Version: April 2018
1.1 The following terms and conditions shall apply exclusively to all business relations between us and our customers if the customer is a commercial enterprise, a legal entity under public law or a special fund under public law.
1.2 We shall only recognise deviating, conflicting or supplementary terms and conditions of the customer if we have expressly agreed to the validity of such in writing.
1.3 Our terms and conditions do not apply to transactions with end consumers. This does not apply to the provision of the retention of title according to note 5. Retention of title is also agreed with the end consumer.
1.4 The contractual relations with our customers shall be governed exclusively by the law of the Federal Republic of Germany. The applicability of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
1.5 Our offers are subject to confirmation unless expressly agreed otherwise.
1.6 We reserve the right to make technical changes as well as changes in shape, colour and/or weight within the scope of what is reasonable.
1.7 If our terms and conditions are already known to the customer, they shall also apply to future business relations with no new notification required. Acceptance of our deliveries or services shall be assumed to be acceptance of our terms and conditions.
2.0 Conclusion of contract, obligations, agreement on quality:
2.1 The order confirmation and/or the delivery note, stating the article number and the article text, contains our delivery obligation and specifies the nature of the contractual products to be delivered, taking into account the contents of the technical data sheet and material safety data sheet applicable for the respective product. For storage stability, intended use, gloss level, drying times, restrictions on combination options, we refer to the contents of the data sheet and material safety data sheet and latest application technology. It is the customer’s responsibility to use this information. If the customer does not have the current version of the data sheet and material safety data sheet, this information is available in the current version on the Internet or customers can request the information from us.
2.2 For the agreement on performance and quality, we exclude advertising information, the content of our brochures, insofar as no reference is made to such information in the written order confirmation and/or delivery note and/or public statements by us, our employees and sales persons including commercial agents.
2.3 We provide technical advice to the best of our knowledge. All data and information on applications of our products do not constitute an agreed quality and do not release purchasers from carrying out their own checks and tests on the suitability of the products for the intended processes and purposes.
2.4 This applies in particular if thinners, hardeners, additional coatings or other components are added that were not purchased from us.
3.0 Prices and terms of payment:
3.1 The invoice amount shall be paid on the due date without deduction. Default shall exist in accordance with § 286 BGB (German Civil Code). For bank transfers, payment shall only be deemed to have been made if we can dispose of the funds on the value date on the account specified to us. Discounts and rebates shall only be granted on the basis of special agreements. A discount on new invoices shall be excluded insofar as older invoices due have not yet been paid. The issuance of bills of exchange is not a cash payment and is only permissible with our prior consent on account of performance. Discount and bill charges shall be borne by the customer.
3.2 Unless expressly agreed otherwise, our prices shall apply in accordance with the respectively valid price list ex our warehouse plus packaging and the respectively valid national rate of VAT. The calculation of VAT for customers outside Germany shall not apply in accordance with the statutory provisions and tax guidelines as periodically amended.
3.3 If deviating payment terms are not stated in the order confirmation, default shall arise in accordance with § 286 BGB (German Civil Code). Interest shall be charged by us at the statutory rate as a minimum (§ 288 BGB (German Civil Code)). The user and the customer are entitled to prove higher or lower damages.
3.4 Our customer may only set off undisputed or legally established claims against our claims. Offsetting with disputed claims is excluded between us and the customer.
3.5 Cheques are only accepted on account of performance.
3.6 In the event of non-compliance with payment terms, we reserve the right to demand an immediate cash payment of our entire outstanding claims…
4.0 Delivery periods and dates, transfer of risk:
4.1 Delivery periods and dates are determined based on the individual agreements.
4.2 We shall exclude compliance with the delivery periods and deadlines if we are prevented from meeting delivery periods and deadlines and from fulfilling our obligations due to circumstances beyond our control, e.g. operational disruptions, delays at our suppliers, obstruction in the delivery of raw materials and auxiliary materials to us due to official measures, embargoes, strikes, lockouts, force majeure or damage arising from natural hazards at our premises or those of our suppliers. These shall be extended by the duration of the obstruction. Should delivery become impossible for the above reasons, we and our customer shall be mutually released from any existing obligations. In this case, no claim for damages shall apply.
4.3 If the delivery is carried out in returnable containers, these must be returned empty and carriage paid within 90 days of receipt of the delivery. Loss of and damage to returnable packaging shall be borne by the customer if it has not been returned to us, if the customer is liable for such loss or damage. Returnable packaging may not be used for other purposes or to contain other products. They are only intended to transport the delivered goods. No labels or lettering must be removed.
4.4 We do not take back disposable packaging, we will nominate a third party to the customer who recycles the packaging in accordance with the German packaging ordinance.
4.5 Partial deliveries that are reasonable for the customer are permitted.
4.6 If a collection is agreed, the risk of accidental loss and accidental deterioration of delivery items shall pass to the customer upon notification of availability, at which time the goods are handed over by us to the carrier. The shipping method and route will be chosen by us. If the customer requests a different method and route, any additional costs arising shall be borne by the customer.
5.0 Retention of title:
As the seller, we retain title to the delivered goods until all the payment obligations of the customer have been fulfilled. § 449 BGB (German Civil Code) is expressly exclude. We shall release the securities to which we are entitled at the customer’s request insofar as the value of our securities exceeds the claim to be secured by over 20%; the choice of the securities to be released is incumbent on us. The customer may process, mix, combine and sell the goods in the correct and customary course of business. The customer is not permitted to pledge or assign the goods as security. Any confiscation or seizures by third parties must be reported immediately. The customer hereby assigns to us all claims arising from the resale of goods subject to retention of title; we accept such assignments. The same shall apply to claims arising from contracts for services and business management, upon the performance of which the retention of title shall expire. In the event of the sale of goods in which our customer has co-ownership with his customer after processing, mixing or blending, the advance assignment shall include a part of the claim in the amount of the invoice value of the processed, combined or blended goods of the seller; the same shall apply if our goods subject to retention of title are resold with other goods. Should the customer fail to fulfil their obligations towards us, in particular if a payment is not made in accordance with the contract or if the customer is facing financial difficulties, the seller may take possession of their goods.
6.0 Failure to perform, breach of duty, material defects/legal defects, liability:
6.1. Our customers shall immediately inspect the products delivered by us for compliance with the quality agreements, in particular for material defects and defects of title, and to notify us of these in writing within a period of 14 days.
6.2 In the event of any defects in the performance of our obligations and the agreement on the quality of our goods, we reserve the right to rectify the defect within a reasonable period of time at our discretion through a replacement delivery or repair. Should the breach of duty or deviation from the quality agreement occur after the further use of our products at a place of delivery of the customer to their customer, the customer is under an obligation to grant us the opportunity to exercise our claims for rectification.
6.3 In the event of minor negligent breaches of duty, our liability shall be limited to the direct average damage foreseeable based on the type of goods and typical for the contract. This also applies to minor negligent breaches of duty by our legal representatives or vicarious agents. We shall not be liable to commercial enterprises for a minor negligent breach of immaterial contractual obligations. The above limitations of liability do not affect claims of the customer arising from product liability. Furthermore, the limitations of liability do not apply in the event of bodily injury, damage to health or loss of life of the customer that is attributable to us.
6.4 Claims for damages by the customer for defects shall become time-barred after one year from delivery of the goods. This shall not apply if we are liable for malicious intent.
6.5 In the event of entrepreneurial recourse (§ 445a BGB), it is presumed that defects were not present at the time of the transfer of risk to the purchaser if the latter conscientiously examined the goods in accordance with para VII 2. (sentence 1), but failed to report any defects, unless such presumption is incompatible with the nature of the item or the defect.
6.6 If the purchaser asserts a right of recourse, the purchaser accepts to be treated as if they had implemented all the legally permissible contractual options with respect to their contractual partner (e.g. refusal of subsequent performance due to disproportionality or limitation of the reimbursement of expenses to a reasonable amount).
6.7 We may reject the purchaser’s claims for recourse apart from claims for a new delivery of the goods, provided that we grant the purchaser equivalent compensation for the exclusion of their rights. We shall only be liable for compensation for consequential damage if we are (jointly) responsible for the occurrence of the defect due to intentional or gross negligence.
7.0 Declarations of guarantee:
7.1 The issuance of a declaration of guarantee requires a separate, written declaration.
7.2 A declaration of guarantee is only valid if it is signed by a managing director with sole power of representation or by a managing director with joint power of representation with another managing director or authorised signatory.
7.3 Specifications for quality and performance contain no declarations of guarantee. The acceptance of implied warranties or guarantees is expressly excluded.
8.0 Data protection:
8.1 We reserve the right to collect, store, modify, transmit or use customer data which we have received from our customers arising from the commercial relationship for our own purposes, insofar as the customer is able to dispose of this data himself.
8.2 Consent is granted for each customer in the form of a customer data sheet that must be signed.
9.0 Place of performance and jurisdiction:
9.1 If our customer is a merchant or a legal entity under public law or a special fund under public law, we agree that:
a) The place of performance for all obligations arising from the commercial relationship or the individual contract is our respective shipping point, and our registered office for payments.
b) The place of jurisdiction is, at our discretion, our registered office or the general place of jurisdiction of the customer. This shall also apply to disputes in proceedings concerning documents, bills of exchange or cheques.
10.0 Severability clause:
Should one or more provisions of our General Terms and Conditions be invalid, the remaining provisions shall remain in force. The invalidity of one or more provisions of our General Terms and Conditions of Delivery and Payment shall not affect the overall invalidity or ineffectiveness of the General Terms and Conditions.