Inhalt
Preamble
We deliver exclusively to companies as defined by §310 sec. 1 BGB (German civil code) in conjunction with §14 BGB, as well as corporate bodies organised under public law (henceforth “buyer”). All sales to a buyer are subject to the following terms and conditions. We refuse any terms and conditions of the buyer that conflict with the following terms and conditions, in particular the buyer’s terms and conditions of purchase, unless we have agreed to them in writing. The following terms and conditions also apply if we carry out the delivery to the buyer without reservation in the knowledge that the buyer’s terms and conditions conflict with or deviate from the following terms and conditions.
§ 1 Offer and acceptance
a) Our offers are non-binding, unless otherwise stated in the order confirmation.
b) A contract with the buyer shall only be concluded when the buyer’s offer submitted in response to our non-binding offer has been confirmed by us in writing or we have actually begun to carry out the delivery or service contained in our non-binding offer.
c) Verbal agreements, promises and guarantees made by us in connection with the conclusion of the contract shall only become binding upon our written confirmation.
d) A waiver of the written form requirement is only valid if it is made in writing.
e) Supplementary clauses to the description of the goods such as “circa”, “as already delivered”, “as before” or similar additions in our offers refer exclusively to the quality or quantity of the goods.
f) Quantities are always approximate. Safety-related and filling-related deviations of 10% are deemed to be in accordance with the contract; this also applies to deliveries in tanks or tankers. Such deviations in quantity reduce or increase the agreed purchase value accordingly.
§ 2 Purchase Price and Payment
a) Our prices do not include the statutory value added tax (VAT). On the invoice issued to the buyer the VAT will be declared separately. The purchase price shall be calculated on the basis of the quantities or weights determined by us or our supplier.
b) The purchase price is payable net (without deduction) within 30 days of the invoice date, unless otherwise agreed in the order confirmation. Any payments are only accepted by wire transfer. Payments shall only be deemed to have been effected when the amount is irrevocably credited to on one of our accounts.
c) The buyer shall only be entitled to his right of retention, if his counterclaims have been found to be legally binding, are undisputed or have been recognised by us.
d) The buyer is only authorised to exercise a right of retention if his counterclaim is based on the same contractual relationship.
e) In the event of default, we shall charge default interest at the statutory rate and reserve the right to claim further damages.
f) If the buyer is in default with the payment of one of our invoices in an amount that is not insignificant for the business relationship, i.e., 20% of the invoiced amount for one month, calculated as an average of the 12 months prior to the start of the default, then all our claims arising from the business relationship shall become due immediately. We shall then also be entitled to demand advance payment prior to any further delivery, even if other payment terms were agreed to. If the default in payment is not remedied within a reasonable period of grace, we shall be entitled to withdraw from the contract and to claim damages for delay or non-performance. This applies to agreed, but not yet carried out follow-up business.
g) Should we become aware of facts that indicate a significant deterioration in the buyer’s financial situation, we shall be entitled to demand full payment of the purchase price before delivery of the goods, even if other payment terms were previously agreed and to declare due our claims from the current business relationship that are not time-barred.
h) We expressly reserve the right to change prices because of additional fiscal burdens, currency fluctuations or increases in customs duties. In the event of such price changes, the increase
§ 3 Delivery
a) The agreed terms of delivery and dates shall always be deemed to be approximate unless a fixed date has been expressly agreed and confirmed in the order confirmation.
b) In the case of deliveries from the manufacturer directly to the buyer (drop deliveries), the delivery date and time shall be deemed to have been met, if the goods leave the supplying plant in good time, assuming usual transport times, so that the delivery may reach the recipient in time.
c) Events of force majeure, which also include public legal restrictions, as well as strikes and lockouts, shall entitle us to withdraw from the contract. Compensation for breach of duty is excluded in such cases. This shall also apply in the event of late delivery by our suppliers for which we are not responsible. We are obliged to inform the purchaser of such events without delay. The buyer is then also entitled to withdraw from the contract.
d) If we are in default of delivery, the buyer shall be obliged to set a reasonable period of grace and may withdraw from the contract after this period has expired without success. He may only claim damages for breach of duty after the unsuccessful expiry of the grace period if the delay of the delivery has occurred and has been caused by at least a negligent breach of essential contractual obligations by our legal representative or one of our vicarious agents.
§ 4 Dispatch and Acceptance
a) The Incoterms in their latest version shall apply, unless otherwise agreed with the buyer in writing. The transfer of risk shall be governed by the Incoterm confirmed by us in the order confirmation. Insofar as no Incoterm has been confirmed or agreed, the risk shall pass to the buyer when the goods are made available for collection (analogous to Incoterm EXW). For the avoidance of doubt, the unloading and storage of the goods shall in any case be the responsibility of the buyer.
b) Our German hauliers usually include the ADSp ( General Terms and Conditions of the German Forwarding Trade) into their terms and conditions. If a German haulier is used for the transport of goods to the buyer then they will also apply to the him.
c) In the case of collection from the place of delivery, the buyer or his authorised representative shall be responsible for loading the vehicle.
d) In the case of deliveries in tankers or tanks, the recipient must ensure that his tanks or other storage containers are in perfect technical condition. The recipient is obliged to arrange the connection of the filling lines to his receiving system. We are only obliged to operate the vehicle’s own equipment.
e) Insofar as our employees also assist with unloading or refuelling and cause damage to the goods or other damage, they act at the sole risk of the buyer and not as our vicarious agents.
f) The above provisions shall apply accordingly in the case of delivery by third party transport companies, insofar as liability on the part of the seller could be derived from their behaviour. The liability of third parties remains unaffected.
§ 5 Packaging
a) If our deliveries are made in returnable containers, these must be returned to us by the buyer in an empty, perfect condition at his expense and risk within 30 days of arrival at the buyer’s premises at the latest or, if applicable, returned free to our vehicle against confirmation of receipt.
b) If the buyer does not fulfil the obligation mentioned under a) in due time, we shall be entitled to charge a reasonable fee for the time exceeding 30 days and, after unsuccessfully setting a deadline for return, to demand the replacement price, taking into account the aforementioned fee.
c) The attached labelling may not be removed. Loaned packaging may not be exchanged or filled with other goods. The buyer shall be liable for depreciation, mix-ups and loss. The receipt of the goods at our premises is decisive. The usage as storage container or transfer to third parties is not permitted unless this has been agreed in advance to by us in writing.
d) In the case of deliveries in tank lorries, the recipient shall be responsible for ensuring that the tank is emptied as quickly as possible. In the event of an extension of the idle time at the recipient’s premises for which the buyer is responsible, the costs incurred for idle times shall be borne by the buyer.
§ 6 Reservation of Title
a) Title to the goods shall not pass to the buyer until the purchase price and all other claims, including future claims, arising from the business relationship with us have been paid in full. This shall also apply if payments are made on specially designated claims. In the case of a current account, the retained title shall be deemed as a security for our balance claim. Ownership shall be transferred to the buyer latest at the point in time at which we no longer have any undisputed claims against the buyer.
b) As long as the buyer duly fulfils his obligations towards us, he is authorised to use the reserved goods in the normal course of business under the condition that his claims from the resale are transferred to us in accordance
with e).
c) If the buyer does not fulfil his payment obligations even after a grace period has been set, we shall be entitled to demand the return of the reserved goods without setting another grace period and without a declaration of withdrawal. For the purpose of repossession, we may be authorised to enter the buyer’s premises.
d) Any treatment or processing of the reserved goods shall be carried out for us without any obligation on our part. We shall be deemed to be the manufacturer within the meaning of § 950 BGB and shall acquire ownership of the intermediate and end products in the ratio of the invoice value of our reserved goods to the invoice values of third- party goods; in this respect, the buyer shall hold the goods in trust for us free of charge. The same shall apply in the event of combination or mixing within the meaning of §§ 947, 948 BGB of reserved goods with third-party goods.
e) The buyer hereby assigns to us all claims against third parties arising from the resale of the reserved goods to secure our claims. If the buyer sells goods to which we only have partial ownership in accordance with letter d), he assigns to us the claims against the third parties for the corresponding partial amount. If the buyer uses the reserved goods within the framework of a contract for work (or similar), he shall assign to us the claim (for wages) in the amount of the invoice value of our goods used for this purpose.
f) In the ordinary course of business, the buyer is authorised to collect the claims arising from the further use of the reserved goods. If we become aware of facts which indicate a significant deterioration of the buyer’s assets, the buyer shall, at our request, inform his customers of the assignment, refrain from any disposal of the claims, provide us with all necessary information about the inventory of the goods in our ownership and the claims assigned to us and hand over the documents for asserting the assigned claims. We must be informed immediately of any access by third parties to the goods subject to retention of title and the assigned claims.
g) If the value of the securities to which we are entitled exceeds the total claim against the buyer by more than 10%, we shall be obliged to release securities of our choice at the buyer’s request.
§ 7 Warranty rights, inspection and complaint obligations of the buyer
a) The buyer’s claims for defects are limited to subsequent fulfilment. If the subsequent fulfilment fails, the buyer may reduce the purchase price or withdraw from the contract.
b) The buyer must inspect the goods and their packaging immediately upon delivery in accordance with § 377 HGB (German Commercial Code). If the goods are delivered in packages, he must also check the labelling of each individual package for conformity with the order. In the case of tanker deliveries, the buyer must satisfy himself that the goods are in accordance with the contract by taking samples in accordance with standard commercial practice before discharging the goods.
c) The buyer shall immediately notify us in writing of any defects discovered during the inspection of the goods.
d) If the buyer fails to carry out the respective inspection or does not immediately give notice of an identified or identifiable defect, the goods shall be deemed approved. The same shall apply in the event of an erroneous incorrect delivery, even in the event of such a significant deviation that approval of the goods by the buyer must be considered impossible.
e) In the event of a hidden defect, the buyer must inform us immediately after its discovery. Otherwise, the goods shall also be deemed approved in this respect. The burden of proof that a hidden defect exists lies with the buyer.
f) We shall be liable for material defects for damages or compensation for fruitless expenditure in accordance with the following § 8.
§ 8 Liability for Damages
a) We shall be liable for damages to the buyer’s legal assets, including his property caused by defective goods, erroneous delivery or defects of the packaging of the goods delivered, as follows:
1. any kind of liability on our part is excluded, insofar as the damage could have been avoided by compliance with the buyer’s inspection obligations, unless the damage is caused by our deliberate behaviour or that of our legal representatives.
2) Insofar as damage occurs despite compliance with the buyer’s inspection obligations, we shall only be liable for intentional or gross negligent breach of contract.
b) We shall be liable in accordance with the statutory provisions insofar as the buyer asserts claims for damages based on our deliberate behaviour or gross negligence. This shall also apply to damages caused by the deliberate or grossly negligent behaviour of our representatives or vicarious agents. Insofar as we are not accused of deliberate breach of contract, our liability for damages shall be limited to typically foreseeable occurring damages.
c) We shall not be liable for the suitability of the goods for the purposes intended by the buyer unless usability of the intended purpose has been specifically confirmed in writing by us. We are not liable for verbal information, recommendations or advice. Insofar as such is provided in writing, we shall only be liable for gross negligence or intent.
d) Claims for defects with regards to the delivered products shall expire twenty four months after the transfer of risk, see §4.
e) If the buyer is only authorised to use our goods within the framework of legal restrictions, for example in accordance with Regulation (EC) No. 1907/2006 (REACH) or Regulation (EC) No. 528/2012 (BPR), he must check and observe these legal restrictions. We shall not be liable if the buyer has to observe any restrictions for the use of the goods that apply to him and he suffers damages as a result of observing or disregarding them.
f) If delivery of the purchased goods is not possible due to failure to register or unsuccessful registration and we are not responsible for this, we shall inform the buyer immediately and will try to obtain a replacement delivery. If this is not successful, both the buyer and we shall be entitled to withdraw from the contract. A claim for damages is excluded for the buyer and us.
g) Paragraphs e) and f) shall apply accordingly if the legally required registration of purchased goods has taken place, but the required authorisation remains undone or is not granted.
h) Liability for culpable injury to life, limb or health remains unaffected; this also applies to liability under the Product Liability Act (ProdHaftG).
§ 9 Place of jurisdiction, applicable law, severability clause
a) Place of jurisdiction is Hanau.
b) The law of the Federal Republic of Germany shall apply. The regulation of the International Sale of Goods (CISG) is excluded.
c) Should individual provisions of this contract be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, this shall not affect the validity of the remainder of the contract. The invalid or unenforceable clause shall be replaced by the statutory provisions.
