General Terms and Conditions of Business – as at 30 July 2018 –
Our quotations are subject to change. We shall only regard orders and verbal agreements as binding if and insofar as we have confirmed them in writing or by way of a form, or if we comply with them by delivering the goods or sending the invoice.
Deviations from our terms and conditions of sale, particularly the purchaser’s terms and conditions, shall only be valid if we have confirmed them in writing.
2. Price calculations
Calculations shall be based on the weight upon dispatch and the prices applicable on the date of dispatch. Should these prices have increased since the date when the contract was concluded, the purchaser shall be entitled to cancel the order within 14 days of notification of the price increase. No entitlement to cancel will exist in the event of price increases due to an increase in freight rates or in the rate of value added tax.
The invoiced amount is due immediately upon receipt of the invoice and payable without deduction.
In the event of payment default, interest amounting to 9% above the applicable base rate will be charged on arrears.
Should we accept bills of exchange, the purchaser will be liable for discount and bank charges. We shall not accept liability for timely presentation and protest.
The purchaser may only offset against our claims or assert a right of retention if the counter-claim is undisputed or has been finally established in law.
Unless otherwise expressly agreed in individual cases, all quoted or selling prices are net, in addition to which value added tax payable at the statutory rate and the cargo handling charge will be billed separately. In the event of export deliveries, customs duty and other charges or other public levies may be added.
Failure to pay invoices due, despite an appropriate deadline having been set or other circumstances indicating a substantial deterioration of the purchaser’s financial circumstances after conclusion of the contract, will entitle us to claim immediate payment of all our accounts receivable arising from the legal relationships entered into on the basis of these General Terms and Conditions of Business.
4. Delivery and acceptance
Our delivery obligation will be suspended for as long as the purchaser is in arrears on any payment due. If the goods are to be accepted in stages within a specific period, acceptance must take place evenly over the entire period.
Should the delivery deadline be exceeded, the purchaser must initially set an appropriate period of grace in writing, unless said period of grace is waived due to a final and serious refusal to fulfil, or should special circumstances apply pursuant to section 281 (2) of the German Civil Code (BGB).
Should the purchaser be entitled to claim compensation due to delay or failure to perform, the level of such compensation claims shall be restricted to the losses typically arising in transactions of this kind.
Unforeseen operational disruptions, delayed deliveries or non-delivery by our suppliers, shortage of labour, power or raw materials, strikes, lockouts, difficulties in providing means of transport, traffic disruptions, official orders and events of force majeure shall relieve the party affected thereby of its obligation to supply or accept the goods, as the case may be, for the duration of and to the extent of such hindrance. Should delivery or acceptance be delayed by more than one month as a result, each party will be entitled to cancel the contract in respect of the quantity affected by the disruption to delivery or acceptance, to the preclusion of all further claims. However, this will only apply to the vendor if it has already informed the purchaser immediately of the non-availability of the service and immediately refunds the purchaser for any consideration that may already have been rendered.
Only the pre-packaging expressly identified on the invoice as returnable packaging will be taken back. A credit will be made to the pre-packaging account if we receive the pre-packaging back within a period of ninety days of the invoice date closed, unsoiled and undamaged, with carriage pre-paid and free of charge. If this deadline is exceeded, the purchaser will be invoiced for the returnable pre-packaging at its replacement value, payable immediately without deduction of a prompt-payment discount. If the pre-packaging is returned later, the pre-packaging payment will be credited, less a charge for wear and tear, depending on the condition of the containers returned.
6. Delivery/transfer of risk
The mode of shipment, packaging and transport route are subject to the dutiful discretion of the vendor. We shall endeavour to take account of the purchaser’s wishes. Any additional costs incurred as a result will be charged to the purchaser.
The risk shall pass to the client at the latest when the delivery item is handed over to the hauler, carrier or any third party otherwise designated to dispatch the goods (the beginning of the loading procedure is decisive here). If shipping or handover is delayed due to circumstances for which the client is responsible, the risk shall pass to the client from the day on which the delivery item is ready for shipment and the client has been informed about this by the vendor.
The client shall bear the storage costs after the transfer of risk.
7. Notices of defects
The purchaser must check immediately whether the delivered goods deviate from the quality contractually agreed and whether they are suitable for their intended purpose. If this check is not carried out, not carried out to the requisite extent or if any identifiable defects are not reported to us immediately, but no later than within 14 days of receipt of the goods, said goods will be deemed to have been accepted as far as such deficiencies are concerned. Concealed defects must be reported as soon as they are discovered, but no later than one year after dispatch of the goods from the shipping point. The period within which there is any entitlement to rectification of the defect will then end. Complaints must be made in writing, stating the order details and the invoice and dispatch numbers. Rejected goods may only be returned with our express consent.
After a complaint has been properly lodged and substantiated, the purchaser has the right to demand supplementary performance. We shall be entitled to decide whether to rectify the defect or to supply an item free of defects. The purchaser will only be entitled to other rights if we refuse to provide supplementary performance or this is unsuccessful or is unreasonable for the purchaser. Should the purchaser be entitled to claims for compensation due to the delivery of defective goods, the amount of compensation will be limited to the loss typically arising from transactions of this kind.
Complaints will not release the purchaser from its obligation to comply with the agreed terms and conditions of payment.
We are only liable for any damage incurred if this is based on the breach of an essential contractual obligation or wilful intent or gross negligence on our part or on the part of our legal representatives or vicarious agents. If an essential contractual obligation is breached due to simple negligence, our liability shall be limited to the foreseeable contractually typical damage. An essential contractual obligation is an obligation, the fulfilment of which allows the contract to be duly implemented at all or on the observation of which the client relies and may rely.
Any additional liability for compensation is excluded. Liability for negligent loss of life, personal injury or illness under the statutory provisions shall remain unaffected. This also applies to mandatory liability under the German Product Liability Act.
9. Purchaser’s duty to cooperate
We shall only accept liability for a product’s suitability for a specific purpose if the purchaser has provided us with all the requisite information relating to the intended purpose.
Any product advice provided by our staff prior to sale will not release the purchaser from inspecting our products for their suitability for the intended purpose or from observing our processing specifications.
We shall be entitled to withdraw from the contract if the purchaser is in default of payment despite any appropriate deadline we may have set, or should there be any substantiated doubt regarding the purchaser’s ability to pay or creditworthiness giving rise to concerns that enforcement of our payment claim is threatened by the purchaser’s lack of solvency.
11. Retention of title
We shall reserve title to the goods supplied to protect all the claims to which we are entitled in the current and future business relationship until the purchaser has paid all the amounts due.
Our title will include any new item created by processing the reserved goods. The purchaser will produce and store the new item for us subject to preclusion of its own acquisition of ownership. It will not acquire any claims against us as a result.
Should our reserved goods be processed with goods of another supplier, whose rights of ownership of the new item also subsist, we shall acquire co-ownership rights to the new item together with the other supplier, to the preclusion of the purchaser’s joint acquisition of ownership, at its full value (including added value), as follows:
- Our co-ownership share will correspond to the ratio of the invoiced value of our reserved goods to the total invoiced value of all jointly processed reserved goods.
- Should a residual amount initially not be included in the reservation of title because other suppliers have not included the value added by the purchaser in the reservation of title, our co-ownership share will be increased by said residual amount. However, should other suppliers also have extended their reservation of title to include said residual amount, we shall only be entitled to a proportion of it determined by the ratio of the invoiced value of our reserved goods to the invoiced values of the jointly processed goods of said other suppliers.
The purchaser hereby assigns its claims from the sale of the reserved goods taken from our current and future deliveries of goods, together with all subsidiary rights, in the amount of our ownership share to us as security, which we accept. For processing within the framework of a service contract the labour cost claim amounting to the proportional sum of our invoice for the jointly processed reserved goods is hereby assigned to us, which we accept.
Provided that the purchaser meets its obligations arising from the business relationship with us properly, it may dispose of the goods to which we have title in the ordinary course of business and collect the claims assigned to us itself. We shall be entitled to revoke this collection authorisation if the purchaser is in default of payment, despite any appropriate deadline we may have set, or should there be any substantiated doubt regarding the purchaser’s ability to pay or creditworthiness giving rise to concerns that enforcement of our payment claim is threatened by the purchaser’s lack of solvency.
Should the value of the security which we have been granted exceed our receivables by more than 20%, we shall upon the purchaser’s request release the security at our discretion.
12. Place of performance and place of jurisdiction
In the absence of any agreement to the contrary, the place of performance and place of jurisdiction for all rights and obligations of both parties to the contract arising from transactions of any nature will be Berlin.
Any modifications and amendments to this contract or the General Terms and Conditions must be in writing. This also applies to the waiver of the written form.
Insofar as the contract or these General Terms and Conditions contain any omissions, those legally effective provisions which the contracting parties would have agreed according to the economic objectives of the contract and the purpose of these General Terms and Conditions had they been aware of any omissions are considered to be agreed for filling these omissions.
The law of the Federal Republic of Germany will apply exclusively to contractual relationships with our clients. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG – “Vienna Purchasing Convention”) of 11 April 1980 is excluded.
© 2018 LANKWITZER PREMIUM COATINGS