General Terms and Conditions of Sale and Delivery
Deliveries are made solely subject to the following Terms and Conditions of Sale and Delivery. The exceptional applicability of other terms and conditions – in particular the Customer’s Conditions of Purchase – requires an express prior written confirmation from our side.
Art. 1 Offer and acceptance
a) Our offers are subject to change. Orders shall only be deemed binding by us after and to the extent we have confirmed them in writing or started their execution. Written confirmation is also required for amendments, supplements, and verbal collateral agreements.
b) Supplementary remarks describing the goods such as “about the same”, “as previously supplied”, “as in the past” or similar remarks in our offers only relate to the quantity or to the quality of the goods, not, however, to the price. We shall understand such remarks in orders we receive from our Customers correspondingly, and if necessary a confirmation is meant as this.
Art. 2 Purchase price and payment
a) As a rule, our prices are quoted exclusive of statutory value-added tax.
b) The purchase price is payable net cash upon delivery of the goods, unless agreed otherwise.
c) We reserve the right to charge merchants and business operators interest on late payments from the due date, payable in the amount of 2% above the prevailing bank rate of the European Central Bank.
d) In case of default, we shall be entitled to assert further claims for damages caused by delay.
e) Bills of exchange and cheques shall only be accepted on account of performance; they shall be considered as payment after they have been honoured. Standard bank expenses shall be borne by the Customer.
f) The Customer shall only be entitled to offset in the case of receivables which are undisputed or have become res judicata. Merchants may withhold the purchase price due to material defects until we have decided if the claim is justified; other than that only if the Customer provides sufficient security. Non-merchants may not withhold the purchase price due to material defects from another contract other than the one from which the outstanding purchase price originates.
g) If the Customer is in arrears in paying an invoice for an amount significant to the business relationship, then all valid claims from the current business relationship become due immediately – irrespective of any acceptance of bills of exchange. We are further entitled to demand prepayments before effecting any further delivery. In the case of delays in payments within an appropriate period we shall exercise our right to rescind the agreement and claim compensation for default. This applies in particular to agreed further business which has not been executed yet. If facts become known about a deterioration in the financial situation of the Customer, we are authorized to claim cash before delivery, also contrary to different previous agreements, and we are entitled to invoice all accumulated claims.
Art. 3 Delivery
a) The agreed delivery periods and dates are always considered to be approximate unless a fixed date has been specifically agreed in writing.
b) For deliveries which do not come from our premises (drop shipment business), delivery dates and periods are considered to have been fulfilled if the goods leave the supplying location in time for them to reach their destination on time allowing for the usual shipping period.
c) Occurrences of force majeure – including public legal restrictions, strikes and lockouts – entitle us to withdraw from contracts. In such cases, no damages for breach of duty may be claimed. This also applies when, through no fault of our own, goods from our suppliers are late in arriving. We are obliged to inform the Customer about such events without delay. In such a case, the Customer may also exercise their right to rescind the agreement.
d) In the event of delayed delivery, the Customer shall be entitled to fix an appropriate period of grace and to withdraw from the contract upon unsuccessful expiry of said period. The Customer may claim compensation for non-fulfilment upon unsuccessful expiry of said period if the delayed delivery occurred as a result of wilful or grossly negligent conduct on the part of our legal representative or of one of our subcontractors.
Art. 4 Dispatch and acceptance
a) The transport risk from the site of delivery is always to be borne by the Customer. This also applies in cases where freight is prepaid or free domicile, except when we carry out the transport from our premises with our own vehicles.
b) By collection from the site of delivery, the Customer or their agent must load the vehicle and adhere to the legal requirements, particularly those concerning the transport of hazardous goods.
c) Unloading and storing the goods is always the responsibility of the Customer.
d) For deliveries in tankers and mounted tanks, the Customer is responsible for ensuring that their tanks or other storage containers are in technically perfect condition and is also responsible for the filling connections to their own storage system and, if necessary, ensuring that the recipient fulfils this obligation. Our obligations are limited to the operation of the delivery vehicle’s own equipment.
e) Insofar as our employees provide additional assistance, in the provisions b) and d) above, in unloading or discharging, and at this cause disadvantage, then these persons are deemed to be acting at the sole risk of the Customer and not on our behalf.
f) The aforementioned provisions apply accordingly in cases of delivery through third-party forwarding companies, insofar as their behaviour might give rise to any liability on the Vendor’s part. Any third-party liability shall remain unaffected.
Art. 5 Packaging
a) Insofar as our deliveries are carried out in loan packaging, these are to be returned to us the by the Customer no more than 3 months at the latest after their arrival at the Customer. The returned containers must be empty and in excellent condition and returned at the Customer’s cost and risk or, if applicable, be returned free our vehicle against confirmation of receipt.
b) If the Customer does not fulfil the obligation according to a) in due time, we are authorized to charge a suitable fee for the time exceeding 4 weeks. After then setting a deadline for return with no result, we are further authorized to demand the replacement price of the container – crediting the aforementioned fee.
c) Fixed labels and markings on packaging may not be removed. Loan packaging may not be exchanged or refilled. The Customer is held liable for deterioration of value due to substitution or loss, irrespective of fault. The judgement here is based on our findings upon the arrival of such loan packaging at our premises. Use of loan packaging as a storage container or passing it on to third parties is inadmissible unless this has been previously agreed in writing.
d) In case of delivery in tank wagons, the Customer, on their own responsibility, must ensure that the wagons are emptied and returned to us or to the given address in proper condition without delay. In cases of delay in returning them, the costs caused by the delayed return are to be borne by the Customer.
Art. 6 Retention of title
a) The title to the goods (conditional goods) is first transferred to the Customer upon full payment of the purchase price and all other debts including future debts arising from the business connection with us. This also applies if payments are made against specially designated debts. If an invoice is still outstanding, the retained title shall serve as a security for the balance due to us. Rights of ownership are transferred to the Customer no later than the date on which we no longer have justifiable claims against the Customer.
b) As long as the Customer correctly performs their obligations towards us, they are authorized to further use conditional goods in normal business practice.
c) If the Customer fails to fulfil their payment obligations, even after being given more time, we are authorized to claim repossession of the conditional goods without granting further payment time and without notice of cancellation. If we take back the retained goods, this shall not constitute a withdrawal from the contract, unless stated by us in writing.
d) Processing or conversion of the conditional goods is carried out on our behalf without putting us under any obligation. We are considered the manufacturer in the sense of Art. 950 BGB (German Civil Code) and acquire ownership of the intermediate and end products in proportion to the invoice value of our conditional goods to the invoice values of the third-party goods; to this extent, the Customer holds in safe custody, on our behalf and free of charge. The same applies to combination or mixing of conditional goods with third-party goods in the sense of Art. 947, 948 BGB.
e) As security for all our claims, the Customer hereby assigns to us any claims arising from resale of the conditional goods to third parties. If the Customer sells goods of which we only have partial ownership according to letter d), they assign to us their claims against third parties in the corresponding partial sum. If the Customer uses the conditional goods within the scope of a contract of work (or similar agreement), the Customer assigns the corresponding claim to us.
f) In the normal course of business, the Customer is entitled to collect claims arising from the further use of conditional goods. If facts come to our knowledge which indicate a significant deterioration in the Customer’s financial situation, then, upon our request, the Customer must inform their customers of the assignment, refrain from disposing of the debts in any way, give us all the necessary information about their inventory of goods which are our property and the claims assigned to us, and shall provide us with the necessary documents to enforce the assigned claims. We must be informed immediately about any third-party seizure of the conditional goods or the assigned claims.
g) If the value of our securities exceeds the total claim against the Customer by more than 10 %, then, at the request of the Customer, we are obliged to release excess securities of our choice.
Art. 7 Warranty rights, Customer’s inspection and complaint obligations
a) For substantive deficiencies, including the absence of warranted quality, we shall be liable to commercial customers and legal entities under public law in accordance with the applicable provisions of law for cancellation, reduction of price or replacement at our discretion, provided the following conditions are met in addition to compliance with applicable law:
1) Immediately upon delivery, the Customer shall inspect goods and packaging in accordance with customary commercial practice. If the goods are delivered in multiple shipping units, the Customer must also check the labels on each shipping unit for conformity with their order. If the goods are delivered in tank vehicles or tanks which are not to remain in the Customer’s possession, the Customer must check the accompanying shipping documents required by law for conformity with their order. They shall also be required to sample the goods in order to verify conformity with order specifications before the goods are removed from the transport tanks/vehicles.
2) Following inspection in accordance with item a), the Customer shall immediately notify the Vendor of any deficiencies detected.
3) Should the Customer fail to perform a required inspection or to report detected or detectable deviancies immediately, they thereby lose their warranty rights with respect to the detected or detectable deficiencies in question. The same applies to an inadvertently wrong delivery, including a deviation so significant that approval/acceptance of the goods by the Customer can be effectively ruled out.
4) In the case of concealed deficiencies, the Customer must file complaint immediately and in no case later than ten days following detection of the deficiency. If not, the goods shall be regarded as accepted. Complaints regarding concealed deficiencies are ruled out categorically after eight weeks from the date of receipt of the goods. The right to demand replacement for wrong delivery remains unaffected by this provision.
b) For substantive deficiencies including the absence of warranted quality, we shall be liable to non-commercial customers in accordance with the applicable provisions of law for cancellation, reduction of price or replacement at our discretion, provided the following conditions are met in addition to compliance with applicable law:
1) The non-commercial customer has the same obligations to inspect and verify as the commercial customer (see item a), no. 1 above). In contrast to the commercial customer, however, the inspection and verification requirements are not based upon customary commercial practice but upon the knowledge which could reasonably be expected of the Customer, given their occupational status.
2) Following inspection in accordance with a), detected deficiencies are to be reported in writing immediately; otherwise, deficiencies are to be reported in writing within 6 months.
3) Should the Customer fail to perform inspection in accordance with reasonable expectations or to report detected or detectable deficiencies within the specified periods, they thereby lose their warranty rights with respect to the detected or detectable deficiencies in question.
Art. 8 Liability in case of consequential damages and other losses
a) For losses affecting legally recognized assets of the Customer, to include their material assets, as a result of deficiencies in the purchased object, inadvertently wrong delivery or packaging, we assume liability subject to the following provisions:
1) With respect to damages which could have been avoided by compliance on the part of the Customer with inspection obligations, any and all liability toward commercial customers and legal entities is excluded, unless said damages are attributable to malicious intent or gross negligence on the part of our legal representatives. Under the same circumstances, any and all liability toward non-commercial customers is similarly excluded, unless the damages in question are attributable to malicious intent or gross negligence on our part.
2) To the extent damages are incurred despite the Customer’s compliance with inspection obligations, we shall be liable toward both commercial and non-commercial purchasers only for damages resulting from deliberate or grossly negligent breach of contract.
b) For damages other than those described above, we shall be held liable – regardless of the basis for liability – only in cases where said damages are the result of malicious intent or gross negligence on our part or on the part of persons/organizations engaged to provide services on our behalf.
c) We shall not be liable for unsuitability of specific goods for the purposes intended by the Customer. With respect to consultation, information or recommendations provided by us with respect to matters of application and use, we shall be liable for the negligent provision of incorrect advice, information or recommendations only if provided in writing.
d) All claims filed under this Art. 8 become null and void six months after the date of the actions resulting in the damages in question. This does not apply to claims caused by criminal behaviour.
Art. 9 Final provisions
a) The legal venue for cases involving commercial customers is the place of jurisdiction of the main offices of the Vendor. In disputes involving non-commercial customers, the legal venue is the place of jurisdiction of the place of residence or business of the defendant. This agreement and all and any claims resulting therefrom are solely governed by German law.
b) In case any part of the above clauses should be or become ineffective, such provisions are to be replaced by provisions which come as close as possible to the original commercial purpose of the contract – taking appropriate account of the interests of both Parties.