General Terms and Conditions of Sale and Delivery
The following General Sales and Delivery Conditions apply to all present and future deliveries by the Seller. They are deemed accepted at the latest upon receipt of the goods. The purchase conditions of the Buyer require the express, written consent of the Seller in order to be effective.
B. Offers, orders
- The offers of the Seller are subject to change regarding price, quantity, delivery time and delivery possibility. The delivery conditions of the Buyer are only effective if confirmed by the Seller in writing.
- The Buyer is bound to his orders for two weeks. An acceptance by the Seller is made by written confirmation or by execution of the order.
C. Delivery deadlines, default
- Delivery deadlines are only legally binding if they are expressly agreed by us in writing. The agreed delivery period and delivery deadlines are met if the delivery has left the factory or warehouse by the end of the period, or if the readiness for shipment has been declared.
- If an agreed delivery deadline is exceeded by us, the Buyer shall set a reasonable grace period for delivery in writing. This grace period is at least two weeks. If the delivery has not been made by the expiry of the grace period, the Buyer must declare within a reasonable period of time whether he withdraws from the contract due to the delay in delivery and/or if he demands damages or if he insists on the delivery.
- In principle, partial deliveries are permitted. The Buyer may refuse partial deliveries if they are not reasonable for him. A partial delivery is considered an independent transaction and can be settled accordingly.
- Delivery obligations or delivery periods are suspended as long as the Buyer is in arrears with his obligation to cooperate or with his payment obligations from this or earlier transactions.
- If justified doubts arise after conclusion of the contract on the solvency or creditworthiness of the customer, for example due to media reports or testimonies, we give the Buyer the opportunity to express his position. If the Buyer is unable to dispel the doubts, we may demand the lodging of a security or the payment step by step.
- Events of force majeure entitle us to postpone the delivery for the duration of the hindrance and a reasonable start-up time or to withdraw from the contract because of the unfulfilled part. Force majeure shall be deemed to be strike, lockout and other circumstances which make the delivery substantially more difficult or impossible. This applies in particular also in case of failure of deliveries from upstream suppliers. However, this does not apply if we are responsible for the circumstances.
- In the event of a general or force majeure-induced shortage of goods, we are entitled to reduce the delivery. In this case, the Buyer may ask us for a declaration as to whether we intend to withdraw from the contract or deliver within a reasonable period of time. If we do not declare this, the buyer is entitled to withdraw.
D. Default of acceptance of the customer
- If the Buyer is in default of acceptance, we are entitled to withdraw from the contract after setting a reasonable grace period and to demand compensation.
- If the delivery is made in partial deliveries at the Buyer’s request and deviating from the order, we shall be entitled to charge the customer for any additional costs incurred. A right of the Buyer to deviating from the order does not exist.
- Orders placed on call are to be accepted within half a year after being declared ready for delivery by us.
E. Delivery, shipment, transfer of risk
- Unless otherwise agreed, the Seller shall choose the shipping method, the shipping route and the carrier.
- Our obligation to deliver is fulfilled with the exit of the goods from the factory, the warehouse or with the handover to the carrier. At this time, the risk passes to the Buyer.
F. Dimensions, weights, delivery quantities
- For billing, the dimensions, weights and quantities specified in the shipping documents of the supplying plant or warehouse are decisive; customary deviations are permitted. Complaints shall be notified in writing no later than 3 working days after receipt of the goods at the place of destination.
- For deliveries of liquids with tank trucks, the records of the calibrated measuring equipment on the transport vehicles are decisive if the goods are delivered by our tank vehicles or by a forwarding agent commissioned by us.
G. Prices, calculation
- For our deliveries, the prices applicable on the day of dispatch are calculated.
- Unless otherwise agreed, all costs and fees associated with the shipment shall be borne by the Buyer.
- Freight-released prices are valid under the condition of unobstructed traffic routes. Extra charges for surcharges such as high or low water, ice etc. are at the expense of the Buyer. The same applies to unloading costs, extinguishing costs and other costs, which are levied in addition to the freight.
- If, after agreeing on the price, freight, duties or other shipping costs are changed or newly introduced, we are entitled to charge additional costs resulting therefrom on the price.
- In case of delivery abroad, the Buyer bears all taxes and costs associated with the border crossing of the goods.
H. Payment, offsetting
- Unless otherwise agreed in writing, payment shall be made immediately upon receipt of the invoice. For agreed terms of payment and discount periods, the later date of delivery or invoice is decisive. For safeguarding the deadline, the day of crediting the invoice amount in our account shall be valid.
- In the case of target overruns, we are entitled to charge interest starting from the due date on the amount of the rate charged to us by banks for overdraft facilities, but at least 8 percentage points above the respective base interest rate (as published by the Deutsche Bundesbank).
- We are entitled to use payments for the settlement of the oldest due claim plus the default interest and costs accrued thereon, in the order of costs, interest, principal claim. A discount on new invoices is inadmissible, as far as older due invoices are unpaid.
- The collection authority of our representatives and employees only exists if it can be proven by certificates.
- The payment by bill of exchange is only permitted based on prior agreement with us. Bills of exchange and checks are accepted only on account of performance. All expenses, fees etc. due to the acceptance of bills of exchange shall be borne by the Buyer
- Failure to comply with the payment conditions or any circumstances that may diminish the Buyer’s creditworthiness may cause us to immediately make all our claims due, regardless of the agreed payment targets, deferrals or the term of the bills of exchange accepted.
- The Buyer may only offset with undisputed or legally established claims.
I. Retention of title
- All delivered goods remain our property (goods subject to retention of title) up to the fulfilment of all our claims, no matter for which legal reason, in particular also up to the redemption of all checks or bills of exchange given by the Buyer, even if payments are made for particularly designated claims.
- Until the purchase price has been paid in full, the reserved goods must be insured by the Buyer against the usual risks.
- The processing and working of the reserved goods are carried out for us as a manufacturer within the meaning of § 950 BGB, without obligation to us. In the case of processing with other goods not belonging to us by the buyer, we are entitled to co-ownership of the new object in proportion to the value of the reserved goods to the other processed goods at the time of processing. The same applies to the new object resulting from the processing as with the reserved goods.
- As long as the Buyer is not in arrears with his payments, he may sell the reserved goods in the ordinary course of business at his normal terms and conditions; this does not apply, however, if a prohibition of assignment regarding the purchase price claim has been agreed between the Buyer and his customers. When reselling, the buyer has to make the transfer of ownership dependent on the full payment of the goods by his customers.
- If the Buyer is in default with his payment obligations or if he violates the provisions of the retention of title stated in this section, we are entitled to prohibit the resale of the reserved goods. The assertion of further rights remains unaffected by this.
- The future claims of the Buyer arising from the resale of the reserved goods are assigned to us as security for our claims, regardless of whether the reserved goods are sold to one or more customers without or after processing. If the value of the existing securities exceeds the claims to be secured by more than 20%, the Seller is obliged to release them at the request of the buyer.
- In the event that the reserved goods are sold by the Buyer together with other goods not belonging to us, the assignment of the purchase price claim for resale shall only apply in the amount of the invoice value of our respectively sold reserved goods. If the reserved goods are resold after processing, in particular after processing with other goods not belonging to us, the assignment shall only apply in the amount of our co-ownership of the sold item.
- If the reserved goods are used by the Buyer to fulfil a contract for work and for work and material, the claim from the contract for work and for work and material shall be assigned to us in advance to the same extent as specified in Point 6 for the purchase price claims. If the value of the existing securities exceeds the claims to be secured by more than 20%, the Seller is obliged to release them at the request of the buyer.
- The Buyer is entitled to collect claims from the resale up to our revocation, which is permissible at any time; we shall make use of our right of withdrawal only in the cases mentioned in Section H Point 6. The Buyer is not authorised to assign the claim to third parties. At our request, he is obliged to inform his customers of the assignment to us and to give us the information and documents necessary for collection.
- The buyer is not entitled to pledges, chattel mortgages or other encumbrances of the reserved goods.
J. Condition of the goods, advice, use
- As a matter of principle, the condition of the goods is that described in the product descriptions, specifications and labels of the seller. Deviations from this are permitted if the suitability for the customary intended use is not significantly impaired. Public statements, recommendations or advertising do not constitute a description of the condition of the purchased object.
- The technical advice given by the Seller in spoken and written form is non-binding and does not exempt the Buyer from the own examination of the goods for their suitability, even if the goods are generally recommended for a specific purpose. The suitability of the goods for a specific purpose is not guaranteed without express and written confirmation.
K. Material defects, liability for defects
- Recognisable defects must be reported to the Seller in writing immediately, no later than 14 days after receipt of the goods at the place of destination, hidden defects must be reported immediately after detection. They can only be asserted as long as part of the goods is unmixed, in the case of packaged goods in their original packaging, and a sample of the rejected goods is sent to the place of delivery immediately.
- In the case of justified notice of defects, we shall be entitled, at our discretion, to remedy the defect by rectifying the defect or providing a replacement. If the subsequent performance fails within a reasonable period, the Buyer can reduce the purchase price or withdraw from the contract. Any claims for damages, taking into account the restrictions in Section L below, remain unaffected.
- The claims of the Buyer for the expenses required for the purpose of subsequent performance, in particular for transport, travel, labour, material costs, are excluded, insofar as the expenses increase because the object of the delivery was subsequently moved to a place other than the contractual place of delivery, unless the shipment complies with its intended use.
- Claims for defects of quality do not exist, as far as only an insignificant reduction of the value or only an insignificant restriction of the usability of the delivery or service exists.
- The claims arising from liability for defects are prescribed one year after the delivery of the goods, unless the law prescribes longer periods, in particular for goods that have been used for a building in accordance with their usual instructions for use and have caused its defectiveness.
L. Other claims, damages
- Unless otherwise stated below, other and further claims of the Buyer are excluded. This applies in particular to claims for damages for breach of obligations arising from the debt obligation and from tortious acts. In particular, we shall not be liable for indirect damages not incurred on the goods themselves as well as lost profits or other pecuniary losses of the Buyer.
- The above limitations of liability shall not apply in case of intent, gross negligence on the part of our legal representatives, executives, employees or other vicarious agents as well as culpable violation of essential contractual obligations. In the event of culpable violation of essential contractual obligations, our liability is limited to the typical damage foreseeable upon conclusion of the contract, unless intent or gross negligence on the part of our legal representatives, executive employees, employees or other vicarious agents.
- The foregoing limitations of liability shall not apply to injury to life, body or health, to the assumption of a guarantee or procurement risk, to mandatory liability under the Product Liability Act and in all cases in which the law prohibits such limitations of liability.
- Insofar as our liability is excluded or limited, this also applies to the personal liability of our legal representatives, executives, employees and other vicarious agents.
M. Returnable containers
- The returnable containers provided by us may only be used for the storage and transport of our products. After emptying, they must be returned to us or our nearest warehouse free of freight and expenses. If the returnable containers remain with the buyer for longer than 3 months for reasons not attributable to us, we are entitled to demand an industry-standard rent.
- In the case of damage to the returnable containers, we have the right to refuse the return and to demand replacement costs or to have the repair carried out at the expense of the Buyer or to demand compensation for the impairment of value. The buyer shall pay rent until the compensation is settled. Every loss shall be reported immediately.
- For the duration of the lease, the Buyer must meet the legal and regulatory requirements for the returnable containers on his own responsibility and at his own expense. The Buyer is liable for the returnable containers provided to him and for the dangers arising from the day of dispatch or from the day of readiness for dispatch until the day of return at our factory or warehouse.
- Insofar as the Buyer is provided with loaned or rented tanks, dispenser and calibration devices for our goods, the above applies accordingly, unless otherwise expressly agreed. The current maintenance and service is borne by the Buyer.
- In the case of containers and transport containers provided by the Buyer, we assume no liability for defects and damage to the goods based on their condition.
N. Final provisions
- The place of performance for deliveries is the respective place from which the delivery is made by us. The place of performance for payments is the seat of our company.
- The place of jurisdiction for all disputes in connection with the delivery business is the seat of our company. This also applies to lawsuits in the bill of exchange and check process. This also applies to all third parties who are liable for the obligation of the buyer. This place of jurisdiction also applies in the event that claims are asserted in the order for payment procedure and if the buyer has transferred his domicile or habitual residence from the Federal Republic of Germany or if his domicile or habitual residence is unknown at the time the legal proceeding is initiated. However, we are also entitled to assert our claims at the place of jurisdiction of the Buyer.
- For all legal relations between the buyer and us, the law of the Federal Republic of Germany applies exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
- If individual provisions of these delivery conditions are or become ineffective, this shall not affect the validity of the remaining provisions. The contracting parties are obliged to agree on a new provision that comes closest to the purpose of the ineffective provision.
Zeller+Gmelin GmbH & Co. KG Version: February 2019