General terms and conditions
General Terms and Conditions of Delivery and Payment of the Coatings Industry – Recommendation due to legal changes from 2018 and adapted to the requirements of antitrust law
(1) The following terms and conditions of delivery and payment shall only apply to companies, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (Bürgerliches Gesetzbuch). 1 BGB determines. They do not apply to consumers.
2. our terms of delivery and payment apply exclusively. Any terms and conditions of the Buyer that conflict with or deviate from our Terms and Conditions of Delivery and Payment shall not become part of the contract unless we have expressly agreed to their validity in writing. Our offers are subject to change unless expressly agreed otherwise.
3. collateral agreements, amendments and deviations from these terms and conditions shall be agreed in writing.
1. the agreed prices shall apply plus the statutory value added tax applicable on the day of delivery.
2. the weights, numbers of items and quantities determined by us shall be decisive for the calculation if the buyer does not object immediately after delivery.
III. APPLICATION TECHNOLOGY CONSULTING
1. insofar as we provide consulting services, this is done to the best of our knowledge and is non-binding. All data and information about suitability and application of the delivered goods do not exempt the buyer from own tests and trials. This applies in particular if thinners, hardeners, additive coatings or other components are added that were not purchased from us.
(1) The Buyer shall deliver the goods on the agreed delivery date or, if a delivery date has not been bindingly agreed, without undue delay after notification that the goods are ready for delivery at the place of performance pursuant to. Para. IX. 1 to be collected. If the purchaser is in default of acceptance of the goods, we shall be entitled, at our discretion, to ship them at the purchaser’s expense or – if no other option is available – to store them outdoors if necessary. In this case we are not liable for the accidental destruction, loss or damage of the goods. If the goods are stored by us, we shall be entitled to invoice the goods and demand payment after one week has elapsed following the occurrence of default in acceptance.
2. if, in deviation from para. 1 it is agreed that we are obliged to ship the goods, the transport shall be carried out at the Buyer’s expense and the choice of the means of transport and the transport route shall be made at our discretion, unless the Buyer has given us special instructions to this effect. The risk shall pass at the time the goods are handed over by us to the carrier.
Partial deliveries that are reasonable for the buyer are permissible.
(4) Significant, unforeseeable operational disruptions, delivery delays or delivery failures on the part of our suppliers for which we are not responsible, as well as, for example, operational interruptions due to a shortage of raw materials, energy or labor, strikes, lockouts, difficulties in procuring means of transport, traffic disruptions, official decrees or cases of force majeure on our part and on the part of our sub-suppliers shall extend the delivery period by the duration of the impediment to performance, insofar as they are of significance for the ability to deliver the goods. We shall inform the Buyer immediately of the beginning and end of such obstacles. If delivery is delayed by more than one month as a result, both the purchaser and we shall be entitled to withdraw from the contract with regard to the quantity affected by the disruption in delivery, to the exclusion of any claims for damages. The statutory right of the purchaser to withdraw from the contract in the event of a disruption in delivery due to a circumstance for which we are responsible shall remain unaffected.
If the delivery is made in returnable containers, these must be returned within 90 days of receipt of the delivery, emptied and carriage paid. Loss of and damage to a loan packaging shall be borne by the purchaser if this is his responsibility. Loan packaging may not serve other purposes or to hold other products. They are intended only for the transport of the delivered goods. Labels must not be removed.
6. disposable packaging will not be taken back by us. Instead, we will name a third party to the purchaser who will recycle the packaging in accordance with legal and official regulations.
1. the invoice amount is due immediately upon receipt of the invoice and payable without deduction. Timely payment shall only be deemed to have been made if we can dispose of the money with value date on the due date in the account specified by us.
2. in the event of default in payment, the purchaser shall pay interest on arrears at a rate of 9% above the respective base interest rate.
3. the handing over of bills of exchange is not a cash payment and is only permissible with our prior consent on account of payment. Discount and bill charges shall be borne by the purchaser.
4. retention and set-off by the purchaser are excluded, unless the claim made for the exercise of the right of retention or for set-off is undisputed, legally established or originates from the same contractual relationship.
5. non-payment of due invoices or other circumstances which indicate a significant deterioration in the financial circumstances of the buyer after conclusion of the contract shall entitle us to immediately call due all our claims based on the same legal relationship.
VI. RESERVATION OF OWNERSHIP
1. we reserve ownership of the delivery item until full payment of the purchase price. Until all claims arising from the current business relationship with the buyer have been satisfied, the delivered goods remain our property. The reservation of title shall remain in force even if individual claims of ours have been included in current accounts and the balance has been struck and acknowledged. Purchase price claims shall be deemed not to have expired despite payment for as long as a liability under a bill of exchange assumed by us in this connection – such as, for example, within the framework of a check/bill of exchange procedure – continues to exist.
2. any processing or mixing shall be carried out by the Buyer on our behalf without any liability arising for us as a result thereof. In the event of processing or mixing with other items not belonging to us, the Buyer hereby assigns to us co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other processed items as security for our claims, with the proviso that the Buyer shall hold the new item in safe custody for us.
3. the buyer is entitled to dispose of the products in the ordinary course of business as long as he meets his obligations from the business relationship with us in due time.
4. claims arising from the sale of goods to which we are entitled to ownership rights shall be assigned to us by the purchaser here and now as security to the extent of our ownership share in the goods sold.
If the purchaser combines or mixes the delivered goods with a main item of a third party against payment, he already now assigns his claims for remuneration against the third party up to the amount of the invoice value of the delivered goods to us as security.
We accept these assignments.
At our request, the Buyer shall provide us with all necessary information on the stock of goods owned by us and on the claims assigned to us, and shall inform his customers of the assignment.
6. the buyer is obliged to keep the reserved goods carefully and to insure them against loss and damage at his own expense. He hereby assigns his claims from the insurance contracts to us in advance. We accept this assignment.
7. if the value of the securities exceeds our claims by more than 20%, we shall release securities of our choice to this extent at the Buyer’s request.
8. the purchaser’s right to dispose of the products subject to our retention of title and to collect the claims assigned to us shall expire as soon as the purchaser ceases payment and/or suffers a financial collapse. If these conditions occur, we shall be entitled to demand the immediate temporary surrender of the entire goods subject to our retention of title, excluding the right of retention, without setting a grace period or exercising the right of rescission.
9. insofar as the retention of title should not be effective according to the law of the country in which the delivered goods are located, the purchaser shall provide equivalent security at our request. If he does not comply with this request, we may demand immediate payment of all outstanding invoices without regard to agreed payment terms.
VII. CLAIMS FOR DEFECTS
1. the buyer has to examine the goods immediately after their receipt for defects.
2. defects must be reported in writing immediately upon receipt, unless the defect was not recognizable during the inspection. If such a defect becomes apparent later, it must also be reported immediately. The notification must be made in writing and must precisely describe the type and extent of the defect.
3. the buyer is obliged to inform us immediately and to give us the possibility of immediate examination if he wants to claim defects of the products delivered by us.
(4) In the event of subsequent performance, we shall be entitled, at our discretion, to remedy the defect or to make a replacement delivery.
(5) In the event of rectification of defects, we shall bear all expenses necessary for this purpose, provided that these are not increased by the fact that the object of sale was transported to a place other than the place of performance.
(6) We shall only be liable for compensation for consequential damages if we are (jointly) responsible for the occurrence of the defect due to intentional or grossly negligent conduct.
(7) If we are not prepared or not in a position to remedy the defect or make a replacement delivery or if this is delayed beyond a reasonable period of time for reasons for which we are responsible or if the remedy of the defect or the replacement delivery otherwise fails, the Buyer shall be entitled, at its option, to demand the rescission of the contract or a corresponding reduction of the purchase price.
8. in the event of recourse by the entrepreneur (§ 445a BGB), it shall be presumed that defects were not present at the time of the transfer of risk to the purchaser if the purchaser, in accordance with para. VII. 2. (Sentence 1) has dutifully examined, but has not reported any defects, unless this presumption is incompatible with the nature of the item or the defect.
9. if the buyer asserts recourse claims, he must allow himself to be treated towards us as if he had implemented all legally permissible contractual options towards his contractual partner (e.g. refusal of subsequent performance due to disproportionality or limitation of the reimbursement of expenses to a reasonable amount).
(10) We shall be entitled to reject claims under a right of recourse of the Buyer with the exception of claims for new delivery of the goods, provided that we grant the Buyer an equivalent compensation for the exclusion of his rights. We shall only be liable for compensation for consequential damages if we are (jointly) responsible for the occurrence of the defect due to intentional or grossly negligent conduct.
11. claims of the purchaser for damages are excluded, without compensation being granted, unless we are guilty of intent or gross negligence.
1. unless otherwise agreed, all further claims for compensation by the purchaser against us and our employees, workers, staff, representatives and vicarious agents are excluded, in particular a claim for compensation for damage that has not occurred to the delivered goods themselves.
2. the conditions set out in the preceding para. 1. and otherwise liability limitations and exclusions contained in these Terms and Conditions of Delivery and Payment shall not apply insofar as liability on our part is mandatory in cases of intent, gross negligence, injury to life, body and health, or as a result of an assumed guarantee of quality or durability or in accordance with the provisions of the Product Liability Act in particular. The same shall apply in the event of a breach of duty on our part which jeopardizes the achievement of the purpose of the contract, although our liability shall be limited to compensation for typical, foreseeable damage.
IX. PLACE OF PERFORMANCE, JURISDICTION AND OTHER MATTERS
1. place of performance for all liabilities arising from the business relationship or from the individual contract is our respective shipping point, for payment our registered office.
2. the place of jurisdiction is, at our discretion, our registered office or the general place of jurisdiction of the purchaser. This shall also apply to disputes in proceedings concerning documents, bills of exchange or checks. The purchaser is obliged to request us to exercise our right of choice by setting a reasonable deadline.
3. the contractual relations with our customers shall be governed exclusively by the law of the Federal Republic of Germany. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded.
4. data of the buyer will be stored and processed by us only insofar as and in accordance with the relevant legal provisions, as far as this is necessary for the proper execution of the contractual relations.