offer) to choose to ship the goods at the Buyer’s expense or – if not otherwise possible, if necessary also outdoors – to store them at the Buyer’s risk. In this case we are not liable for the destruction, loss or damage of the goods. We are entitled to invoice the goods from the time of default. Furthermore, we shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g. reasonable storage costs).
- Our obligation to deliver is subject to timely and correct self-delivery by our suppliers, unless the incorrect or delayed self-delivery is our fault or we have assumed a procurement obligation. We will inform the purchaser immediately if the delivery item, or the preliminary products, are not available on time. In such cases, we may withdraw from the contract; the Buyer shall then be reimbursed immediately for any consideration already paid.
- The risk of accidental loss and accidental deterioration shall pass to the Buyer in accordance with FCA Shipping Point (Incoterms® 2020), even if we have exceptionally assumed other services, e.g. the shipping costs or the organization of the shipment.
- Partial deliveries which are reasonable for the buyer are permissible.
- In the case of individual productions for our customers, we are entitled to exceed or fall short of the agreed delivery quantities by 5 kg for a delivery quantity < 50 kg and by 10% for a delivery quantity > 50 kg. These quantity deviations do not constitute a defect.
- Events that were not reasonably foreseeable, unavoidable and beyond our control at the time the contract was concluded (e.g. force majeure, operational disruptions, difficulties in procuring materials and energy, transport delays, shortages of labor, energy and raw materials, official measures and difficulties in obtaining permits for which we are not responsible, e.g. import and export licenses, embargoes, strikes and lockouts, etc.) shall result in an extension of the delivery period by the duration of the disruption. e.g. import and export licenses, embargoes, strikes and lockouts, etc.), which result in our not being able to deliver on time, shall lead to an extension of the delivery period by the duration of the disruption and its effects. We shall have a duty to notify the Buyer both of the occurrence, the expected duration and the end of such event. This shall also apply if the disruption occurs at our supplier or during an existing delay and we are not responsible for our own lack of performance due to this. If the disruption is not only of temporary duration, both contracting parties are entitled to terminate or withdraw from the contract. Claims for damages are excluded in the cases mentioned in this clause 7.
- If the delivery is made in returnable containers, these must be returned within 90 days of receipt of the delivery, emptied and freight paid. Loss of and damage to a loan package shall be borne by the purchaser if this is his responsibility. Loan packaging may not serve other purposes or to hold other products. They are intended only for the transport of the delivered goods. Labels must not be removed.
- Disposable packaging will not be taken back by us, instead we will name a third party to the buyer who will recycle the packaging in accordance with the Packaging Ordinance.
- In the event of a delay in delivery, our liability in the case of simple negligence shall be limited to 0.5% per full week of delay, but in total to a maximum of 5% of the net invoice amount of the part of the delivery affected by the delay. The claim for damages in lieu of performance pursuant to Section 8 shall not be affected thereby, nor shall our liability pursuant to Para. IX. The buyer shall inform us of any contractual penalties agreed with his customer at the latest upon conclusion of the contract.
- The invoice amount is to be paid to our bank account within 30 days after receipt of the invoice without any deductions. Decisive for the timeliness of the payment is the irrevocable receipt of payment on our account. However, we shall be entitled at any time to make a delivery only against advance payment; we shall declare a corresponding reservation at the latest with the order confirmation.
- In the event of late payment, we shall charge interest on arrears at the statutory rate. Both we and the purchaser shall be at liberty to prove higher or lower damages caused by the delay. With respect to merchants, our claim to the commercial due date interest (§ 353 HGB) shall remain unaffected.
- The retention of payments and the offsetting with counterclaims by the buyer is only permissible insofar as his counterclaims are undisputed or have been legally established.
- A delay in payment or other circumstances which indicate a significant deterioration in the financial circumstances of the purchaser after conclusion of the contract entitle us to immediately call due all our claims based on the same legal relationship. Furthermore, in accordance with the statutory provisions, we shall be entitled to refuse performance and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB).
VII Retention of title
- We retain ownership of the delivery item until the purchase price has been paid in full. Until the fulfillment of all claims from the current business relationship with the buyer, the delivered goods remain our property. The retention of title shall remain in force even if individual claims of ours have been included in current accounts and the balance has been struck and acknowledged. Purchase price claims shall be deemed not to have expired despite payment for as long as a liability under a bill of exchange assumed by us in this connection – such as, for example, within the framework of a check/bill of exchange procedure – continues to exist.
- Any processing, mixing or combining shall be carried out by the Buyer on our behalf without any liability arising therefrom for us. In the event of processing, mixing or combining with other items that do not belong to us, the purchaser shall already now transfer to us co-ownership of the new item in the ratio of the value of the reserved goods to the other processed items as security for our claims, with the proviso that we shall be deemed to be the manufacturer and the purchaser shall keep the new item for us. If the property rights of third parties remain, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods.
- Until revoked, the Buyer shall be entitled to dispose of the products in the ordinary course of business and/or to process, mix or combine them as long as it meets its obligations under the business relationship with us in due time.
- Claims against third parties arising from the sale of goods to which we are entitled to ownership rights are hereby assigned to us by the buyer as security to the extent of our ownership share in the sold goods. If the Buyer processes, combines or mixes the delivered goods with a main item of a third party against payment, he hereby assigns to us as security his claims for remuneration against the third party up to the amount of the invoice value of the delivered goods. We accept these assignments.
- The purchaser remains authorized to collect the claim in addition to us. However, we undertake not to collect the claim ourselves as long as the purchaser duly fulfills his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to clause 8. If this is the case, however, we may demand that the purchaser inform us of the assigned claims and their debtors, provide all information required to collect the claim, hand over the relevant documents and inform the debtors (third parties) of the assignment. Furthermore, in this case we are authorized to revoke the buyer’s authority to further sell, etc., the goods subject to retention of title.
- The buyer is obligated to carefully store the reserved goods and to insure them against loss and damage at his own expense. He hereby assigns his claims from the insurance contracts to us in advance. We accept this assignment. The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The purchaser must inform us immediately in writing if he has filed an application for the opening of insolvency proceedings, if there is a creditor’s petition or insofar as third parties (e.g. seizures) have access to the goods belonging to us.
- If the value of the securities exceeds our claims by more than 20%, we shall release securities of our choice to this extent at the Buyer’s request.
- In the event of conduct by the Buyer in breach of the contract, in particular in the event of non-payment of the purchase price due, and also , as soon as the Buyer generally ceases to make payments and/or falls into financial difficulties, we shall be entitled, to the exclusion of the Buyer’s right of retention, to withdraw from the contract in accordance with the statutory provisions or instead to demand only the immediate provisional surrender of the entire goods subject to our retention of title. The purchaser’s right to dispose of the products subject to our retention of title and to collect the claims assigned to us shall then expire. A demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the purchaser does not pay the purchase price due, we may only assert these rights if we have previously set the purchaser a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.
- Insofar as the retention of title should not be effective according to the law of the country in which the delivered goods are located, the buyer shall provide equivalent security at our request. If he does not comply with this request, we may demand immediate payment of all outstanding invoices without regard to agreed payment terms.
VIII. Claims for defects
- The buyer must inspect the goods for defects immediately upon receipt.
- Defects must be reported in writing immediately after receipt or inspection, unless the defect was not recognizable upon receipt or inspection. If such a defect becomes apparent later, it must also be reported immediately. In any case, obvious defects must be reported within five working days from receipt and non-obvious defects within the same period from discovery. The notification must be made in writing and must precisely describe the type and extent of the defect. If the purchaser fails to properly inspect the goods and/or notify us of defects, we shall not be liable for the defect that was not notified in time or properly in accordance with the statutory provisions.
- The buyer is obliged to inform us immediately and to give us the possibility of immediate examination if he wants to claim defects of the products delivered by us.
- In the event of subsequent performance, we shall be entitled to choose between rectification of defects or replacement delivery. Our right to refuse subsequent performance under the statutory conditions shall remain unaffected. We shall also be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due; the Buyer shall, however, be entitled to retain a reasonable part of the purchase price in relation to the defect.
- In the event of rectification of defects, we shall bear all expenses required for this purpose, insofar as these are not increased by the fact that the purchased item has been transported to a place other than the place of performance.
- We shall only be liable for compensation for consequential damages in accordance with para. IX.
- If we are not willing or able to remedy the defect or make a replacement delivery, or if this is delayed beyond a reasonable period for reasons for which we are responsible, or if the remedy of the defect or replacement delivery otherwise fails, the purchaser shall be entitled, at its option, to withdraw from the contract or to demand a reduction in the purchase price. However, in the case of an insignificant defect, there is no right of withdrawal.
- In the case of entrepreneurial recourse (§ 445a BGB), it shall be presumed that defects were not present at the time of the transfer of risk to the Buyer if the Buyer, in accordance with para. VIII. 2. (Sentence 1) has dutifully examined, but has not reported any defects, unless this presumption is incompatible with the nature of the item or the defect.
- If the purchaser asserts recourse claims, he must allow himself to be treated towards us as if he had implemented all legally permissible contractual options towards his contractual partner (e.g. refusal of subsequent performance due to disproportionality or limitation of the reimbursement of expenses to a reasonable amount).
- We shall be entitled to reject recourse claims of the Buyer with the exception of claims for new delivery of the goods, provided that we grant the Buyer equivalent compensation for the exclusion of his rights. We shall only be liable for compensation for consequential damages in accordance with para. IX.
- Claims of the purchaser for damages or reimbursement of futile expenses shall only exist in accordance with para. IX. and are otherwise excluded.
IX. General liability
- We shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence, as well as independently of intent or negligence: in the event of fraudulent concealment of defects, in the event of injury to life, limb or health or in accordance with the Product Liability Act in accordance with the law. In the event of an assumed warranty, we shall be liable in accordance with any warranty provisions.
- If there is no case of item 1, we shall only be liable in the event of simple negligence (subject to statutory liability limitations) in the event of a breach of essential contractual obligations, and this shall be limited to compensation for the foreseeable damage typical for the contract. Such an essential contractual obligation is an obligation the fulfillment of which makes the proper execution of the contract possible in the first place and the compliance with which the Buyer regularly relies on and may rely on and the breach of which jeopardizes the achievement of the purpose of the contract. In all other cases of ordinary negligence, our liability is excluded.
- We shall reimburse removal and installation costs incurred due to the replacement of the defective goods, unless we are not responsible for the defect.
- The limitations of liability resulting from clause 2. shall also apply to third parties as well as to breaches of duty by persons (also in their favor) whose fault we are responsible for according to the statutory provisions.
- Claims of the purchaser due to defects in delivered goods which are used for a building in accordance with their customary use and have caused its defectiveness shall become statute-barred in accordance with the statutory provisions; all other claims of the purchaser due to defects shall become statute-barred 12 months after the transfer of risk. All other claims shall become statute-barred after 12 months from the statutory commencement of the limitation period. Notwithstanding sentences 1 and 2 of this Section 5, (1) in the event of our liability due to the assumption of a guarantee, the guarantee provisions shall apply and (2) in the event of fraudulent concealment of a defect as well as in the event of claims for damages under the Product Liability Act, due to injury to life, body or health and due to intentional or grossly negligent breach of obligations as well as in the event of breach of cardinal obligations, the statutory provisions shall apply.
X. Place of performance, place of jurisdiction and miscellaneous
- The place of performance for all payments shall be our place of business in Endingen am Kaiserstuhl; the place of performance for all other services arising from the delivery contracts shall be our respective shipping point.
- The place of jurisdiction for all disputes with buyers who have their place of business within the EU, in Switzerland or in Great Britain is our place of business in Endingen am Kaiserstuhl. However, we are also entitled to bring an action at the general place of jurisdiction of the purchaser. If the Buyer has its place of business outside the EU, Switzerland and Great Britain, the following shall apply: All disputes arising out of or in connection with the supply relationship shall be finally settled in accordance with the Rules of Arbitration of the German Institution of Arbitration e.V. (DIS) to the exclusion of the ordinary courts of law. The place of arbitration is Freiburg in Breisgau, Germany. The language of the arbitration proceedings shall be German; the applicable law in the matter shall be German substantive law. However, in the case of claims for payment of the purchase price, we shall also be entitled to invoke ordinary jurisdiction in accordance with sentences 1 and 2 of this clause 2.
- The law of the Federal Republic of Germany shall apply to the contractual relations with our customers.
- The buyer agrees that his data will be stored and processed by us as far as this is necessary for the proper handling of the contractual relations.