General Terms and Conditions of Delivery and Payment for the Coating Industry in the recommended version as approved by the Federal Cartel Office on 11 July 2003
Scope of application
- Our following General Terms and Conditions of Delivery and Payment are only intended for use in relation to companies. They do not apply to consumers.
- Our General Terms and Conditions of Delivery and Payment apply exclusively. We do not acknowledge any terms and conditions of the purchaser that conflict with or deviate from our General Terms and Conditions of Delivery and Payment unless we have expressly agreed to their validity in writing. Our offers are non-binding, unless expressly agreed otherwise.
- Supplementary agreements, changes and amendments to these conditions shall be agreed in writing.
- The agreed prices are quoted “ex works” and do not include the statutory value-added tax applicable upon the day of delivery.
- The weights, numbers of items and quantities determined by us shall be decisive for invoicing unless the purchaser objects without undue delay, but no later than 14 days after receipt.
- Should we generally reduce or increase our prices during the term of the contract, the changed prices shall apply for the quantities still to be purchased. In the event of a price increase, the purchaser shall be entitled to withdraw from the contract without undue delay, but at the latest within four weeks of receiving notification of the price increase in writing. The withdrawal does not affect deliveries made prior to the price increase.
Application consulting services
- Should we provide consulting services, we do so to the best of our knowledge. Any details and information provided regarding the suitability and application of the delivered goods shall not release the purchaser from the responsibility to carry out its own tests and trials. This applies in particular if dilutions, hardeners, additional coatings or other components are added which were not purchased from us.
- The purchaser is required to collect the goods at the agreed delivery date or, if a delivery date was not firmly agreed upon, without undue delay upon notification of provision at the place of performance in accordance with paragraph IX. 1. If the purchaser defaults on acceptance of the goods, we shall be entitled to dispatch them at the purchaser’s expense or, if not otherwise possible, to store them outdoors if necessary. In this case, we shall not be liable for accidental destruction, loss or damage to the goods. If the goods need to be stored, we shall be entitled to invoice the goods after one week has elapsed.
- If, in deviation from paragraph 1, it has been agreed upon that we are required to dispatch the goods, transportation shall be effected at the expense of the purchaser, and the choice of means and route of transportation shall be at our discretion in the absence of particular instructions.
The risk shall pass at the point in time when the goods are handed over by us to the carrier.
- Partial deliveries that are reasonable for the purchaser are permissible.
- Significant, unforeseeable and operational disruptions for which we are not to blame, delays in delivery or failures to deliver on the part of our suppliers, as well as interruptions of operations due to a shortage of raw materials, energy or labour, strikes, lockouts, difficulties in providing adequate means of transportation, traffic disruptions, administrative acts and cases of force majeure, either on our part or on the part of our subcontractors, shall extend the delivery period by the duration of the incident preventing performance, to the extent relevant for the ability to deliver the goods. We will inform the purchaser of the beginning and end of any such disruptions without undue delay. If delivery is thereby delayed by more than one month, both the purchaser and ourselves are entitled to withdraw from the contract with regard to the quantity affected by the delivery disruption, excluding any claims for damages. The purchaser’s statutory right to withdraw from the contract in the event of a delivery disruption due to a circumstance for which we are responsible shall remain unaffected.
- If the delivery is made in returnable containers, these must be returned empty and carriage paid within 90 days of receipt of delivery. The expense incurred due to any loss of and/or damage to a returnable packaging shall be borne by the purchaser if responsible for the loss and/or damage. Returnable packaging may not be used for other purposes or for storing other products. They are only intended for the transportation of the goods supplied. Labels may not be removed.
- We do not take back any disposable packaging. Instead, we will provide the purchaser with the name of a third party who will recycle the packaging in accordance with the Packaging Ordinance.
- The invoice amount is payable within 30 days after the invoice date without deduction. Timely payment shall only be deemed to have been effected if the due amount is available to us on the due date and on the account specified by us.
- In the event of delayed payment, interest on arrears shall be payable at the rate of eight per cent above the respective base interest rate. The proof of higher or lower damages caused by delay remains at the discretion of the two parties.
- Bills of exchange may not be submitted as cash payment and only with our prior consent. Any discount and/or bill charges shall be borne by the purchaser.
- Retention and offsetting due to disputed claims on the part of the purchaser are excluded.
- The non-payment of any due invoices or other circumstances that indicate a substantial deterioration of the financial situation of the purchaser after conclusion of the contract entitle us to the immediate repayment of all our claims based on the same legal relationship.
Retention of title
- We reserve ownership of the delivery item or items until the purchase price has been paid in full. The delivered goods remain our property until settlement of all claims arising from the current business relationship with the purchaser. The retention of title shall remain in force even if individual claims are included in our current account and the balance has been drawn up and acknowledged. Despite payment, purchase price claims shall be deemed not to have expired as long as a liability under bills of exchange assumed by us in this connection – such as, for example, in the context of a cheque/bill of exchange procedure – continues to exist.
- The purchaser performs any processing or mixing on our behalf without any obligation arising to us therefrom. In the event of processing or mixing with other items that do not belong to us, the purchaser transfers to us the co-ownership of the new item at the ratio of the invoiced value of the retained goods to the value of the other processed items in order to secure our claims, subject to the proviso that the purchaser keeps the new item in safe custody on our behalf.
- The purchaser is entitled to dispose of the products in the ordinary course of business as long as the purchaser fulfils its obligations from the business relationship entered into with us in a timely manner.
- Claims from the sale of goods in which we are entitled to ownership rights are already assigned to us by the purchaser as security to the extent of our ownership share in the sold goods. If the purchaser combines or mixes the delivered goods with a principal item of third parties in return for payment, the purchaser assigns any claims for payment against the third party up to the amount of the invoice value of the delivered goods to us as security. We hereby accept these assignments.
- At our request, the purchaser is required to provide us with all necessary information on the inventory of goods owned by us and on the claims assigned to us, and is also required to inform his customers of the assignment.
- The purchaser is required to keep the retained goods in safe custody and to insure them at its own expense against loss and damage. The purchaser hereby assigns his claims from the insurance contracts to us in advance. We hereby accept these assignments.
- If the value of the collateral exceeds our claims by more than 20 per cent, we shall release collateral of our choice at the purchaser’s request.
- The purchaser’s right to dispose of the products subject to our retention of title and to collect the claims assigned to us shall expire as soon as the purchaser discontinues payment and/or suffers deterioration of its assets. If these requirements are met, we shall be entitled to demand the immediate provisional surrender of all goods subject to our retention of title, excluding the right of retention, without setting a grace period or exercising the right of withdrawal.
- If the retention of title should not be effective under the law of the country in which the goods supplied are located, the purchaser shall be required to provide collateral of equivalent value at our request. If the purchaser fails to comply with this request, we can demand immediate payment of all outstanding invoices, regardless of the agreed payment terms.
- The purchaser is required to inspect the goods for defects immediately upon receipt.
- Obvious defects must be notified in writing without undue delay, however no later than 14 days after receipt. Any hidden defects must be notified at the latest within 14 days of their detection. The notification must be made in writing and must specify the exact nature and extent of the defect.
- In the case of properly notified and justified complaints, we are entitled to either rectify the defects or replace the goods. In the event of rectifying the defects, we shall be required to bear all expenses necessary for this purpose, assuming these expenses are not increased by the fact that the item purchased has been taken to a place other than the place of performance. If we are not prepared or unable to remedy the defect or provide a replacement, or if we are unable to remedy the defect or deliver a replacement within a reasonable period of time for reasons for which we are responsible, or if the remedy of the defect or the replacement delivery fails, the purchaser shall be entitled to choose whether to demand cancellation of the contract or a corresponding reduction in the purchase price.
- All defect claims lapse 12 months after receipt of the goods by the purchaser, provided the delivered goods have not been used in accordance with their usual application for a building structure and caused its defectiveness.
- In the case of entrepreneur’s recourse (section 478 of the German Civil Code), we are entitled to reject the purchaser’s right of recourse with the exception of claims for new delivery of the goods and reimbursement of expenses, provided we grant the purchaser equivalent compensation for the exclusion of its rights. Any claims for damages on the part of the purchaser shall be excluded without compensation being granted.
- Unless agreed otherwise, all further claims for compensation made by the purchaser against us and/or our employees, workers, staff members, representatives and vicarious agents are excluded, in particular any claim for compensation for damages that have not occurred to the delivered goods themselves.
- Limits and exclusions of liability contained in these General 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 German Product Liability Act (Produkthaftungsgesetz) a liability on our part is mandatory. The same shall apply in the event of a breach of duty on our part, which endangers the achievement of the purpose of the contract, although liability shall be limited to compensation for typical, foreseeable damage.
Place of performance, place of jurisdiction, miscellaneous
- The place of performance for all liabilities arising from the business relationship or from the individual contract is our respective place of dispatch, for payment our registered office.
- The place of jurisdiction is, at our discretion, either our registered office or the purchaser’s general place of jurisdiction. This shall also apply to disputes in the legal proceedings concerning documentary evidence, bills of exchange or cheques.
- The laws of the Federal Republic of Germany are exclusively applicable to contractual relationships with our customers. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG – “Vienna Sales Law) of 11 April 1980 is excluded.
- The purchaser’s data will be stored and processed by us to the extent necessary for the proper execution of contractual relationships.