I. Sphere of validity
1. Our AGB shall be valid for all offers, deliveries and services. Any deviating terms and conditions of the Customer shall obligate us only if we have expressly acknowledged them in writing.
2. Our AGB shall also be valid for any pending and immediately pending future business dealings even if express reference has not been made to them insofar as only our AGB were validly incorporated into a previous agreement.
3. The aforementioned Clause 2 shall not be valid for non-merchants.
1. If something to the contrary has not been expressly agreed, then the delivery shall be made ex works or outgoing delivery warehouse of the Supplier.
2. If the delivery is made in containers on loan, then they must be sent back emptied and freight paid within 90 days after the receipt of the delivery. The Customer shall be liable for any damage to the containers on loan for which it is responsible.
3. Disposable packaging shall not be taken back.
4. a. Our delivery timeframes shall be considered to be non-binding insofar as nothing to the contrary has been agreed. b. In the event that a non-binding delivery timeframe fails to be met, then the Supplier shall be obliged to make the delivery within four weeks’ time after the receipt of a written warning letter from the Customer. Upon the lapsing of this timeframe, the Supplier shall enter into delivery default. c. Force majeure, labour struggles, governmental measures both domestically or abroad for which the Supplier is not at fault, energy shortages for which the Supplier is not at fault as well as unforeseeable and major operational disruptions and operational restrictions which the Supplier experiences which are not its fault; among others, such which are attributable to a restriction on the agreed supplying of raw materials or other force majeure events and which have lasted longer than one week, or are expected to last longer than one week, shall entitle the Supplier to correspondingly suspend the delivery timeframes. However, the requirement for this is that the Supplier has undertaken in advance all efforts and arrangements which are reasonable for it in order to reduce or eliminate consequences of the delivery disruptions. If, owing to the aforementioned sets of circumstances, the delivery is delayed by more than three months, both contractual partners shall have the right to withdraw from the agreement. Damage compensation claims owing to non-performance or untimely performance are excluded. As soon as a delivery hindrance of the aforementioned type is clearly evident, the Customer must be promptly notified of this.
5. Partial deliveries are permitted without any special agreements being required insofar as they are reasonable for the Customer.>
6. Contractual agreements with agreed partial deliveries (call-off orders) shall obligate the Customer to make delivery acceptance of the partial deliveries in monthly intervals that are approximately equal insofar as nothing to the contrary has been agreed.
III. Transfer of risk
For all deliveries, the risk of the accidental destruction and the accidental deterioration of the delivery goods shall be transferred to the Customer at the point in time in which the goods have been surrendered by the Supplier to the carrier or ex works or outgoing delivery warehouse. In the event of weight or quantity discrepancies for which neither the Supplier nor the Customer is responsible, the outgoing delivery weight or the filling quantity shall be prevailing which was determined at the Supplier’s factory.
1. The invoiced amount must be paid within 10 days with a 2 % discount or within 30 days from the date of invoicing without any discounts. Prompt payment shall only then be considered to have been made when the Supplier has access to the funds on the value date in the bank accounts it has designated.
2. From the time that payment comes due, interest must be paid in the amount of 5 % above the respective discount rate of the German Federal Bank, but nonetheless at least 8 %. The Supplier shall be at liberty to document damage compensation claims for higher amounts of interest.
3. Making payment by bills of exchange is permitted only with the Supplier’s prior approval. Any expenses for discounts and bills of exchange shall be charged to the Customer.
4. An essential deterioration of the financial circumstances of the Customer shall entitle the Supplier, notwithstanding any other rights, to execute the orders which it has not yet executed only concurrently against payment. Subject to the same requirements, payment claims of the Supplier against the Customer shall immediately become payable for business dealings insofar as they have been executed. As it so chooses, the Supplier may instead collect the assigned payment claims for payment satisfaction purposes or to demand the return of the goods subject to the reservation of ownership that are in the Customer’s possession at its expense.
V. Reservation of ownership
1. The Supplier shall reserve ownership to the delivery goods until complete payment of the purchase price is made. If the Customer is a merchant, then the Supplier shall moreover reserve ownership to the delivery goods until the complete satisfaction of all claims to which it is entitled against the Customer from the entire business relationship.
2. In the event that the goods supplied are processed or combined with third-party materials, the Supplier shall acquire co-ownership to the new goods created based upon the value of the reserved goods to the value of the new goods created through the processing. For the assessment, the point in time of the processing shall be prevailing both for the value of the reserved goods as well as also for the value of the processing. The Customer shall carry out the processing for the Supplier without the Supplier obtaining any claims against the Supplier owing to the processing. The Customer shall be obliged to carefully store the reserved goods for the Supplier. If the Supplier acquires no co-ownership when multiple sets of goods are combined, the Customer shall already now assign to it the co-ownership stake specified in Section V Clause 2 Items 1 and 2.
3. In the event that the new product is resold by the Customer, for security purposes, in place of the product, the purchase price claim to which the Customer is entitled from the resale shall be assigned to the Supplier upon a proportional basis in accordance with Section V Clause 2 Items 1 and
2. The Customer shall already now assign this proportional purchase price claim to the Supplier who hereby accepts this assignment.
4. If the sold goods are resold by the Customer in unprocessed fashion, then the Customer shall already now assign the claims to which it is entitled from such sales with all ancillary rights to the Supplier up to the amount of its payment claims. The Supplier hereby already accepts this assignment.
5. If the security exceeds the Supplier’s payment claims by more than 15%, then it shall be obliged to release to the Customer the excessive portion of the security to which the Supplier is entitled upon the Customer’s request to do so.
6. The Customer must immediately notify the Supplier in writing if claims are asserted against the reserved goods or goods which are co-owned by the Supplier as well as through payment claims which have been assigned in advance to the Supplier. The Customer must promptly disclose to the institution attempting to undertake such debt enforcement measures and the creditor undertaking such debt enforcement measures that the goods are still subject to the reservation of ownership or are co-owned by the Supplier and that the claim has been assigned to it.
1. The Supplier shall supply the goods according to its product descriptions. They may be regarded to be guaranteed quality features only if they have been expressly designated as such.
2. Notification of obvious defects must be made in writing to the Supplier within an exclusionary period of two weeks after the receipt of the goods.
3. Notification of hidden defects must be made in writing to the Supplier within an exclusionary period of two weeks after becoming aware of the defects.
4. In the event of a justified notification of defects about goods that have not yet been processed or processed goods, the Customer may demand only a replacement delivery. In the event that the replacement delivery is unsuccessful, the Customer shall be entitled only to withdraw from the agreement.
5. The liability of the Supplier from the warranty for indirect damages which are based upon contractually atypical sets of circumstances and thus are not foreseeable for the Supplier shall be excluded.
6. The liability for guaranteed quality features shall not be limited through the aforementioned provisions.
7. If the Customer is a non-merchant in accordance with the AGB-Gesetz [General Business Terms and Conditions Act], then the following shall be valid: a. The notification of hidden defects must be made in writing within the statutory warranty period. This shall also be valid if a longer period is prescribed than the statutory period. b. In the event of a justified notification of defects for goods which have not yet been processed or processed goods, the Customer may demand only a replacement delivery. In the event that the replacement delivery fails, the Customer shall be entitled to choose either to rescind the agreement or reduce the purchase price. c. VI Clause 5 shall not be valid.
VII. Miscellaneous damage compensation claims
1. Damage compensation claims of the Customer owing to the positive violation of a contractual duty that arises from the violations of obligations during contractual negotiations and from tortious acts shall be excluded. This shall not be valid insofar as liability is mandatorily required for personal injury or damage to privately used goods in accordance with the Produkthaftungsgesetz [Product Liability Act] or in cases of intentional wrongdoing or gross negligence upon the part of the Supplier, its legal representative or its vicarious agents. In the event of violations of essential contractual obligations, the Supplier shall also be liable for simple negligence.
2. Insofar as liability upon the part of the Supplier is excluded in accordance with Paragraph 1, this shall also be valid to the benefit of its employees in the event that the Customer takes legal action against them directly.
VIII. Application-related notes
1. The usage instructions issued by the Supplier are only general guidelines. Owing to the diversity of usage purposes for the individual product and owing to the respective special circumstances, the Customer shall be obliged to conduct its own testing.
2. Even in the event that the Supplier provides application-related support to the Customer, the Customer shall assume the risk of its work product’s success. Any claims of the Customer against the Supplier in accordance with VII shall not be excluded.
The Customer may offset against the payment claim only with undisputed or legally upheld counterclaims.
X. Application-related comments
1. The place of performance for all liabilities arising from the business relationship or from the individual agreement shall be the Supplier’s commercial residence.
2. As the Supplier chooses, the legal venue shall be its commercial residence or the Customer’s general legal venue. This shall also be valid for disputes in the instrument, bill of exchange or check process.
3. Clauses 1 and 2 shall not be valid for non-merchants in accordance with the AGB-Gesetz and for small merchants.
XI. Final provisions
1. Ancillary agreements, assurances, amendments or supplements of the agreement must be confirmed in writing by the Supplier.
2. In the event that individual provisions of these AGB or other contractual agreements should, in whole or in part, be invalid, the remaining provisions shall continue to be valid. In place of the invalid provision, the contractual parties shall reach agreement upon another valid provision which most closely corresponds to the commercial intent of the invalid provision. Safety data sheets shall be provided upon request.