GENERAL TERMS AND CONDITIONS
(1) Our Terms and Conditions of Sale shall apply exclusively; we shall not recognize any terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we make delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our Terms and Conditions of Sale.
(2) All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract together with the present GTC. Any agreements or supplements to these terms and conditions must be confirmed by us in writing in order to be valid.
(3) Our Terms and Conditions of Sale shall only apply to entrepreneurs within the meaning of § 310 para. 1 BGB. Our terms and conditions of sale shall also apply to all future transactions with the customer.
II Offer/Applicable Law
(1) Our offer is subject to change unless otherwise stated in the order confirmation.
(2)If we receive an order from a customer, which is to be evaluated as an offer according to § 145 BGB, we can accept it within two weeks after receipt.
(3) If the delivery is made abroad or if it is made with a foreign company, the legal relationship shall be subject to German law including the UN Convention on Contracts for the International Sale of Goods.
III Price – terms of payment
(1) Unless otherwise stated in the order confirmation, our prices shall apply “ex works”, excluding packaging, freight, postage and insurance.
(2) The statutory VAT is not included in our prices, it will be shown separately in the invoice at the statutory rate on the day of invoicing.
(3) We reserve the right to increase or reduce the prices in accordance with the cost changes that have occurred for contracts with an agreed delivery period of more than four months. If the increase is more than 5% of the originally agreed price, the customer shall have the right to terminate the contract.
(4) Unless otherwise stated in the order confirmation, the purchase price shall be due for payment without deduction within 30 days of the invoice date. The statutory provisions concerning the consequences of default in payment shall apply, and in particular we reserve the right to charge default interest in the amount of 8 percentage points above the base interest rate pursuant to § 247 BGB (German Civil Code).
(5) The deduction of a cash discount requires a special written agreement.
(6) The customer shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been acknowledged by us. Furthermore, he shall be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
(7) Bills of exchange and checks shall only be accepted on account of performance and only by agreement and subject to their discountability. A guarantee for the correct presentation of the bill of exchange and the raising of a bill protest is excluded.
(8) If, after conclusion of the contract, we become aware of facts concerning a significant deterioration in the contractual relationship which, according to prudent business judgment, are likely to jeopardize our claim to counter-performance, we shall be entitled to demand suitable security within a reasonable period of time until the time of performance incumbent upon us or performance only concurrently with the provision of counter-performance. If the customer does not comply with the justified request or does not comply with it in time, we may withdraw from the contract or claim damages instead of performance.
(9) If the customer is in arrears with a partial performance, we may declare the entire remaining claim due immediately and, in the event of a delay in performance caused by a significant deterioration in the customer’s financial situation, withdraw from the contract without a grace period or demand damages in lieu of performance.
IV Delivery time
(1) Compliance with our delivery obligation requires the timely and proper performance of our upstream suppliers and the customer. A procurement guarantee within the meaning of Sec. 276 para. 1 sentence 1 BGB we do not assume. Insofar as it is necessary for our delivery obligations that operating resources are sent to us beforehand, we reserve the right to withdraw from the contract in cases of fire damage, traffic congestion, interruption of the supply of energy and raw materials, orders of higher authorities and all consequences of force majeure. We undertake to inform the customer immediately about the non-availability and to reimburse any counter-performances made without delay.
(2) If a customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.
(3) Provided that the requirements of para. 3, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the time when the customer is in default of acceptance or debtor’s delay.
(4) We shall be liable in accordance with the statutory provisions insofar as the underlying contract is a transaction for delivery by a fixed date within the meaning of Section 286 (2). 2 No. 4 BGB or of Section 376 HGB. We shall also be liable in accordance with the statutory provisions if, as a consequence of a delay in delivery for which we are responsible, the customer is entitled to claim that its interest in the further performance of the contract has ceased to exist.
(5) We shall be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us insofar as they have acted with intent or gross negligence. Unless the delay in delivery is due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(6) We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
V Transfer of risk/transport insurance/packing
(1) The packages provided by us, insofar as they are not disposable containers, shall remain our inalienable property. We provide the customer with the containers free of charge for three months. After expiry of three months, they must be returned to our company carriage paid and in perfect condition.
(2) Since the delivery – unless otherwise agreed – is to be made “ex works”, the risk of accidental loss shall pass upon handover of the purchased item to a forwarding agent, a carrier or any other person or institution designated to carry out the shipment. In this respect, a delivery shall only be covered by transport insurance if the customer expressly requests this. The costs incurred in this respect shall be borne by the customer.
VI Liability for defects of quality and title
(1) The customer’s rights in respect of defects shall be subject to the condition that the customer has duly complied with its obligations to inspect the goods and to give notice of defects pursuant to Section 377 of the German Commercial Code (HGB).
(2) Insofar as there is a defect in the purchased item, the customer shall be entitled, at its discretion, to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In the event of rectification of the defect, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labor and material costs, 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.
(3) If the supplementary performance fails, the customer shall be entitled, at its option, to demand rescission or reduction.
(4) We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence on the part of our representatives or vicarious agents. As far as we are not accused of intentional breach of contract, the liability for damages is also limited to the foreseeable, typically occurring damage.
(5) We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(6) Insofar as the customer is entitled to claim compensation for damage instead of performance, our liability shall be limited to compensation for the foreseeable, typically occurring damage, also within the scope of (para. 3).
(7) Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.
(8) Unless otherwise stipulated above, liability is excluded.
(9) The limitation period for claims for defects is 12 months, calculated from the transfer of risk. The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it amounts to five years, calculated from the delivery of the defective item.
VII Retention of title
(1) We retain title to the purchased item until receipt of all payments under the delivery contract. In the event of conduct by the customer in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. The demand for return by us shall constitute a rescission of the contract. After taking back the object of sale, we shall be entitled to realize it; the proceeds of realization shall be credited against the customer’s liabilities – less reasonable costs of realization.
(2) In the event of seizures or other interventions by third parties, our customer shall notify us without delay so that we can bring an action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
(3) The customer may sell, mix and/or process the goods within the scope of his proper, usual business operations, however, he already now assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim against him, which accrue to him from the resale against his customer or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer is authorized to collect the assigned claims as long as he meets his payment obligations towards us. However, we shall be entitled to revoke such authorization and to require the customer to make payment to us vis-à-vis the third party if the customer fails to meet its payment obligations to us, in particular in the event of default in payment and cessation of payments. If this is the case, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors of the assignment.
(4) The retention of title shall also extend to the processing, mixing or combination of our goods resulting in products at their full value, in which case we shall be deemed to be the manufacturer. If, in the event of processing with goods of third parties, their right of ownership remains, we shall acquire co-ownership in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other processed items at the time of processing. If the processing, mixing or combination is carried out in such a way that the customer’s item is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership thus created in safe custody for us.
(5) The customer also assigns to us the claims to secure our claims against him which arise against a third party through the connection of the object of sale with a property.
(6) We undertake to release the securities to which we are entitled at the customer’s request insofar as the realizable value of our securities exceeds the claims to be secured by more than 10%. We shall be responsible for selecting the securities to be released.
IVV Total liability
(1) Any further liability for damages than provided for in clause 6 shall be excluded – irrespective of the legal nature of the asserted claim.
This applies in particular to claims for damages arising from fault for claims for damages arising from fault in the conclusion of the contract, due to other breaches of duty or due to tortious claims for compensation for property damage in accordance with § 823 BGB.
(2) The limitation according to paragraph 1 shall also apply insofar as the customer demands reimbursement of useless expenses instead of a claim for compensation for damage instead of performance.
IX Jurisdiction and place of performance
(1) If the customer is a merchant, our place of business shall be the place of jurisdiction; however, we shall also be entitled to sue the customer at the court of his place of residence.
(2) Unless otherwise stated in the order confirmation, our place of business shall also be the place of performance. The place of performance for the customer’s obligations is Essen.