Standard Terms and Conditions for Supply and Payment
1. General provisions & scope of application
Our Standard Terms and Conditions for Supply and Payment shall apply exclusively. We do not accept any standard terms used by the Customer which contradict, or deviate from, these Standard Terms and Conditions, except if we expressly agree in writing to the application of such terms. Our Standard Terms and Conditions shall even apply if we, being aware of terms used by the Customer which contradict, or deviate from, our Standard Terms and Conditions, perform delivery to the Customer without reservations.
Any agreements between the Customer and ourselves relating to the performance of this Agreement are set out in writing in this Agreement.
Our Standard Terms and Conditions shall only apply in the relationship with businesses as defined in sec. 310 (1) of the German Civil Code (BGB).
The Standard Terms and Conditions shall also apply to all future transactions with the Customer.
If an order is placed making reference to a specific offer we submitted, the special terms specified in such offer shall apply in conjunction with our Standard Terms and Conditions.
2. Offer & offer documents
If the order is to be considered as an offer as defined section 145 BGB, we have the right to accept this offer within 2 weeks.
Our offers are non-binding, except if the order confirmation states otherwise.
We reserve all title rights and copyrights in illustrations, drawings, calculations and other documents. The same shall apply to written documents which are marked as confidential. The Customer shall not forward such documents to third parties except with our expressed written consent.
3. Prices & terms of payment
Except if the order confirmation states otherwise, our prices shall be "ex works", not including packaging; packaging shall be invoiced separately.
If the period between the conclusion of the Agreement and the agreed delivery date is more than 4 months, we reserve the right to adjust our prices in accordance with any increase in the costs of materials and wages on which these prices are based. Price adjustments are permitted prior to the expiry of the above period if the Customer has entered into a contract for the performance of continuing obligations with us (Dauerschuldverhältnis).
Our prices do not include applicable value added tax; VAT shall be shown separately in the invoice at the rate applicable on the invoice date.
Our invoices for chemical products and standard equipment are due for payment within 30 days from the invoice date, without deductions, or within 8 days with 2 % cash discount. In the event of a permitted payment by bill of exchange, any expenses relating to the bill of exchange, as well as collection or discount charges shall be borne by the Customer. Our invoices for contract treatments shall be payable immediately and net.
The following payment terms shall apply to invoices for custom designed products: 30 % upon placement of the order, immediately; 30 % when products are ready for shipment, immediately; 30 % 30 days from issue of the invoice; 10 % upon commissioning, however, no later than 40 days from the time when products are ready for shipment if there is a delay in acceptance for which we are not responsible - in each case net. Plants and vessels are payable after having fulfilled their function, irrespective of the chemical process used.
The Customer shall only have the right to set off claims if the counter-claims have been determined in a legally binding manner, are uncontested, or have been acknowledged by us. Furthermore, the Customer shall have a retention right provided that the counter-claim is based on the same contractual relationship.
4. Delivery period
The commencement of a delivery period specified by us requires that all technical questions have been clarified.
Compliance with our delivery obligation furthermore requires that the Customer fulfils its obligations in a timely and proper manner. We reserve the right to invoke the defence of non-performance of the contract.
Should the Customer be in default of acceptance, or should the Customer breach other cooperation obligations, we shall have the right to request compensation for any damage incurred in this context, including additional expenses, if any. We reserve the right to assert claims going beyond this.
Provided that the requirements set out in clause 4.3 are fulfilled, the risk of accidental destruction or accidental deterioration of the purchased object shall pass to the Customer at the time when the Customer first was in default of acceptance or default of debtor.
Our liability shall be governed by the statutory provisions if the purchase contract on which the delivery is based is a time deal (Fixgeschäft) as defined in section 286 (2) no. 4 BGB or section 376 of the German Commercial Code (HGB). Our liability shall also be governed by the statutory provisions if the Customer, due to a delay in delivery for which we are responsible, is justified in asserting that any interest in the further performance of the Agreement has ended.
Our liability shall furthermore be governed by the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; culpable acts by our representatives and vicarious agents shall be attributable to us. If the default in delivery is not due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable damage which typically occurs in this type of contract.
Our liability shall also be governed by the statutory provisions if the delay in delivery for which we are responsible is due to a culpable breach of an essential contractual obligation; however, in this event, our liability for damages shall be limited to the foreseeable damage which typically occurs in this type of contract.
Otherwise, we shall be liable in the event of a delay in delivery for each full week of delay in the form of a lump-sum compensation payment amounting to 3 % of the value of the delivery, however, not exceeding a total of 15 % of the value of the delivery.
Any other claims and rights which the Customer may have by law shall remain reserved.
5. Transfer of risk & packaging costs
Except if the order confirmation states otherwise, delivery shall be made ex works.
If the goods are shipped, we shall have the right to choose the method of transport and the route of transport, to the exclusion of any type of liability. This exclusion of liability shall not apply if one of our executive employees acted at least with gross negligence when making the choice.
Transport packaging and other packaging as provided for in the Packaging Ordinance (Verpackungsordnung) shall not be taken back; the above shall not apply to exchangeable and returnable packaging material. The Customer is obligated to dispose of the packaging at its own cost.
It shall be our obligation to select the packaging, in accordance with aspects of expediency. We shall, if possible, comply with any special requests which the Customer may have, without this, however, leading to any obligations for us.
Except if agreed otherwise, partial deliveries shall be permitted, and shall be regarded as independent deliveries with regard to payment and complaints.
Goods for which notice of readiness for delivery is given must be collected immediately; otherwise, we shall have the right to store such goods at our discretion and at the Customer’s cost and risk, and to invoice them as delivered goods. We shall have the right to invoice storage costs either as actually incurred or, alternatively, at 1 % of the invoice amount for each month or part thereof.
In the event of a sale by delivery to a place other than the place of performance (Versendungskauf), the risk of accidental destruction or accidental deterioration of the goods shall pass to the Customer at the time when the goods are handed over to the forwarder or carrier, or, at the latest, when the goods leave the factory or the warehouse.
Any default in acceptance on the part of the Customer will be treated in the same way as a handing over of the goods to the carrier.
We shall take out transport insurance, except if the Customer objects to this in writing. The costs of the transport insurance shall be borne by the Customer.
6. Liability for Defects
The Customer’s claims in the event of a defect require that the Customer has duly fulfilled the examination and reporting obligations incumbent upon the Customer pursuant to section 377 HGB.
If the purchased product is defective, the Customer has the right to choose subsequent performance in the form of either rectification of the defect or delivery of a new product which is free of defects. In the event of a rectification of the defect, we shall only bear the expenses incurred up to the amount of the purchase price.
Should replacement or rectification fail, the Customer shall, at its choice, be entitled to either withdraw from the contract or reduce the purchase price.
Our liability shall be governed by the statutory provisions if the Customer asserts claims for damages due to intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. If we are not accused of an intentional breach of contract, our liability for damages shall be limited to the foreseeable damage which typically occurs in this type of contract.
Our liability shall be governed by the statutory provisions if we culpably breach an essential contractual obligation; however, in this event, liability for damages shall be limited to the foreseeable damage which typically occurs in this type of contract.
If the Customer has a claim for damages in lieu of performance, our liability shall, also with regard to clause 6.3, be limited to the foreseeable damage which typically occurs in this type of contract.
Liability due to the culpable causing of death, bodily injuries or adverse health effects shall remain unaffected; this also applies for mandatory liability under the Product Liability Act (Produkthaftungsgesetz).
Except if agreed otherwise above, liability shall be excluded.
The limitation period for claims on account of defects shall be 12 months from the time of transfer of the risk.
The limitation period for recourse claims pursuant to sections 478, 479 BGB shall remain unaffected; this period is 5 years from the time of delivery of the defective product.
7. Total liability
Any liability for damages going beyond the provisions in clause 6 shall be excluded, irrespective of the legal nature of the asserted claim. The above shall in particular apply to claims for damages due to culpa in contrahendo, other breaches of obligations, or claims in tort for compensation for property damage pursuant to section 823 BGB.
In as far as liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, staff, workers, representatives and vicarious agents.
8. Reservation of title
We reserve title to the goods up until all payments due under the business relationship with the Customer have been received. In as far as we agree that the Customer may settle the purchase price debt by means of the cheque/bill of exchange procedure (Scheck-Wechsel-Verfahren), the reservation shall also cover the redemption by the Customer of the bill of exchange accepted by us, and shall not expire upon crediting of the received cheque in our favour. Should the Customer act in breach of contract, in particular in the event of default in payment, we shall, after setting an adequate period of grace, have the right to take back the goods. If we take back the goods this shall constitute a withdrawal from the Agreement. After having taken back the goods, we shall have the right to exploit them; the proceeds from such exploitation, less adequate exploitation costs, shall be set off against the Customer’s debts.
The Customer shall be obligated to treat the purchased goods with due care; the Customer shall in particular be obligated to sufficiently insure them at the Customer’s own cost at their replacement value against damage by fire, water or theft. Should maintenance and inspection work be necessary, the Customer shall perform such work in good time and at his own cost.
In the event of seizures or other encroachments by third parties, the Customer shall immediately inform us in writing, in order to allow us to take legal action pursuant to section 771 of the Civil Procedure Code (ZPO). Should the relevant third party not be able to reimburse us for court or out-of-court costs of a law suit pursuant to section 771 ZPO, the Customer shall be liable for any loss incurred by us.
The Customer shall have the right to sell the purchased goods within the course of its ordinary operations; however, the Customer hereby assigns to us all claims up to the amount of the total invoice value (including VAT) which the Customer obtains against its clients or other third parties, irrespective of whether the purchased goods are sold without or after processing. The Customer shall continue to be entitled to collect such claims, even after they have been assigned. Our right to collect the claim ourselves shall remain unaffected. However, we undertake to refrain from collecting the claim ourselves as long as the Customer fulfils its payment obligations from the generated proceeds, is not in default of payment and has, in particular, not filed for the opening of bankruptcy, composition or insolvency proceedings, or suspended payments. Should this be the case, we shall have the right to request that the Customer notify us of the assigned claims and their debtors, provide us with all information required for the collection of such claims, hand over the associated documents, and notify the debtors (third parties) of the assignment.
Any processing or transformation of the purchased goods by the Customer is always carried out on our behalf. If the purchased goods are processed together with other objects which do not belong to us, we shall obtain co-ownership in the new object, in the proportion of the value of the purchased object (total invoice amount including VAT) in relation to the value of the other processed goods at the time of processing. The provisions regarding purchased goods delivered under reservation of title shall also apply to the object created by processing.
If the purchased goods are inseparably compounded with other objects which do not belong to us, we shall obtain co-ownership in the new object, in the proportion of the value of the purchased object (total invoice amount including VAT) in relation to the value of the other compounded goods at the time of compounding. Should the objects be compounded in a manner that the Customer’s object is to be regarded as the principal object, it shall be deemed to have been agreed that the Customer transfers to us a pro-rata share of co-ownership. The Customer shall keep the sole ownership or co-ownership created in this manner on our behalf.
In order to secure our claims against the Customer, the Customer also assigns to us the claims which it obtains against a third party due to the joining of the purchased object with real estate.
We undertake to release collateral to which we are entitled at the Customer’s request in as far as the realisable value of our collateral exceeds the claims to be secured by more than 10 %; we shall be free to select the collateral which will be released.
9. Place of jurisdiction & place of performance
If the Customer is a business (Kaufmann), our registered place of business shall be the place of jurisdiction; however, we may also file a claim against the Customer with the courts at the Customer’s place of residence.
The law of the Federal Republic of Germany, to the exclusion of the UN Sales Convention, shall apply.
Except if the order confirmation states otherwise, our place of business shall be the place of performance.
DEWE Brünofix GmbH Fabrik für Metallchemie Pruppacher Weg 8 91126 Rednitzhembach Germany