General Terms of Business (as of 08/2017)
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1 SCOPE OF APPLICATION
(1) These terms and conditions apply exclusively to entrepreneurs, legal entities under public law, or special funds under public law. Conflicting conditions or conditions of the purchaser that deviate from our General Terms of Business shall only be recognised if we have expressly agreed to their validity in writing.
(2) These terms of sale shall also apply to all future transactions with the purchaser, insofar as they concern legal transactions of a related nature.
2 OFFERS AND CONCLUSION OF CONTRACT
(1) Our offers are non-binding. If an order is to be regarded as an offer pursuant to § 145 of the German Civil Code (BGB), we may accept it within two weeks. Verbal agreements, commitments, and guarantees made by our employees – excluding executive bodies – in connection with the conclusion of a contract shall only become binding upon written confirmation.
(2) Quantity specifications shall always be approximate. Technically and filling-process-related deviations of +/- 5% shall be deemed contractual for deliveries in stackable tanks, permanently connected tanks, or silo vehicles. Such quantity deviations shall be fully taken into account in the invoice, either by reduction or increase accordingly.
3 DOCUMENTS PROVIDED
We reserve ownership and copyright of all documents provided to the purchaser in connection with the placing of an order, such as calculations, drawings, etc. These documents must not be made accessible to third parties unless we have expressly granted the purchaser our written consent. Insofar as we do not accept the purchaser’s offer within the period specified in §2, these documents must be returned to us without delay.
4 PRICES AND PAYMENT
(1) Unless otherwise agreed in writing, our prices are ex works, excluding packaging, and plus statutory value added tax at the applicable rate. Packaging costs may be invoiced separately.
(2) Payment of the purchase price must be made exclusively to the account specified on the invoice. Deduction of a cash discount is only permissible if expressly agreed in writing.
(3) Unless otherwise agreed, the purchase price is due within 10 days of delivery. Default interest will be charged at a rate of 9% above the applicable base interest rate per annum. The right to claim higher default damages is reserved.
(4) Unless a fixed price has been agreed, we reserve the right to make reasonable price adjustments due to changes in labour, material, and distribution costs for deliveries made 3 months or more after conclusion of the contract.
5 SET-OFF AND RIGHTS OF RETENTION
The purchaser shall only be entitled to set off claims if their counterclaims have been established by a court of final instance or are undisputed. The purchaser is only entitled to exercise a right of retention insofar as their counterclaim is based on the same contractual relationship.
6 DELIVERY AND DELIVERY PERIOD
(1) Agreed delivery deadlines and dates shall always be approximate unless a fixed date has been expressly agreed.
(2) In the case of drop shipments, the delivery date and period are deemed to have been met if the goods leave the supplying plant in sufficient time to arrive at the recipient within the usual transport time.
(3) The commencement of the delivery period specified by us presupposes the timely and proper fulfilment of the purchaser’s obligations. The right to plead non-performance of the contract is reserved.
(4) If the purchaser defaults on acceptance or culpably breaches other obligations to cooperate, we shall be entitled to demand compensation for any resulting damage, including any additional expenses. Further claims are reserved. If the aforementioned conditions apply, the risk of accidental loss or accidental deterioration of the goods shall pass to the purchaser at the time they default on acceptance or enter into debtor’s default.
(5) In the event of a delivery delay not caused by us intentionally or through gross negligence, we shall be liable for each completed week of delay in the form of a lump-sum compensation of 3% of the delivery value, but not exceeding 15% of the delivery value in total.
(6) Further statutory claims and rights of the purchaser due to a delivery delay shall remain unaffected.
7 TRANSFER OF RISK UPON DISPATCH
(1) If the goods are dispatched to the purchaser at their request, the risk of accidental loss or accidental deterioration of the goods shall pass to the purchaser upon dispatch, at the latest when the goods leave the warehouse. This applies regardless of whether the goods are dispatched from the place of performance or who bears the freight costs.
(2) Events of force majeure that render delivery permanently impossible shall entitle us to withdraw from the contract. Events of force majeure shall include in particular: statutory restrictions, strikes, lockouts, and low or high water levels on shipping routes, or any other irregular condition. In such cases, we cannot be held liable for damages due to breach of duty. The buyer shall not be obliged to provide any counter-performance. We will notify the buyer of such events without delay. The buyer shall then also be entitled to withdraw from the contract. Even in the case of only temporary impossibility, no default shall occur. No default damages or compensation may be claimed in such cases.
8 PACKAGING
(1) If our deliveries are made in loan containers, these must be returned to us by the buyer in emptied, undamaged condition within 60 days of arrival, at the buyer’s expense and risk.
(2) If the buyer fails to fulfil the obligation referred to in (1) within the specified period, we shall be entitled to charge a reasonable fee and, after an unsuccessful deadline for return has been set, to demand the replacement cost, taking the aforementioned fee into account.
(3) The markings affixed must not be removed. Our loan packaging must not be exchanged or filled with other goods. The buyer shall be liable without fault for any depreciation, exchange, or loss. Use as storage containers or passing on to third parties is not permitted without our written consent.
9 RETENTION OF TITLE
(1) We retain ownership of the delivered goods until all claims arising from the delivery contract have been paid in full. This also applies to all future deliveries, even if we do not always expressly refer to this. We are entitled to reclaim the goods if the purchaser acts in breach of contract.
(2) The purchaser is obliged to treat the purchased goods with care for as long as ownership has not yet transferred to them. As long as ownership has not yet transferred, the purchaser must notify us immediately in writing if the delivered item is seized or subjected to other interventions by third parties. 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 of the German Code of Civil Procedure (ZPO), the purchaser shall be liable for the loss incurred by us.
(3) The purchaser is authorised to resell the reserved goods in the ordinary course of business. The purchaser hereby assigns to us the claims arising from the resale of the reserved goods against the buyer in the amount of the gross invoice amount agreed with us. This assignment applies regardless of whether the purchased goods have been resold without or after processing. The purchaser remains authorised to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim for as long as the purchaser meets their payment obligations from the proceeds received, is not in default of payment, and in particular no application has been filed for the opening of insolvency proceedings or a suspension of payments has occurred.
(4) Any processing, transformation, or remodelling of the purchased goods by the purchaser shall always be carried out in our name and on our behalf. In this case, the expectant right of the purchaser in the purchased goods shall continue in the remodelled item. If the purchased goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the objective value of our purchased goods relative to the other processed items at the time of processing. The same shall apply in the case of mixing. If the mixing is carried out in such a way that the purchaser’s item is to be regarded as the main item, it shall be deemed agreed that the purchaser transfers proportional co-ownership to us and holds the resulting sole ownership or co-ownership on our behalf.
(5) We undertake to release the securities to which we are entitled at the request of the purchaser, insofar as their value exceeds the claims to be secured by more than 20%.
10 WARRANTY AND NOTICE OF DEFECTS AS WELL AS RECOURSE/MANUFACTURER’S INDEMNITY
(1) Warranty rights of the purchaser presuppose that the purchaser has properly fulfilled their duty to inspect and give notice of defects pursuant to § 377 of the German Commercial Code (HGB).
(2) Claims for defects shall become statute-barred 12 months after delivery of the goods supplied by us to our purchaser. The above provisions shall not apply insofar as the law mandatorily prescribes longer periods. Our consent must be obtained prior to any return of goods.
(3) Should the delivered goods, despite all due care, exhibit a defect that already existed at the time of transfer of risk, we shall, subject to timely notice of defect, at our discretion either rectify the goods or deliver replacement goods. We must always be given the opportunity to effect subsequent performance within a reasonable period. Recourse claims shall remain unaffected by the above provision without restriction.
(4) If subsequent performance fails, the purchaser may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration.
(5) We shall not be liable for the suitability of the goods for the purposes intended by the buyer, unless the intended purpose has become part of the contract in writing. Insofar as we provide technical application advice, information, or recommendations, we shall only be liable for grossly negligent incorrect advice, information, or recommendations if they have been provided in writing.
(6) Claims for defects shall not exist in the case of only minor deviations from the agreed quality, only minor impairment of usability, natural wear and tear, or damages arising after the transfer of risk as a result of faulty or negligent handling, excessive use, unsuitable equipment, defective construction work, unsuitable ground conditions, or due to special external influences not assumed under the contract. If inappropriate modifications are made by the purchaser or third parties, no claims for defects shall exist for these modifications or the consequences arising therefrom.
(7) Claims of the purchaser for expenses required for the purpose of subsequent performance, in particular transport, travel, labour, and material costs, are excluded insofar as the expenses increase because the goods delivered by us have subsequently been taken to a location other than the purchaser’s place of business, unless the transfer corresponds to their intended use.
(8) Recourse claims of the purchaser against us shall only exist insofar as the purchaser has not entered into any agreements with their buyer that go beyond the statutory mandatory warranty claims. The scope of the purchaser’s recourse claim against the supplier shall furthermore be governed by paragraph 6 accordingly.
(9) In the event of fraudulent concealment of a defect or in the event of the assumption of a guarantee for the quality of the goods at the time of transfer of risk within the meaning of § 444 BGB, the purchaser’s rights shall be governed exclusively by the statutory provisions.
11 MISCELLANEOUS (updated 25.08.2017)
(1) These terms and conditions and all legal relationships between us and the buyer shall be governed by the law of the Federal Republic of Germany, excluding all international and supranational (contractual) legal systems, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
The prerequisites and effects of the retention of title pursuant to §9 shall, however, be subject to the law at the respective location of the goods, insofar as the choice of law in favour of German law is inadmissible or invalid under such law.
(2) If the buyer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Memmingen.
However, we are also entitled to bring an action at the buyer’s general place of jurisdiction.
(3) All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.
(4) Should individual provisions of this contract be or become invalid or contain a gap, the remaining provisions shall remain unaffected. The parties undertake to replace the invalid provision with a legally permissible provision that comes closest to the economic purpose of the invalid provision, or to fill the gap accordingly.