GENERAL TERMS AND CONDITIONS OF SALE
— Version of 23 March 2016 —
Our quotations are without obligation. We shall only regard orders and verbal agreements as binding if and insofar as we confirm them in writing or by way of a form, or if we comply with their provisions by despatching the goods and invoice.
Deviations from our terms and conditions of sale, particularly the purchaser’s terms and conditions, will only be valid if we confirm them in writing.
2. Price calculations
The despatch weight and the prices applicable on the date of despatch will be crucial to calculation. Should there have been an increase in such prices since conclusion of the contract, the purchaser will 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 tariffs or in the rate of VAT.
Payment will be due 30 days after the date of issue of the invoice.
Interest amounting to 8% 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 will only have the right to offset counter-claims against our receivables or assert a right of retention if the counter-claim is undisputed or legally enforceable.
In the absence of any stipulation to the contrary in individual cases, all prices quoted and selling prices are net, in addition to which value added tax payable at the statutory rate must be itemised separately on the invoice.
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 concluded 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 of 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, 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 will be restricted to the losses typically arising in transactions of this type.
Unforeseen operational disruptions, failures to respect delivery times, non-delivery by our suppliers, insufficient workforce, a lack of energy or raw materials, strikes, lockouts, difficulties in procuring means of transport, traffic disruption, official orders and cases of force majeure will release the party concerned from the delivery or acceptance obligation for the duration of the disruption and to the extent of its effect. 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 refunded the purchaser for any return services already provided.
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.
All consignments will be conveyed at the purchaser’s risk. We shall choose the method of shipment and transport route, whereby we shall endeavour to take account of the purchaser’s wishes. Any additional costs incurred as a result will be charged to the purchaser.
7. Notification of defects
The purchaser must check immediately whether the delivered goods deviate from what was contractually agreed and that 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, despite such defects. Concealed defects must be reported as soon as they are discovered, but no later than one year after delivery of the goods from the place of dispatch. The period for 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 will be entitled to demand rectification. 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 rectify the defect, or if rectification has been 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 this type of transaction.
Complaints will not release the purchaser from its obligation to observe the agreed terms and conditions of payment.
8. Purchaser’s duty to cooperate
We shall only accept liability for suitability for a specific purpose of a product if the purchaser has provided us with all the requisite information relating to the intended purpose.
Any product consultation provided by our staff prior to sale will not release the purchaser from inspection of our products for their suitability for their anticipated purpose or from observance of our conversion requirements.
We shall be entitled to cancel the contract should the purchaser fall into arrears despite any appropriate deadline we may have set, or should there be any substantiated doubt regarding the financial solvency or creditworthiness of the purchaser giving rise to concerns that enforcement of our payment claim is threatened by the purchaser’s lack of solvency.
10. Reservation 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 converting 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 combined 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 acquisition of ownership by the purchaser, at its full value (including added value), as follows:
a) Our co-ownership share will correspond to the proportion of the invoice value of our reserved goods to the total invoice value of all combined reserved goods.
b) 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 co-ownership share to include said residual amount, we shall only be entitled to a proportion of it determined by the proportion of the invoice value of our reserved goods to the invoice values of the combined goods of said other suppliers.
The purchaser hereby assigns its receivables 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 proportion to us for safeguarding, which we accept. The labour cost claim for combination in the amount of the proportion of our invoice for the combined 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 an ordinary business transaction and collect the claims assigned to us itself. We shall be entitled to revoke the collection authorisation should the purchaser be in arrears of payment, despite any appropriate deadline we may have set, or should there be any substantiated doubt regarding the financial solvency or creditworthiness of the purchaser giving rise to concerns that enforcement of our claim for payment is threatened by the purchaser’s lack of solvency.
Should the value of the securities which we have been granted exceed our receivables by more than 20%, we shall release the securities at our discretion, on demand by the purchaser.
11. Place of fulfilment and court of jurisdiction
In the absence of any agreement to the contrary, the place of fulfilment and court of jurisdiction for all rights and obligations of both parties to the contract arising from transactions of any nature will be Berlin.
The law of the Federal Republic of Germany will apply exclusively to contractual relationships with our customers. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG — “Vienna Purchasing Convention”) of 11 April 1980 is precluded.