Terms an Conditions
1. ) General information
Our following terms and conditions shall exclusively apply to all deliveries made by us. This shall also apply to all future business, even if reference has not been especially made to these terms and conditions in an individual case. Contrary terms and conditions of the buyer or terms and conditions which deviate from our terms and conditions are hereby explicitly objected to. They shall not oblige us either if we do not explicitly object hereto once again with the conclusion of the contract.
2. ) Offers and orders
Our offers are only binding if they are placed in writing.
Oral offers are without obligation and require our written confirmation in order to be binding.
The orders placed with us are only binding if and insofar as they are confirmed in writing or are satisfied by the prompt sending of the goods. Samples shall be deemed as non-binding samples for viewing. The clause “as normal”, “as already delivered” or similar supplements on orders, exclusively refers to the condition of the goods.
3. ) Purchase price and payment
a) Our prices are principally deemed plus the applicable rate of value added tax.
The calculation is carried out owing to the quantities or weights determined by us or our delivery plant. The calculation can however be carried out owing to the quantities or weights determined by the recipient if the determination has been carried out by means of calibrated scales and the goods have been transported at our risk.
b) The purchase price is payable net cash with the delivery of the goods.
c) We reserve the right to charge maturity interest towards merchants and tradespersons from the due date in the amount of 2 % above the respective discount rate of the Deutsche Bundesbank.
d) In the event of the default we can assert further damages on default.
e) Bills of exchange and cheques will only be accepted as conditional payment. Customary banking charges will be for the account of the buyer.
f) An offsetting against counter-claims is excluded unless the counter-claims are undisputed or have been determined final and binding. The assertion of a right of retention is excluded unless it is based on the same contractual relationship or the counter-claims are undisputed or have been determined final and binding.
g) If the buyer is in default with the payment of one of our invoices then all of our claims from the business relationship shall be due and payable immediately – irrespective of the possible acceptance of bills of exchange. We are then further entitled to request a cash payment before a possible delivery. If the default of payment is not remedied within a reasonable final deadline either then we are entitled to cancel the contract or to request damages owing to non-fulfilment. This shall in particular apply to agreed, however not yet executed follow-up businesses. Should we become aware of facts from which it can be derived that the buyer is no longer creditworthy, we are also entitled to request a cash payment before delivery of the goods if it had been otherwise agreed previously and to deem our claims due and payable.
4. ) Assumption of risk
The shipment of the goods e.g. by freight forwarding, railway and post is carried out at the costs and risk of the buyer. The buyer shall also bear the transport risk if carriage paid delivery has been especially agreed as an exception.
5. ) Reservation of title
a) We reserve the right to the ownership to the delivered goods until the full payment of the agreed remuneration. If the buyer is a merchant, this shall apply until the full payment of all claims including secondary claims, claims for damages and the redemption of bills of exchange and cheques.
b) The buyer is entitled to process and sell the goods by taking the following provisions into consideration
aa) The authorizations of the buyer to process reserved goods in proper business transactions shall end irrespective of our revocation, which is possible at all times, with the suspension of the buyer’s payment or with the application for or opening of the bankruptcy and composition proceedings.
bb) By the processing of the reserved goods the buyer, which processes the goods on our behalf, shall not acquire the ownership to the new object according to § 950 BGB [German Civil Code].
If the reserved goods are processed, mixed or combined with other objects, the buyer shall acquire the co-ownership of the new object in the ratio of the value of the reserved goods to the total value.
cc) The buyer hereby assigns its claims from the resale of the reserved goods with all secondary rights to us pro rata, also to the extent that the goods have been processed, mixed or combined and we have obtained co-ownership hereto in the amount of the value of the owned reserved goods.
From this assignment we are entitled to a fraction of the respective purchase price claim which corresponds with the ratio of the value of the reserved goods to the value of the object. If the buyer has sold the claim within the framework of the real factoring then it hereby assigns the claim against the factor which replaces this to us. If the claim from the resale is entered into a current account relationship by the buyer with its purchaser, the buyer shall assign its claim from the current account relationship to us in the amount of the value of the reserved goods. We hereby accept these assignments.
dd) We will not collect the assigned claims as long as the buyer satisfies its payment obligations or its asset circumstances do not deteriorate substantially. The collection authorization shall lapse with a default of payment and essential deterioration in the assets of the buyer. In this case we are authorized by the orderer to inform the purchasers of the assignment and to collect the claim ourselves. The buyer undertakes, at our request, to provide an exact list of the claims to which it is entitled with the names and addresses of the purchasers, amount of the individual claims, invoice date, etc. and to provide us all information which is necessary for the assertion of the assignment claims and to permit the examination of this information. Amounts, which are received by the buyer from assigned claims, are to be stored separately from the transfer.
The buyer is entitled to collect the claim itself as long as we do not give it any other instructions.
c) We hereby now already release fully paid deliveries according to the instructions of the buyer if the collateral existing by the reservation of title exceeds the claim which is to be secured by 10 %.
d) Pledging or assignment as collateral of the reserved goods or the assigned claims are not permitted. We are to be informed of attachments immediately by stating the attachment creditor.
e) In case of default of payment we are entitled to take the goods back. In the event that the reserved goods are taken back, it is, however, only deemed a cancellation of the contract if we explicitly declare this. We can satisfy our claims from the reserved goods which have been taken back on the free market.
f) The buyer shall store the reserved goods free of charge on our behalf. It has to insure itself against customary risks such as fire, theft and water to the customary extent. The buyer hereby assigns its claims for compensation, to which it is entitled against insurance companies or other parties obliged to pay compensation from damages of the stated kind to us in the amount of its claims.
We hereby accept the assignment.
6. ) Packaging
a) Insofar as our deliveries are carried out in bundles on loan, these are to be returned to us by no later than within 4 weeks after their arrival to the buyer in an impeccable and emptied condition at its own expense and risk or, if applicable, free to our vehicle against confirmation of receipt.
b) If the buyer does not satisfy obligations stated under a) within the deadline we are entitled to charge a reasonable fee for the time which exceeds 4 weeks, and, in return, after the unsuccessful setting of a deadline, by offsetting the afore-mentioned fee, to request the replacement price.
c) The affixed marks may not be removed. Packaging on loan may not be exchanged by mistake and not filled with other goods. The buyer shall be liable for reductions in value, exchange by mistake and loss irrespective of the fault.
Decisive is the findings upon receipt in our plant. A use as storage container or forwarding to third parties is not permitted insofar as this was not agreed in advance.
d) With deliveries in tank wagons the buyer has to ensure at its own responsibility, the quickest emptying and freight-free return shipment to us or the stated address. In the event of an extension to the immobilization time in its plant for which the buyer is responsible, the tank wagon rent, which is incurred for this purpose, shall be at the expense of the buyer.
7. ) Delivery
a) The agreed delivery deadlines and dates shall always be deemed as approximate if no fixed date has been explicitly agreed.
b) With deliveries, which do not affect our plant (third party deals), the delivery date and deadline are observed if the goods leave the delivery plant in such plenty of time that, with the customary transport time, the delivery arrives at the recipient in time.
c) Events of force majeure – which also includes restrictions under public law as well as strike and lock out – entitle us to cancel the contract.
Damages owing to the non-fulfilment or default are excluded in such cases. This shall also apply with a self-delivery which is not in time by our sub-suppliers, for which we are not at fault.
We are obliged to inform the buyer of such events immediately.
The buyer is then also entitled to cancel the contract.
d) Claims for damages in the event of the delay in delivery are excluded insofar as the damages are not due to wilful or grossly negligent conduct by us, our legal representatives or vicarious agents or caused by the culpable breach of a duty which is essential for the execution of the contract.
8. ) Warranty
The buyer has to inspect the goods and their packaging immediately upon delivery according to the trade customs. If the goods are delivered in shipping pieces, then it additionally has to examine the labelling of each individual shipping piece for correspondence with the order. If the goods are delivered in tank wagons or tanks, which do not remain at the buyer, then it has to check the accompanying transport documents which are stipulated under public law for correspondence with the order.
In addition, it has to convince itself before the unloading of the tank by taking a sample of the condition of the goods as per contract.
In case of justified complaints, subsequent improvement or substitute delivery will be carried out at our choice. If the subsequent improvement or substitute delivery fails the buyer is entitled to request redhibition (reversal of the contract) or reduction (reduction of the purchase price).
9. ) Damages
Claims for damages of the buyer against us, our legal representatives and vicarious agents, no matter for what legal grounds, in particular owing to faulty delivery, from a fault upon conclusion of the contract, positive breach of a claim or illicit act, are excluded insofar as the damages are not due to wilful or grossly negligent conduct by us, our legal representatives or vicarious agents or are caused by the culpable breach of an obligation which is essential for the execution of the contract, or the absence of warranted properties, or the Product Liability Act.
10. ) Final provisions
The place of jurisdiction and place of performance for the assertion of all claims, also from bills of exchange and cheques is Bad Oeynhausen.