General terms and conditions
General terms and conditions of sale, delivery and payment
The following terms and conditions shall apply exclusively to all deliveries and services – including those to be rendered in future – including advisory services regarding application technology and any other supplementary services. Variances from these terms and conditions and collateral agreements must be agreed in writing; the requirement for the written form may only be dispensed with if this is stated in writing by both parties.
II. Quotation and order clarification
Our quotations are not binding; transactions, agreements and statements only become binding through our written confirmation.
1. 1. The prices are to be understood as net prices ex works or store, including standard packaging. The value added tax is charged additionally at the rate applicable on the day of delivery.
2. The prices valid on the day of delivery apply.
IV. Terms of payment
1. Unless otherwise agreed, payment is due without deduction 30 days after the invoice date. If payment is made within 8 days of the invoice date, we grant a 2% discount on the value of the goods. We are entitled to charge interest from the due date at 3% above the Bundesbank discount rate, plus VAT, without the need for default on payment to have occurred.
2. Bills of exchange are only accepted after prior agreement, and only by way of payment where the right to return them at any time is retained, and where all liability for proper protest is excluded. All costs arising from the acceptance and enforcement of the bills of exchange, including discount and bill charges, are borne by the buyer.
3. Counter-claims shall only entitle the buyer to retention or off-setting of payment if they are uncontested or established in law.
4. Where the payment deadlines are not met and if payment difficulties become known to us, we are entitled to declare all outstanding debts due and to require advance payment for all outstanding deliveries.
V. Delivery, dates and terms of delivery
1. Our delivery obligations under the business relationship are subject to our being properly supplied ourselves.
2. We endeavour to adhere to the dates and terms of delivery specified; they are only binding, however, if we have expressly recognised them as such. Partial deliveries are permitted. Dates and terms of delivery are considered to have been met where dispatch occurs in good time.
3. We are only liable for non-performance of deliveries and non-adherence to dates and terms of delivery in cases of intent and gross negligence.
4. Force majeure, including strike, lockout, mobilisation, war, blockades, import and export prohibitions, shortages of raw materials and fuel, fire, traffic blocks, interruptions in operation or transport and other conditions that render timely delivery significantly more difficult or impossible for us or our own suppliers entitle us to delay delivery or, if we so choose, to withdraw, wholly or in part, from the portion of the contract that remains unfulfilled.
5. The statement from our own suppliers constitutes sufficient evidence that we are prevented from making the delivery under point 4.
6. We reserve the right to select the location of production.
Upon transfer to the first forwarding agent or freight carrier, at the latest however upon leaving the works or store, the risk is always transferred to the buyer. This also applies where we have taken over the insurance of the goods and where we ourselves have arranged the freight paid delivery and/or transportation.
VII. Quality, advisory services regarding application technology, quantities/weights
1. In the absence of any other agreement, the goods to be delivered are to be of standard commercially available quality. If a sale is made based on a sample, this sample only constitutes a model for the approximate description of the goods.
2. The buyer is always obliged to examine the goods upon receipt as regards their suitability for his intended use. We accept no liability for this.
3. For reasons connected with the production process, we reserve the right to make deliveries that are short or long by up to 10% when the deliveries are of special products or of mats/boards in varying cuts.
VIII. Warranty, liability
1. Notification of defects, which also include the absence of expressly warranted qualities, must be given in writing immediately upon discovery, and all processing must be stopped. Notification of apparent defects is excluded after 1 week from the receipt of the goods, and notification of hidden defects is excluded after 3 weeks. Notification of defects is always excluded after processing, mixing or onward dispatch of the goods.
2. The buyer is obliged to make the allegedly defective goods, or samples thereof, available to us immediately at his own expense. If the buyer breaches this obligation, all defect claims are null and void.
3. In the event of timely and justified notification of defects, we shall take the goods back and in their place may choose either to deliver correct goods or to refund the purchase price. We are also entitled to refund the reduced value if we so choose.
4. Where materials are manufactured by other parties, we accept the same responsibility that our supplier accepts towards us. More extensive claims are excluded.
5. Further claims of the buyer are excluded, especially claims for redhibitory action, compensation and remuneration of damages resulting from defects, and also costs for waiting times, reworking, wages, storage costs etc.
6. In the event of defective partial deliveries, the buyer cannot assert rights resulting from the defects regarding the remaining portions.
7. Wear parts and breakable goods are excluded from the liability for material defects unless we are liable under point X.
IX. Retention of title
1. The seller retains the title to the goods until all outstanding debts owed to the seller by the buyer and arising from the business relationship, including sums that become due in the future, also from any contracts concluded simultaneously or subsequently, have been paid. This also applies if individual or all outstanding debts of the seller have been included in a current account and the balance has been drawn and recognised.
2. The buyer is only entitled to resell the retained goods in the correct course of business when he herewith directly assigns to the seller all receivables that arise for him through the resale to customers or third parties. If retained goods are sold, whether unprocessed or after processing or amalgamation with objects that are wholly the property of the buyer, the buyer now directly assigns in full all receivables that will arise through the resale. If retained goods are sold by the buyer – after processing/amalgamation – with goods not belonging to the seller, the buyer must assign to the seller the receivables that arise through the resale, to the value of the retained goods, together with the old auxiliary rights and with priority before the rest.
The seller accepts the assignment. The buyer is still empowered to collect these receivables after the assignment. The seller has the authority not to collect the receivables as long as the buyer fulfils his payment and other obligations correctly. The seller is entitled to require that the buyer informs him of the assigned receivables and their debtor, and that the buyer provides all necessary information for collection of the debt, that he provides the corresponding documents and informs the debtors of the assignment.
3. Any processing of the retained goods is done by the buyer for the seller, without any obligations arising from this for the latter. In the event of processing, amalgamation, mixing or commixture of the retained goods with other goods that do not belong to the seller, the degree of co-ownership of the new product by the seller that arises from this is in proportion to the value of the retained goods to the other goods processed at the time of processing, amalgamation, mixing or commixture. If the buyer acquires sole ownership of the new product, the contracting parties are in agreement that the buyer shall accord the seller co-ownership of the new product in proportion to the value of the processed, amalgamated, mixed or commixed retained goods, and that this proportion shall be held for the seller free of charge.
4. If any liability relating to a bill of exchange of the seller is founded in connection with the payment of the purchase price by the buyer, the retention of title and the outstanding debt arising from deliveries made do not lapse until the bill of exchange is redeemed by the buyer as the drawee.
5. If the value of the existing securities exceeds the value of the secured debt by more than 10%, the seller is obliged to release to that extent upon request by the buyer.
6. The buyer must inform us immediately if the retained goods and assigned claims are seized or otherwise compromised; costs arising in our defence shall be borne by the buyer.
X. Confirmation of arrival
As from 1.1.2014, we shall be obliged by a law initiated by the Federal Ministry of Finance to present a confirmation of arrival for tax-free intra-Community deliveries in accordance with Section 17a para.2 (2) of the VAT Implementing Regulation (UStDV). For our customers, this means that after the delivery has taken place they must confirm the receipt of the goods in writing. This confirmation must contain the company stamp, a signature (additionally in block capitals), and the month and year of delivery at the place of destination. We shall send you the document in question – we have enclosed a sample along with this letter – together with each invoice. You can return the document to us by e-mail (firstname.lastname@example.org), fax (+49-201-8799199) or post.
In connection with this, please note that without this document we shall be obliged to treat the tax-free delivery as liable for taxation.
We very much regret all of the additional effort and expense that this legal regulation will mean for you, but would like to thank you in advance for your kind support in this matter.
XI. Further claims, partial nullity
1. The rights and claims of the buyer are finally regulated in these terms and conditions. The buyer has no further rights and claims unless we have expressly recognised these. Compensation claims arising from impossibility of performance, from negligence in the conclusion of the contract, from positive breach of contract and impermissible conduct are expressly excluded here, as far as this is legally admissible. This also especially applies to the completeness and correctness of advisory services regarding application technology in combination with deliveries or of processing instructions and directives.
2. If compensation claims or other claims for payment arise, of whatever kind and on whatever legal grounds, in connection with our deliveries and/or services or due to delays in or non-fulfilment of these for binding legal reasons, the claims shall in every case be limited to the extent of damages that we could demonstrably have anticipated at the conclusion of the contract, and at most to the invoice value of the individual delivery connected with the claim; in the event of partial deliveries and/or services, this shall be limited to the corresponding proportion.
3. Even in the event of the legal ineffectiveness of individual provisions or parts, the remaining terms and conditions shall continue to apply in their full scope.
XI. Jurisdiction and place of fulfilment
German law applies. The place of fulfilment and jurisdiction for both parties is Essen; this also applies to complaints in the bill of exchange or cheque payment processes. We are also entitled to pursue our claims in the jurisdiction of the buyer.
Dated 23. Nov. 2013
TECHNO PHYSIK Engineering GmbH
Post office box 22 01 08