General Terms and Conditions of Sale and Delivery
I - Scope
1- These General Terms and Conditions of Sale and Delivery shall apply to any and all business transacted with our customers or contract partners (hereinafter jointly referred to as 'Customer') even when not specifically referred to in subsequent contracts. Unless previously approved in writing, the incorporation of Customer's own terms and conditions of purchase or business shall not be admissible and is hereby expressly rejected. The foregoing shall apply even in those cases where Customer includes its own terms and conditions by reference, irrespective of any defensive and/or exclusive clauses that may be contained therein, irrespective of the time at which these competing terms and conditions were referenced by Customer, and irrespective of any failure on our part to object to such incorporation expressly.
2 - By accepting our goods and services, Customer will be deemed to have agreed to our Terms and Conditions as contained herein.
3 - Customer shall highlight any passages in its order that deviate from these Terms and Conditions.
II - Prices
1 - All prices will be quoted exclusive of value-added tax at the current legal rate.
2 - Unless stated otherwise in the relevant order confirmation, all prices will be quoted ex works.
3 - Prices may be changed whenever the conclusion of the contract and the agreed delivery date are separated by more than four months. In the event of payroll, raw-material, and other material costs as well as freight charges, customs duties, taxes, and excise charges increasing or being newly introduced between said time limit and the completion of a consignment, we shall be entitled to increase our prices at a rate conformable with said cost increases, even in those cases where a fixed price has been agreed. Customer shall be entitled to cancel a contract or order only if price increases exceed the increase in the general cost of living by a more than inconsiderable margin. Prices for deliveries to independent dealers, public-law bodies, and utility funds may be increased in conformance with the foregoing regulation whenever the conclusion of the relevant Contract and the agreed delivery date are separated by more than six weeks.
4 - Consignments will be deemed delivered to Customer and invoiced at the weights, numbers and quantities determined by us unless Customer objects without delay, and unless consignments are inspected for shortages without delay.
III - Application Counselling
1 - We give application-related advice to the best of our knowledge. Any statements or representations we may make with regard to the use of our products and their fitness for a particular purpose shall not relieve Customer of its obligation to conduct its own tests and experiments to establish the fitness of our products for any intended process or purpose, unless such fitness has been expressly confirmed by us.
2 - Contractual requirements applying to our goods are defined in relevant product descriptions. Nevertheless, such statements regarding the quality of a product do not imply any warranty per se. Any warranties made by us must be expressly laid down in writing.
IV - Deliveries
1 - Unless otherwise agreed in writing, deliveries will be dispatched from our factory or our distribution warehouse.
2 - Where it has been agreed that a consignment will be picked up by Customer, risk of accidental loss or deterioration shall transfer to Customer on the date at which Customer is notified that the consignment is ready for shipment. Otherwise, said risk shall transfer to Customer upon tender of goods to the forwarder. Transport routes and carriers will be selected by us at our discretion. The extra cost of any modifications specified by Customer shall be borne by Customer.
3 - Within reasonable limits, deliveries may be broken down into installments.
4 - Delivery terms shall be prolonged automatically as long as any disturbance persists, including without limitation material and unforeseeable disruptions in our operations for which we are not answerable, delivery delays or failures on the part of our subcontractors, production disruptions caused by labour, energy, or raw material shortages, strikes, lockouts, difficulties in finding common carriers, traffic breakdowns, governmental action, and force majeure affecting us or our subcontractors, inasmuch as delivery of the goods in question is hampered thereby. Customer will be informed by us without delay about the onset and end of such obstacles. In the event of deliveries being delayed by more than one month, both parties shall be entitled to cancel without recompense that part of the contract which relates to the products affected by the delay.
5 - Any rented containers used in deliveries shall be returned free from residues and free of charge within 90 days after receipt of delivery. The cost of any loss or damage of rented packaging material still in transit shall be borne by Customer whenever Customer is answerable. Rented containers may not be used for any other purpose or for storing other products.
6 - While disposable packaging material may not be returned to us, we will provide Customer with the name and address of a company which will recycle packaging material in conformance with applicable legal regulations.
V - Payments; Arrears
1 - Unless otherwise agreed in writing, the total amount charged for the goods delivered and any extra services rendered will fall due upon delivery. Any delivery installments to which we may be entitled under a sales and purchase contract may be invoiced individually and collected on account.
2 - Agreed terms of payment shall commence on the date at which the goods in question are ready and/or dispatched, independently of the date at which the invoice is received by Customer.
3 - Orders, checks, and bills will be accepted only as conditional payment. Bills will be accepted only by written agreement. Bills will be accepted only against immediate cash payment of any bank discount and collection charges.
4 - As a general rule, cash discounts will not be granted. If in exceptional circumstances this rule should not apply, cash discounts shall be admissible only if no payment is outstanding from any other business transaction.
5 - At our discretion, we may credit payments received against Customer's prior debts.
6 - Only counterclaims that are either undisputed or legally enforceable may be offset by Customer against our demands.
7 - Whenever Customer fails to meet its obligations resulting from previous business transactions, or whenever part payments from such transactions are still outstanding, and/or whenever Customer's solvency appears in question, we shall be entitled to deliver any goods and/or services only after payment has been received.
8 - Payments shall be deemed duly received only when credited to our account.
9 - Customer shall be deemed to be in arrears whenever it fails to make payment on the due date laid down in the relevant Contract, or if it fails to pay in response to our demand for payment after the lapse of the payment term. The validity of the legal regulation which automatically places a debtor in arrears 30 days after the receipt of an invoice shall remain unaffected thereby.
10 - Upon default by Customer, we shall be entitled to claim interest on arrears in the amount of five percentage points above the lending rate or, alternatively, eight percentage points above the lending rate in the case of legal transactions which do not involve an end consumer. Our right to claim further damages will remain unaffected thereby.
VI - Retention of Ownership
1 - We will retain ownership in any goods or services delivered until such time as the purchase price laid down in the relevant Contract has been fully paid.
2 - Customer shall exercise due care in storing any goods in which we retain a security interest, and insure such goods against loss and damage at its own expense. Customer hereby assigns to us any future claims it may have under such insurance policies. We hereby accept this assignment.
3 - Our assertion of proprietary rights and distraint upon goods delivered shall not be construed as implying our withdrawal from the Contract unless any of the provisions laid down in Sect. 491 to 504 BGB apply, or unless we expressly declare our withdrawal from the contract in writing.
4 - Any reconfiguration or fabrication of goods will be implemented by Customer in our name. In the event of goods delivered by us being integrated in a product together with other goods that are not our property, we will acquire a share in the product thus generated in proportion to the market value of our goods relative to the market value of the other products included in the end product at the time of manufacture.
5 - In the event of our goods being integrated or blended with a product that is owned by a third party, Customer hereby agrees to assign to us by way of security any future claims it may have against said party in proportion to the price invoiced by us for the goods delivered. We hereby agree to such assignment.
6 - In the event of goods delivered by us being inextricably integrated with other objects that are not our property, we will thereby acquire a share in the product thus generated in proportion to the market value of the goods delivered by us relative to the market value of the other goods integrated therein. Customer will hold our share in such products in safekeeping.
7 - Customer may not pawn or pledge in security any goods delivered by us. In the event of such goods being distrained, impounded, or otherwise seized by third parties, Customer shall notify us promptly in writing, providing besides any information or documentation that we may require to defend our rights. Bailiffs and/or third parties shall be notified of our property rights. Managers of warehousing facilities shall be advised of our property rights before our goods are put into storage.
8 - We hereby undertake to release for disposal at Customer's request any collateral exceeding our claims by more than 20 percent in value.
9 - Where independent dealers, public-law bodies, or utility funds are concerned, the following rules shall apply:
Customer shall be entitled to resell any goods delivered by us in the course of its ordinary business provided that all debts are duly paid. However, Customer hereby assigns to us any and all future claims arising from such resale (inclusive of value-added tax), irrespectively of whether such goods are resold in a processed or unprocessed state. Customer shall be entitled to collect such claims after their assignment. While our right to collect such claims will remain unaffected by the foregoing provision, we hereby undertake not to collect such claims as long as Customer duly meets its obligations without getting in arrears. Should this happen, however, we shall be entitled to request Customer to notify us of any assigned claims and their debtors, submit any information required for the collection of such debts, surrender to us any and all relevant documentation, and notify debtors (third parties) of the assignment.
VII - Warranty; Liability
1 - Notice of defects falling under Sect. 377 HGB shall be given immediately. Obvious defects shall be reported within a preclusive time limit of eight days after delivery, while hidden defects shall be reported within three days after discovery. Such notifications shall include a description of the defect, which should be as detailed as possible. Complaints lodged orally or by telephone shall be supplemented within eight days by detailed explanations in writing.
2 - In the event of Customer using, applying, or processing defective goods, said goods shall be deemed accepted, and Customer thereby forfeits any claims arising from the defect or from other causes of whatever kind.
3 - Goods claimed to be defective may not be modified without our consent. Customer shall store such goods carefully in a safe place, keep them available for inspection, and surrender specimens at our request. Customer shall not be entitled to claim compensation for storage and other costs.
4 - If necessary, Customer shall conduct application tests to establish whether or not the goods supplied are fit for the purpose envisaged, especially in those cases where our products are blended with thinners, hardeners, paints, and other components not procured from us.
5 - In the event of a defect being established, Customer may retain any payments due us only to an extent commensurable with the scope of the defect.
6 - Defective goods will be replaced or, if possible, repaired at our discretion. Defective goods may be returned only with our consent. Rights under these warranty terms may only be claimed by our contract partners and are not assignable.
7 - Customer shall be entitled to reduce purchase prices or withdraw from the contract only if we should fail, for reasons for which we are answerable, within a reasonable term to be set by Customer, in our efforts to remedy defects under these Terms and Conditions by repairs, supplying additional goods, or procuring replacements or, alternatively, if our efforts under this heading should fail twice or, alternatively, if further delays should become unacceptable to either party.
8 - We will not be liable for any damage not expressly enumerated in these Terms and Conditions, including any damage that is unrelated to any of the goods delivered. However, we do accept liability for damage arising either from wilful or gross negligence on the part of our owners, executives, and agents, or from any non-performance of our contractual obligations for which we are answerable. In the latter case, however, we will accept liability only within typical and foreseeable limits.
9 - Furthermore, we do accept liability in cases in which personal injury is caused by defective goods delivered by us, or in which property is damaged by privately used objects. Similarly, we do accept liability for warranted-quality defects in those cases in which the warranty is intended to hold Customer harmless from any claims not based on defects in any of the goods supplied by us.
10 - Where independent dealers are concerned, the warranty term shall extend over 12 months after risk transfer. Where end consumers are concerned, legal warranty terms shall apply. In contracts with independent dealers, goods that are commonly used in buildings will be covered by a warranty term of 12 months applying to any defects that normally become evident within that period. In all other respects, the provisions of Sect. 438 BGB shall apply.
11 - Products that are used in conjunction with or have been blended with thinners, hardeners, paints, and other components not supplied by us will be covered by this warranty only if said components are free from defects and fit for their intended purpose.
VIII - Place of Jurisdiction and Fulfilment
1 - Our corporate domicile shall be the place of fulfilment for any and all obligations arising in conjunction with business in general or with the specific Contract.
2 - At our discretion, we may specify the courts either at our own corporate domicile or at Customer's corporate domicile as the appropriate place of jurisdiction, including any disputes about documents, bills, and checks.
3 - Par. 1 and 2 shall not apply to consumers in the definition of Sect. 13 BGB.
4 - Contractual relations with our Customers shall be governed only and exclusively by the laws of the Federal Republic of Germany. Any application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) is hereby excluded.