in business dealings with corporate entities according to BGB (German Civil Code) §310 para. 1
§1 GENERAL TERMS AND SCOPE
Our terms and conditions apply exclusively. We shall not acknowledge terms and conditions of our customer (the Customer) in conflict or deviation with our own terms unless expressly agreed in writing. Our terms and conditions shall also apply if we have executed a delivery to the Customer without objection in the awareness of the Customer’s terms and conditions in deviation from our own.
All agreements made between us and the Customer shall be set down in writing in the mutual interest of both parties to avoid ambiguity. Any other contractual conditions or terms declared by the Customer shall be regarded as rejected until we have agreed to such terms and conditions in writing.
These terms and conditions shall apply to corporate entities according to BGB (German Civil Code) §310 para. 1.
§2 PRICES AND PAYMENT
Unless otherwise agreed in an individual contract, the purchase price shall be due for payment net without deductions within thirty days of the billing date. Statutory provisions on late payment shall apply.
A 2% discount shall be granted for payments made within 14 days. This shall not apply to bills amounting to a total of up to €50.00 plus statutory VAT.
The weight of the goods on dispatch shall apply in calculating the price.
We shall only accept bills of exchange or cheques for the purposes of processing, and bills of exchange on prior arrangement. We shall not bear responsibility for timely submission or objection. The costs of discount charges and other charges shall be borne by the sender.
We may demand advance payment or collateral before delivery for justified reasons, in particular in the case of payment default, protested cheques or bills of exchange, or insolvency proceedings filed against the assets of the Customer. In these cases, all of our claims, including those issued for bills of exchange, shall be due for immediate payment.
The Customer shall only be entitled to set off counterclaims that have been confirmed by litigation, or counterclaims that we have acknowledged or not disputed. The Customer shall only be entitled to retain payment where the counterclaim is based on the same contractual relationship.
§3 APPLICATION CONSULTANCY
We shall provide any consultancy services to the best of our knowledge. Any specifications or information on the suitability and application of the goods supplied shall not absolve the Customer from its own obligation to perform its own tests and trials. This shall especially apply in the case of added diluents, hardeners, additional coatings or other components not purchased from us.
§4 DELIVERY PERIOD
The beginning of the delivery period requires that any technical issues have been settled.
Compliance with our delivery obligations shall also require the Customer’s timely and proper fulfilment of its own obligations. We reserve the right to objection due to unfulfilled contract.
In the case of force majeure, our delivery and performance obligations shall be delayed by the period for which the circumstances beyond our control persist in preventing performance. The same shall apply to utility and raw material shortages, labour disputes, official decrees, traffic disruptions, or operational malfunctions hindering timely delivery, including such cases affecting our suppliers.
We shall be entitled to compensation for any damages incurred, including additional expenses, if the Customer should default on acceptance or should culpably violate other contributory obligations. We reserve the right to assert further claims.
If the conditions as described in para. 4 should apply, the risk of accidental loss or deterioration of the goods shall be transferred to the Customer at the time at which the Customer falls into default on acceptance or payment.
We shall be liable according to the statutory provisions if the respective sales contract includes a drop-dead date according to BGB (German Civil Code) §286 para. 2 No. 4 or HGB (German Commercial Code) §376. We shall also be liable according to the statutory provisions for any delay for which we are responsible, where the delay causes a justifiable claim by the Customer to the cessation of interest in further fulfilment of the order.
We shall also be liable under the statutory provisions for any delay in delivery due to breach of agreement caused by intent or gross negligence on our part. We shall also be held responsible for breach by our representatives or vicarious agents. Our liability shall be limited to predictable or typical damages in the event of a delivery delay not due to deliberate breach of agreement on our part.
We shall also be liable under the statutory provisions where the delivery delay is due to culpable breach of a cardinal obligation in the agreement on our part. This liability shall be limited to predictable and typical damages.
Further legal claims and rights of the Customer shall remain unaffected.
§5 SCOPE OF SUPPLY
We kindly request your understanding that volumes and weights may for production reasons undercut or exceed those ordered by up to 10%. The amount billed for will naturally be the amount dispatched.
Partial deliveries shall be permitted as long as this does not pose undue burden on the Customer.
§6 TRANSFER OF RISK, PACKAGING
Unless stated otherwise in the order confirmation, the goods shall be delivered ex works according to INCOTERMS 2010. Deliveries at a net cargo weight of 100 kg shall be sent carriage paid to the border of the Federal Republic of Germany.
We shall not take back packaging for shipping or other packaging according to the packaging regulations with the exception of euro pallets. We shall however name a waste disposal company for the Customer to commission for recycling disposable packaging.
Even if free delivery has been agreed, the transport risk for our deliveries shall be transferred to the Customer once the goods have been transferred to the carrier or forwarder, or once the goods have left our plant or warehouse at the latest, or, in three-way business transactions, once the goods have left the plant or warehouse of our supplier. Transfer of risk shall take place on announcement of readiness to dispatch in the case of delayed goods shipment for reasons outside our sphere of influence. The Customer shall bear the costs of storage after transfer of risk.
Deliveries are made ex works according to Incoterms® 2010
§7 LIABILITY FOR DEFECTS
The guarantee rights of the Customer to claim for defects are conditional upon the Customer properly fulfilling its obligations to inspect and report any faults in the delivery according to HGB (German Commercial Code) §377.
If the goods should show defects, we shall either remedy the defect or deliver new goods free of defects at the discretion of the Customer. In the case of removal of defects, we shall bear all of the costs involved in removing the defects, in particular transport, travel, labour and material costs on condition that these costs have not increased due to a transfer of the goods to a location other than the place of performance.
If remedy fails, the Customer may demand withdrawal from the contract or reduction in payment due.
We shall be liable according to the statutory provisions if the Customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence committed by our representatives or vicarious agents. Liability shall be limited to predictable and typical damages except in cases of culpable of breach of agreement by intent on our part.
We shall also be liable under the statutory provisions for culpable breach of a cardinal obligations. This liability shall also be limited to predictable and typical damages.
Our liability for culpable injury to life, limb or health shall remain unaffected. This shall also apply to mandatory liability according to the German Product Liability Act (Produkthaftungsgesetz).
The Customer shall lodge any claims due to defects within twelve months after transfer of risk. The limitation period for recourse for deliveries according to BGB (German Civil Code) §478 and §479 shall remain unaffected, and shall amount to five years from delivery of the defective goods.
§8 JOINT LIABILITY
No further liability for damages beyond the terms under §6 shall be entertained regardless of the nature of the claim. This shall in particular apply to claims for damages due to culpa in contrahendo, other breaches of agreement, or claims for damage to property due to tort according to BGB (German Civil Code) §823.
Limits to or exclusion of our liability for damages shall also apply to the personal liability of our employees, staff, representatives and vicarious agents.
§9 RETENTION OF TITLE, PROTECTION
We shall reserve title to the goods delivered until the amounts billed from the supply contract have been settled in full. We may repossess the goods on breach of agreement by the Customer, in particular with respect to payment default. Repossession shall not constitute withdrawal from the contract unless expressly stated in writing. Seizure of goods by us shall always constitute withdrawal from the contract. After goods repossession, we may set the proceeds from the sale off from the Customer’s debts, less reasonable disposal costs.
The Customer shall treat the goods with care; in particular, the Customer shall insure them at its own expense against fire, water and theft. The Customer shall perform any maintenance or inspection work as necessary at its own expense.
The Customer shall immediately inform us in writing of any official or other third party seizure, enabling us to file a claim according to ZPO (German Code of Civil Procedure) §771. The Customer shall be held liable for the costs incurred if the third party is not able to refund us for judicial and extrajudicial costs of action according to ZPO (German Code of Civil Procedure) §771.
The Customer may resell the goods in the ordinary course of business, but shall in so doing assign all claims amounting to the final bill amount of our claim (including statutory VAT) to us as accrued from further sale of the goods to the Customer’s Customers or third parties regardless of whether the goods have been resold with or without further processing. The Customer shall also be authorised to collect this claim after assignment. Our right to collect the claims shall remain unaffected. We shall not collect the claim as long as the Customer meets its payment obligations from the proceeds, is not in default on payment, has not filed for insolvency, and has not suspended payment. This being the case, we may demand that the Customer disclose the assigned claims and their debtors, provide all information necessary for collection, submit the relevant documents and inform the debtors (third parties) of the assignment.
We shall release the collateral due to us at the request of the Customer where the realisable value of the collateral should exceed the claims secured by more than 10%. The selection of collateral to be released shall remain at our discretion.
§10 CONFIDENTIALITY, PRIVACY
The Customer shall maintain confidentiality on any information identified as confidential of which the Customer should become aware as part of the business relationship. The Customer shall not disclose such information or make it available to third parties without our written consent.
We shall store and process data from the Customer to the extent necessary in the proper management of our contractual relationship. The Customer consents to the above with immediate effect as of now.
§11 COURT JURISDICTION, APPLICABLE LAW, PLACE OF PERFORMANCE
The courts at our registered office shall have exclusive jurisdiction. However, we reserve the right to litigate at the Customer’s place of business.
The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Unless otherwise stated in the order confirmation, our registered office shall also be the place of performance.