General terms and conditions for delivery and payment according to the recommendation and approval of the German Federal Cartel Office on 11 July 2003:
I. Area of application
- Our terms and conditions for delivery and payment are intended only for companies. The do not apply to consumers.
- Our terms and conditions for delivery and payment shall apply exclusively. We do not accept any Buyer‘s terms and conditions of delivery and payment contrary hereto or deviating here from, unless we have expressly agreed to them writing. Our offers are subject to change without notice, unless otherwise expressly stated in writing.
- Ancillary agreements, amendments and deviations to these terms and conditions shall be agreed in writing.
- The prices agreed are ex works prices plus the statutory value added tax that is applicable on the day of delivery.
- Prices shall be calculated on the basis of the weights, quantities and amounts determined by us, unless the Buyer objects immediately or latest within 14 days upon receipt of the goods.
- Should our prices generally be decreased or increased during the term of contract, the changed prices shall apply for the still outstanding quantities. If prices are increased, the Buyer shall be entitled to immediately withdraw from the contract by written declaration, however, latest within four weeks after the receipt of the price increase. The withdrawal does not affect deliveries, which were carried out before the price increase.
III. Application technical consultation
- Any technical advice provided by us is formulated according to the best of our knowledge. All information and data regarding suitability and application of the supplied merchandise is non-binding and does not release the Buyer from own tests and trials. This is especially true for all cases in which our products are combined with thinners, hardeners, additional supplementary varnishes or other components that were not purchased from out company.
- The Buyer has to pick up the goods on the agreed delivery date, or if a delivery date has not been agreed upon, immediately after notification of availability at the place of delivery, according to clause IX. 1. If the Buyer defaults in receiving the goods, we are authorised at our own option to ship the goods at Buyer’s cost - and if necessary, we may store the goods outside of buildings. In such a case, we shall not be liable for the accidental deterioration, loss or destruction of the goods.
If we decide to keep the goods in storage, we shall be entitled to invoice the goods after one week.
- If, notwithstanding clause 1, it is agreed that we are responsible for shipment of the goods, the Buyer has to bear the costs of the transportation. The choice of transport means and route is made at our discretion due to lack of specific instructions.
The risk transfers to the Buyer at the time when the goods are turned over to the freight carrier.
- Partial deliveries acceptable to Buyer are permissible.
- Major, unforeseeable disturbances not caused by us, failures to keep delivery dates, or non-deliveries by our suppliers, as well as operating disruptions due to lack of raw materials, energy or manpower, strikes, lock-outs, difficulties in providing means of transportation, forwarding disputes, rulings issued by high authorities, and in cases of force majeure affecting us
and our suppliers, the period of delivery shall be extended by the period of hindrances, if the supply capability of the goods is of importance. We will notify the Buyer immediately of the beginning and end of such hindrances. If the delivery is thereby delayed by more than one month, the Buyer and we shall be entitled to withdraw from the contract without becoming liable
for compensation claims with regard to the quantity to which their disruption of deliveries relates. This shall have no bearing on the Buyer‘s legal right to cancel the contract in case of deliveries being delayed for reasons for which we are responsible. If the delivery is made in loan containers, they must be sent back to us within 90 days after receipt of the delivery, empty of residue and carriage paid. Loss of and damage to the rental packaging shall be borne by Buyer, should the Buyer be liable. Loaned packaging must not be used for purposes other than transport of the delivered goods or for taking up other products. They are intended exclusively for the transport of the delivered goods. No labelling is to be removed.
- Non-returnable packaging shall not be taken back by us, instead, we name the Buyer a third party that recycles the packaging according to the packaging ordinance.
- The billing amount shall be payable without deductions within 30 days. Payment is only deemed to be on time if we can dispose of the money and it is credited on the due date to the account provided by us.
- In the event of delay in payment, interest on arrears is payable at 8% above the base rate of interest. Both, Buyer and we, are free to prove higher or lower damage due to delayed performance.
- Providing a bill of exchange does not constitute a cash payment. Such bills may be used in payment only with our previous consent. Any fees for bills of discount or exchange shall be at the expense of the Buyer.
- Retention of payments or setting off against Buyer‘s claims, which are not accepted by us, is not permissible.
- Failure to pay invoices fallen due and other circumstances, which suggest an essential deterioration in the Buyer’s financial circumstances after the conclusion of the contract, will result in claims for all payments becoming due immediately, which are based upon the same legal relationship.
VI. Reservation of proprietary rights
- We reserve the right to retain the ownership of the delivery item until the complete payment of the purchase price. All delivered goods remain our property until satisfaction of all accounts receivable arising from the on-going business relationship with the Buyer. The reservation of proprietary rights shall also remain in force if individual debts receivable are added to a running account and the balance has been struck and approved. Payments notwithstanding, purchase price debts will not
be regarded as settled as long as any reciprocal liability we have assumed in this connection continues to exist - such as in a cheque-bill of exchange process.
- The Buyer shall perform processing or mixing for us without creating a liability for us. In case of processing or mixing with other items not owned by us, the Buyer shall already at this time assigns to us a co-title to the new items in the ratio of the value of the goods, with respect to other processed items on condition that Buyer preserves the news items for us.
- The Buyer shall be entitled to dispose of products in the course of its ordinary business, provided that it meets its obligation arising from the business connection with us in the agreed time.
- The Buyer assigns to us already now as security all propriety rights from the sale of goods that we (completely or in part) own to the extent of our ownership share. If the Buyer connects or mixes the delivered goods with a main item of a third party against payment, it hereby assigns its
claims against the third person up to the amount of the invoice value of the goods delivered for security reasons to us. We shall accept these assignments.
- At our request, the Buyer shall provide us with any requisite information about the stock of goods in which we retain proprietary rights and must notify its customers of such assignment(s).
- The Buyer shall be obligated to preserve the conditional goods with due care and to insure said goods at its own cost against loss and damage. The Buyer hereby assigns to us in advance its claims from the insurance contracts. We shall accept these assignments.
- Should the value of the securities exceed our claims by more than 20%, we will, to that extent, at the Buyer‘s request, release securities of our choice.
- Buyer‘s right to dispose of the products that are subject to our proprietary rights as well as the collection of claims assigned to us shall expire as soon as Buyer discontinues payment and/or experiences financial collapse. When these prerequisites should become the case, we are entitled under the exclusion of all retention rights, without setting a further deadline or withdrawing from the contract, to the immediate provisional surrender of all goods under reservation of our proprietary
- Should proprietary rights not be legally effective according to the laws of the country in which the proprietary goods are located, the Buyer shall have to provide an equivalent collateral if so demanded by us. If it fails to comply with this request, we can require immediate payment of all outstanding invoices, regardless of agreed payment dates.
VII. Claims for defects
- Immediately upon receipt, the Buyer shall examine the goods for defects.
- Open defects shall be reported in writing either immediately but no later than 14 days after receipt of the goods. Hidden defects shall be reported latest within 14 days after their discovery. The notification must be in writing and shall precisely describe the nature and extent of the defect.
- For properly submitted and legally justified notifications of defects, we shall be entitled to removal of the defects or to a replacement delivery. In the event of a removal of the defects, we are committed to bear all expenses for this purpose, provided the goods were not transported to another location than the place of fulfilment. If we are not prepared or able to remedy the defect/provide a replacement delivery, in particular, if the appropriate deadlines are delayed for reasons, for which we are accountable, or if the remedying of the defect/replacement delivery fails, the Buyer is entitled to the cancellation of the contract or to demand a corresponding reduction of the purchase price.
- All claims arising from a defect shall lapse 12 months after the Buyer received the goods, provided the delivered goods have not been used in accordance with its usual utilisation for a building and caused the building‘s defects.
- In the case of entrepreneur‘s recourse (§ 478 of the German Civil Code), we are entitled to refuse the Buyer’s rights of recourse with the exception of claims of new delivery of the goods and reimbursement of expenses, provided we grant the Buyer for the exclusion of its rights a similar compensation. Claims on the part of the Buyer for damages are excluded, without that we have to grant it any compensation.einzuräumen ist.
- Unless otherwise agreed, all further claims by the Buyer for compensatory damages against our employees, workers, personnel, representatives and vicarious agents are excluded. This applied in particular to any damages compensation claim not originating from the delivered goods themselves.
- The limitations and exclusions of liability contained in these delivery and payment terms shall not apply, if in cases of intent, gross negligence, fraudulent concealment or injury to life, body and health, or as a consequence of an accepted quality or service life guarantee or in accordance with the regulations of the German Product Liability Act, a liability on our part is mandatory. The same shall be applicable in case of a breach of duty on our part, which endangers the fulfilment of the
contract purpose. However, in such a case, the liability shall be limited to the replacement of a typical foreseeable damage.
IX. Place of performance, jurisdiction and other provisions
- The place of performance for all liabilities from business relationships or from the individual contract is our respective shipping centre and for payments it is our company headquarter.
- The jurisdictional venue at our option may be our headquarter or the Buyer’s general jurisdictional venue. This also applies to disputes relating to deed, bill or check litigations.
- The law of the Federal Republic of Germany shall be applicable exclusively to contractual relationships with our Buyers. The applicability of the UN Sales Convention of 11 April 1980, regarding contracts relating to the international purchasing of goods (CISG – “Vienna Sales Convention”) shall be excluded.
- The Buyer’s data will be stored and processed by us to the extent that this is required for the proper handling of contractual relationships.