§ 1 Ambit
1. These general terms and conditions are valid only with regard to companies, legal entities of public law or separate assets subject to public law according to § 310 para. 1 BGB. We will acknowledge regulations to the contrary or deviating from our terms and conditions only in case we explicitly accept validity of these regulations in writing.
2. These terms and conditions are also valid for all future businesses insofar as these businesses are akin legal transactions.
§ 2 Offer and conclusion of contract
1. We will be bound for 10 days to our offers, except something different is shown separately in the offer.
2. If an order is considered as an offer according to § 145 BGB we can accept it within three days. A binding conclusion of contract comes off only after our acceptance in writing.
§ 3 Allocated Documents and Privacy
We reserve proprietary right and copyright for all documents left to the orderer in connection with the placing of orders, as for example calculations, drawings, etc. These documents may not be shown to third parties, unless we grant our explicit approval to the orderer in writing. If we do not accept the offer of the orderer within the period mentioned in § 2, these documents will have to be destroyed without delay.
§ 4 Prices and Payment
1. Our prices are ex works (EXW) including costs for disposable and transport packing and exclusive of value added tax, possible export and import duties and taxes in the country of arrival to the respective amount at the time of service, unless something elsa has been agreed in writing.
2. The payment of the purchasing price has to be carried out only to the account mentioned on the invoice. A cash discount is only allowed in case this has been agreed explicitly in writing.
3. The purchasing price is due immediately after delivery unless something else has been agreed in writing.
4. If the client is in default at the end of the payment term all open claims as well as all future claims will be payable immediately.
5. Interest of default will be charged to the amount of 9% over the respective annual base rate and a lump sum of 40.00 €. We reserve the right to enforce a higher damage of delay.
§ 5 Rights of retention
1. The orderer may execute the right of retention only in case if his counterclaim is based on the same contractual relationship.
2. In case of a default at the end of the payment term or an exceeding of the granted credit limit we reserve the right to hold back deliveries or to execute them partially until we receive the outstanding payments. If this is the case we guarantee to inform the orderer immediately about the not executed deliveries.
3. The orderer may execute set-off rights only in case if his counterclaim is based on the same contractual relationship or if these rights have been accepted undisputedly by us or they have been stated legally binding.
§ 6 Delivery time
1. The start of our mentioned delivery time postulates the punctual and correct fulfillment of the obligations of the orderer. The right of the exception of the not fulfilled contract remains reserved.
2. If the orderer faces a default of acceptance or he violates culpably other obligations to co-operate we are authorized to request a replacement of the loss occurred, including possible additional expenditures. We reserve the right for advanced claims. Provided that the conditions mentioned before are fulfilled the peril of accidental loss or accidental deterioration of the sales item is transferred to the orderer at the time he faced the default of acceptance or payment.
3. We shall be liable for any delay in delivery, that has not been induced willfully or wantonly negligent, to a lump-sum penalty payment of 3% of the value of the delivery for each completed week, yet not more than max. 15% of the value of the delivery.
§ 7 Dispatch, Payment of customs duty and transfer of perils
1. The subject and scope of dispatch and transfer of perils are governed by the terms of delivery confirmed by us after conclusion of the contract according to the Incoterms in the version of 2000.
2. Place of performance and place of the transfer of perils (EXW) is our place of business unless something else has been agreed. In this case transport and all customs duties are in the obligation of the orderer. If the goods are shipped to the orderer by his request, the orderer will have to pay for the actual transport charges at the time of dispatch. These transport costs are mentioned separately in the invoice. Place of performance and place of the transfer of perils remains our place of business.
3. We obligate ourselves to provide the orderer with all relevant information that are necessary for the handling of transport and customs - particularly Material Safety Data Sheets, declarations regarding the preferential origin of the goods and Certificates of Origin.
§ 8 Packaging
1. Reusable packaging - especially 600 l and 1,000 l Intermediate Bulk Container and Euro pallets - remain our property and have to be returned to us promptly and completely empty after having used the contained goods. If there are remaining quantities in the reusable packaging we may refuse acceptance or the remaining quantities will be disposed of by a waste management company at the expense of the orderer. In this case the orderer has the obligation to provide us with the Material Safety Data Sheets of the goods that need to be disposed of.
2. Other non-returnable package and packaging according to the Regulation on Packaging will not be taken back. The business partner has the obligation to dispose them of professionally at his own expense.
§ 9 Reservation of proprietary rights
1. We reserve the proprietary rights of the delivered goods until they have been fully paid. This will also apply for all future deliveries, even if we do not explicitly refer to this clause. We are able to take back the sales item in case the orderer acts contrary to the contract. A taking back of the sales item does not mean a cancellation of the contract, unless we explicitly stated this in writing. A distraint of the sales item automatically means a cancellation of the contract. After taking back the sales item we are authorized to use it; the proceeds of sales of the sales item will be charged with the liabilities of the orderer, less appropriate exploitation cost.
2. The orderer is intended to handle the sales item with care as long as the property has not devolved to him. As long as the property has not devolved to him the orderer has to inform us immediately in writing in case the delivered goods will be distrained or exposed to interventions of a third party. Insofar as the third party is not able to reimburse the judicial and extrajudicial costs of a lawsuit according to § 771 ZPO, the orderer will take full liability of our deficiency.
3. The orderer has the right to resale the paraphernalia in the normal course of business. The orderer cedes all claims towards the buyer of the resale of the paraphernalia to us to the amount of the grand total (incl. VAT) of the invoice. This cession applies irrespective whether the sales item was resold without or after using up. The orderer remains authorized to confiscate the claim also after the cession. Our right to collect receivables remains unchanged. Yet, we will not collect receivables as long as the orderer complies with his obligations to pay, is not in default at the end of the payment term and especially has not opened insolvency proceedings or has suspended payments.
4. The handling and using up or the transformation of the sales item by the orderer always happens on behalf of us, without obligations for our side.
5. In this case the expectant right of the orderer for the sales item continues. Provided that the sales item will be processed with other objects that are not our property, we acquire common ownership of the new item in relation of the objective value of our sales item to the other processed items at the time of processing. The same applies in case of a mixture. Provided that the mixture happens to the extent, that the product of the orderer can be seen as the main product, it is considered as agreed that the orderer assigns common ownership pro rata to us and keeps the thus created sole proprietorship or common ownership for us. To secure our claims against the customer, the customer shall also assign to us such claims accruing to him from combination of the goods subject to retention with real property against a third party; we already accept this assignment with immediate effect.
6. At the request of the customer, we undertake to release the securities to which we are entitled insofar as the realizable value of our securities exceeds the claims to be secured by more than 20%; we shall be responsible for selecting which securities to release.
§ 10 Warranty, Notice of Defects, Recourse, Manufacturer's Recourse
1. Warranty claims of the customer necessitate that the customer has fulfilled his obligations according to § 377 HGB (German commercial code, investigation and right to make a claim for defects).
2. If, despite all care taken, the delivered goods exhibit a defect that already existed at the time of transfer of risk, we will, at our choice, either repair the goods or supply replacement goods, provided that the notice of defects was given in due time. In all cases, we must be granted the opportunity of subsequent fulfillment in accordance with the statutory regulations within an appropriate deadline. Recourse claims shall remain unaffected by the above regulation without restriction.
3. Claims asserted by the Purchaser on account of the expenditure required for rectification, in particular the cost of transportation, travelling, labor, and material, shall be ruled out in as much as such expenditure increases as a result of the object of delivery having been subsequently transported to a place other than the Purchaser's premises, unless such transportation complies with its intended use.
4. Warranty claims shall not apply in the case of merely insignificant deviations from the agreed characteristics, in the case of merely an insignificant detrimental effect on the practicability, in the case of damage occurring following the passing of risk as a result of faulty or negligent treatment, inappropriate storage, wrong application or wrong dosage. We would like to point out that slip emulsions, fountain solutions, auxiliaries and especially possible preservations are subject to a limited efficiency after a certain period of time. Unless otherwise clearly stated, consumables have to be used within 6 months after delivery. If changes of our formulations are carried out - especially by adding und mixing other materials - there will be no right to claim damages for any consequences that may occur.
5. We are liable according to legal provisions if the customer successfully asserts a claim for damages that are due to criminal intent or gross negligence, including those due to the criminal intent or gross negligence of our agents or auxiliaries. As far as we are not accused of willful breach of contract, our liability for claims for damages is limited to the foreseeable, typically occurring damage.
6. We shall be liable in accordance with the statutory provisions insofar as we culpably breach a material term of the contract; in this case as well, liability for damages shall be limited to the foreseeable typically occurring damage.
7. Liability owing to culpable injury to life, the body or health remains unaffected; this also applies for the mandatory liability according to the Product Liability Act.
8. Unless otherwise agreed to in writing, all other liability is expressly and specifically excluded.
9. Any claims for defects of the goods delivered are subject to a limitation period of 12 months. This shall not apply to claims to damages on account of culpable injury of life, limb and health or to claims to damage based on malice aforethought or gross negligence; in this case the judicial period of limitation applies.
10. The Purchaser shall retain a right of recourse against us insofar as the Purchaser has not agreed terms with its purchaser which exceed the statutory liability for defects. Regarding the scope of the right of recourse of the orderer against the supplier § 4 applies.
§ 11 Joint liability
1. Liability for damages other than that provided for in Section 10 is excluded, regardless of the legal nature of the claim, including but not necessarily limited to claims for damages due to negligence in connection with the acceptance of the order, other breaches of obligations or claims for damages to property pursuant to Section 823 German Civil Code (BGB).
2. As far as the liability for compensation against us is excluded or restricted, this shall be valid as well with respect to the personal liability for compensations of our employees, staff members, representatives and vicarious agents.
§ 12 Miscellanous
1. This contract, as well as the entire legal relationship between the parties, is subject to the law of the Federal Republic of Germany, to the exclusion of UN purchase law (CISG).
2. Place of fulfillment and sole court of jurisdiction for all disputes arising from this contract is our place of business, insofar as not otherwise agreed upon in the confirmation of order.
3. All agreements that are made between the parties for the purpose of the execution of this contract are stipulated in this contract.
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