I.Scope of application
- Our terms of delivery and payment apply exclusively. We do not recognise any terms and conditions of the buyer that contradict or deviate from our terms and conditions of delivery and payment, unless we have expressly agreed to their validity in writing. Our offers are subject to change unless otherwise expressly agreed.
- Our terms and conditions of delivery and payment apply to all future purchase contracts, even if no longer expressly referred to.
II. Quantities and prices
- Quantity details are approximate. Deviations of 10% downwards or upwards shall be deemed to be in accordance with the contract. The actual delivery quantity will be invoiced according to the contractually agreed prices.
- The agreed prices are - unless otherwise agreed- ex works excluding freight, customs, ancillary import costs and packaging plus the statutory value-added tax applicable on the day of delivery. If order-related costs change significantly after conclusion of the contract, the contracting parties will agree on an adjustment of the prices.
- Unless delivery dates are expressly designated as "fixed dates", stated delivery dates are only approximate dates. We will make efforts within a reasonable framework to meet the stated deadlines. Correct and proper self-delivery is a prerequisite for this. If the buyer is in default with the acceptance of the goods, we are entitled, at our own discretion, to dispatch them at the buyer's expense or - if not otherwise possible, if necessary - also store them outdoors. In this case, we are not liable for the accidental destruction, loss or damage of the goods. In the case of storage of the goods, we are entitled to invoice the goods after one week.
- Partial deliveries which are reasonable for the purchaser are permissible.
- Significant, unforeseeable operational disruptions, delays in delivery dates or delivery failures by our suppliers for which we are not responsible, as well as operational interruptions due to a shortage of raw materials, energy or labour, strikes, lockouts, difficulties in procuring means of transport, traffic disruptions, acts of God and cases of force majeure at our and our sub-suppliers 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 will inform the buyer immediately of the beginning and end of such obstacles. If the delivery is thereby delayed by more than one month, both the buyer and we are entitled, to the exclusion of claims for damages, to withdraw from the contract with regard to the quantities affected by the delivery disturbance. The purchaser's statutory right of withdrawal in the event of a delivery disturbance due to a circumstance for which we are responsible shall remain unaffected.
- If the buyer collects the goods, the buyer or his agent is responsible for loading the vehicle and observing the statutory regulations, in particular, the regulations on load safety. Unloading and storage of the goods is, in any case, the responsibility of the buyer. For deliveries in the silo vehicle, the buyer is obliged to empty the silo vehicle within a maximum of 2 (in words: two) hours after arrival at the place of delivery. In the event of longer unloading times, the standing costs will be passed on to the buyer.
IV. Claims for defects
- The buyer must inspect the goods for defects immediately upon receipt.
- Obvious defects must be reported in writing immediately but at the latest within one week after receipt. Hidden defects which cannot be discovered within this period even after careful inspection must be reported to us within one week of their discovery. The notification must be made in writing and must specify the type and extent of the defect.
- The delivery of goods designated as "NT", "off-grade", "re-granulate" or "grinding material" is subject to the exclusion of any warranty. Complaints are excluded after acceptance of goods designated in this way.
- In the case of duly raised and justified notifications of defects, we are entitled, at our discretion, to remedy the defect or make replacement deliveries. In the event of rectification of defects, we shall bear all expenses required for this purpose, insofar as these are not increased by the fact that the purchased item was taken to a place other than the place of performance. 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 the measured deadlines for reasons for which we are responsible or if the remedy of the defect or replacement delivery fails for any other reason, the buyer shall be entitled at their discretion to extend the cancellation of the contract or a corresponding reduction in the purchase price.
- All claims for defects are subject to a limitation period of 12 (twelve) months after receipt of the goods by the buyer. This does not apply to claims for damages which are aimed at compensation for bodily injury or damage to health due to a defect for which we are responsible or which are based on our gross negligence or the gross negligence on the part of one of our vicarious agents.
- All claims of the buyer due to defects of the goods which are not directed towards the compensation of bodily injury or damage to health or are not based on our gross negligence or the gross negligence of one of our vicarious agents are limited to the sales price of the product in question.
If no explicit due date is given, our invoices are due immediately without deduction. If due dates have been agreed, timely payment has only been made if we can access the money with value date on the due date in the account specified by us.
VI. Reservation of proprietary rights
- We shall retain title on all goods sold until full payment of all present and future claims under the present purchase agreement and all ongoing business transactions (secured claims).
- The goods subject to retention of title may not be pledged to third parties or assigned as collateral until the secured claims have been paid in full. The buyer must notify us immediately in writing if and insofar as third-party access is made to that which belongs to us.
- If the purchaser acts in breach of contract, in particular, if the purchase price due is not paid, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and the withdrawal. If the buyer does not pay the purchase price due, we may assert these rights only if we have previously set the buyer an appropriate deadline for payment to no avail or if setting such deadline may be waived according to the provisions of law.
- The buyer is entitled to resell or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions are supplementary:
- The retention of title extends to the full value of the products resulting from the processing, mixing or combination of our products, whereby we shall be deemed manufacturer. If, in the case of processing, mixing or connection with goods of third parties, their ownership rights persist, we acquire co-ownership in the ratio of the invoice values of the processed, mixed or connected goods. In all other cases, the same shall apply to the resulting product as to the goods delivered subject to retention of title.
- The buyer assigns any claims against third parties arising from the resale of the goods or products, in total or in the amount of our possible co-ownership share, to us as a security pursuant to the aforementioned paragraph. We herewith accept this assignment. The obligations mentioned in section 2 of the buyer shall also apply in respect of the assigned claims.
- In addition to us, the buyer shall remain entitled to collect these claims. We undertake not to collect the debt as long as the buyer fulfils their payment obligations to us, does not fall into arrears, has not made any application to open insolvency proceedings, or there is no other fact preventing them from making their payments. If this is the case, we can demand that the purchaser notifies us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment.
- If the realisable value of the securities exceeds our claims by more than 10%, we will release securities at our discretion at the buyer's request.
- If the retention of title should not be effective according to the law of the country in which the delivered goods are located, the buyer must provide an equivalent security upon our request. If they do not comply with this demand, we can demand immediate payment of all outstanding invoices regardless of agreed payment targets.
- Unless otherwise agreed, all further claims for compensation by the buyer against us and our employees, workers, representatives and vicarious agents are excluded, in particular, a claim for compensation for damage which has not occurred to the delivered goods themselves.
- The limitations and exclusions of liability contained in these Terms and Conditions of Delivery and Payment shall not apply in cases of intent, gross negligence, injury to life, limb and health or as a result of an assumed guarantee of quality or durability or if in accordance with the provisions of the Product Liability Act, liability on our part is mandatory. The same applies to the slightly negligent breach of essential duties (obligations whose breach jeopardises the achievement of the purpose of the contract) as well as to the breach of cardinal obligations (duties whose fulfilment enables the proper execution of the contract in the first place and on whose compliance the purchaser regularly relies), but only for the foreseeable, contract-typical damage. We shall not be liable for the slightly negligent breach of other obligations than the above.
VIII. Place of performance, jurisdiction and miscellaneous
- The place of performance for all obligations arising from the business relationship or from the individual contract is Bergisch Gladbach.
- The place of jurisdiction is either our registered office or the general place of jurisdiction of the purchaser, at our discretion. This also applies to disputes in documentary proceedings, bill of exchange or cheque proceedings and preliminary injunction proceedings as well as independent evidence proceedings.
- The law of the Federal Republic of Germany is exclusively applicable to the contractual relationships with our customers. The application of the Uniform Law on the International Sale of Goods (ULIS) and the United Nations Convention on Contracts for the International Sale of Goods (CISG - "Vienna Sales Convention") of 11 April 1980 is excluded.
- We are entitled to store and process the data of the buyer, as far as this is necessary for the proper handling of the contractual relations.