1)
Consumers in terms of the conditions of sale are natural persons with whom trading relations are established and who are not thereby performing commercial or independent professional duties. Traders in terms of the conditions of sale are natural persons, legal persons or business partnerships with legal capacity with whom trading relations are established and who act in the practice of a commercial activity or self-employed occupational activities. Customers in terms of the conditions of sale are both consumers and traders.
2)
Our conditions of sale apply exclusively; we do not recognise conditions of the customer which are contrary to or deviate from our conditions of sale unless we have expressly agreed to their validity in writing. Our conditions of sale also apply if, being aware of the conditions of the customer which are contrary to or deviate from our conditions of sale, we carry out the delivery to the customer without reservation.
3)
All agreements which are reached between ourselves and the customer for the purpose of implementing this contract are to be recorded in writing in this contract.
4)
If we trade with traders, our conditions of sale also apply to all future trading with the trader.
§ 2 – Offer and conclusion of contract
1)
Our offers are open and non-binding. Declarations of agreement and all orders require our written or electronically written confirmation to be legally valid.
2)
Drawings, images, dimensions, weights or other performance data are only binding if this is expressly agreed in writing.
3)
Our sales employees are not permitted to reach oral side agreements or to provide oral assurances which extend beyond the contents of the written contract.
4)
We retain the ownership rights and copyright to all images, samples, drawings, calculations and other documentation; these must not be made accessible to third parties. In particular, this applies to all written documents which are designated as “confidential”; prior to these being forwarded to third parties, the customer requires our express and written agreement.
5)
The conclusion of contract occurs upon reservation of the correct and punctual completion of the delivery by our suppliers. This only applies if we are not at fault for the failure to deliver, particularly upon entering into a congruent hedging transaction with our own supplier. The customer will be notified of the unavailability of the service without delay. Payments will be reimbursed without delay.
§ 3 – Prices/conditions of payment
1)
Insofar as the confirmation of order does not state anything to the contrary our prices apply “ex-works” excluding packaging, which will be invoiced separately.
2)
In the case of trading with traders, the legal rate of value added tax is not included in our prices; it is shown separately at the applicable legal rate at the date of the invoice. In the case of trading with consumers, the legal rate of value added tax is included in the purchase price.
3)
Cash discounts require express written agreement.
4)
Insofar as the confirmation of order does not state anything to the contrary, the net purchase price (without discount) is due for payment within thirty days from the date of the invoice. Consumers must pay interest on all consumer accounts that are in arrears at 5 %-points above the current base interest rate. Traders must pay interest on all consumer accounts that are in arrears at 8 % above the current base interest rate. If we are able to demonstrate that we have suffered any greater loss due to the arrears we shall be entitled to a higher level of compensation. The customer shall be entitled, however, to demonstrate to us that we have incurred a far smaller loss or no loss at all as a result of the arrears of payment.
5)
The customer’s right to offset is only available to the customer if their counter claims are determined to be legally valid, undisputed, or it is recognised by us. In addition, the customer is authorised to exercise their right of retention in so far as their counter claim is based on the same contractual relationship.
§ 4 – Delivery times
1)
Delivery times or deadlines, which can be agreed on a binding or non-binding basis, require the written form.
2)
The start of a delivery time that we specify requires the previous clarification of all technical matters.
3)
If the customer falls into default of acceptance or infringes any other obligation of co-operation, we shall be entitled to request compensation for any losses we have suffered up to that point in time, including additional costs. In this case, the risk of an accidental loss or deterioration of the purchased item shall be transferred to the Customer at the point in time at which they fell into default of acceptance.
4)
We are permitted to carry out partial deliveries and provide partial services at any time.
§ 5 – Dispatch and transfer of risk
1)
The risk is transferred to the trader as soon as the consignment has been handed over to the person completing its transport or it has left our factory for the purpose of consignment. If the dispatch is delayed at the request of the trader, the risk is transferred to them upon notification of the readiness to dispatch. Insofar as the trader so wishes, we will buy transport insurance coverage for the delivery, the costs of which are to be paid by the trader. In the event of trading with consumers, the risk of the possible loss or possible deterioration of the purchased item shall only be transferred upon the handing over the item to the consumer; this also applies to mail order purchases.
2)
The handing over is also deemed to be effectuated if the customer is in default of acceptance.
3)
In the case of collection at the point of delivery, it shall be incumbent upon the customer or their authorised representative to load the vehicle and observe the statutory requirements regarding the transporting of dangerous goods.
4)
The customer bears sole responsibility for the unloading and storing of the goods.
5)
In the case of deliveries in tankers and donning tanks, the customer shall ensure that its tanks and any other storage containers are in a flawless technical condition and will themselves be responsible for connecting the filling pipes to their collecting system. Our obligation is limited to the operation of the technical equipment of the vehicle.
6)
If our employees provide added assistance with the unloading or discharging, and thereby cause damage to the purchased item or other damage, they are considered to have been acting at the sole risk of the customer and not as our vicarious agents.
7)
The above regulations apply accordingly in the case of delivery by third party haulage companies if it is possible to derive liability on our part as a result of their conduct. The liability of the third party remains unaffected.
§ 6 – Packaging
1)
Where we deliver goods in returnable packaging, such returnable packaging is to be returned to us empty and in good condition no later than four weeks from its arrival at the customer and at the customer’s own risk and expense; alternatively, it can – where applicable – be returned to our delivery vehicle free of charge against receipt.
2)
If the customer fails to meet their obligations as stated in paragraph (1) in due time, we are entitled to calculate a reasonable fee for the time exceeding the period of four weeks, and if a deadline set for the return has passed without result, to demand the payment of the replacement price of the returnable packaging with the offsetting of the aforementioned fee.
3)
The attached labelling may not be removed. Returnable packaging must not be swapped nor filled with other products. The customer is liable for deterioration of value, substitution or loss
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irrespective of fault. The condition of the packaging upon receipt at our premises is authoritative. Use as a storage container or handing over to a third party is prohibited unless this has been agreed in advance.
4)
With deliveries by tank wagons, the customer is responsible for the fastest possible emptying of tank wagon and for their carriage-paid return delivery to us or to the specified address. If the trader is responsible for an extension to the time that the tank wagon spends at their works, the arising rental costs for the tank wagon are payable by the trader.
§ 7 – Warranty for defects
1)
If the buyer is a trader, we shall provide a warranty for defective goods at our discretion by either remedying the defect or delivering a replacement.
2)
If the buyer is a consumer, they can choose whether the rectification should occur with the remedying of the defect or the delivery of a replacement. We are, however, permitted to reject the chosen method of rectification if it is only possible at a disproportionate cost and the alternate method of rectification does not result in any considerable damage to the consumer.
3)
If the rectification fails, the customer is generally able to request either a reduction in the consideration (discount) or the rescinding of the contract (withdrawal). The customer does not have any right of withdrawal in the case of a minor infringement of contract, especially minor defects, however.
4)
If the purchaser is a trader, regulation § 377 HGB (German Commercial Code) is unaffected. The consumer must notify us in writing of obvious defects within a period of two months following the date at which the contractually infringing state of the goods was determined. The granting of this deadline is based on our receipt of the notification. If the consumer fails to provide such notification, the guarantee rights shall lapse two months after the defect is discovered. This does not apply in the event of malice on the part of the seller. The consumer shall bear the burden of proof for the date on which the defect was discovered. If the consumer was persuaded to purchase the item through inaccurate claims by the manufacturer, the consumer shall bear the burden of proof for their purchasing decision. With used goods, the consumer shall bear the burden of proof for the item’s defective state.
5)
If, following a failed attempt at rectification, the customer chooses to withdraw from the contract due to a legal or material defect, they shall not be entitled to any additional damage claims due to the defect. If the customer chooses to claim damages following a failed attempt at rectification, the goods shall remain with the customer if this is considered reasonable. The compensation for damages shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply if we maliciously committed the contractual infringement.
6)
For traders, the guarantee period is one year from the delivery of the goods. For consumers, the grace period is two years as from the delivery of the goods. With used goods, the grace period is one year from delivery of the goods. However, this shall not apply if the customer does not notify us of the defect in a timely manner (clause 4 of these conditions).
7)
If the purchaser is a trader, in general, only the manufacturer’s product description is agreed to determine the characteristics of the goods. Public statements, claims or advertisements by the manufacturer do not constitute any contractually guaranteed characteristics of the goods.
8)
If the customer receives faulty assembly instructions, we shall only be obliged to provide fault-free assembly instructions, and only if the defect in the assembly instructions prevents the proper assembly.
9)
We do not provide the customer with warranties in the legal sense Manufacturers’ warranties remain unaffected by this.
§ 8 – Limitations of liability
1)
In the event of slightly negligent infringements of duty, our liability shall be limited to the average damages that are foreseeable and typical in contracts appertaining to the type of goods. This also applies to slightly negligent infringements of duty by our legal representatives or vicarious agents. In the case of companies, claims for damages will be excluded irrespective of the infringement of the obligation, including unlawful acts, insofar as intent or gross negligence do not apply. In the case of the infringement of key contractual duties, we are liable for all negligence, but only to the level of the foreseeable damage. Insofar as our liability is excluded or limited, this also applies
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to our staff, employees, representatives and vicarious agents.
2)
The limitations and exclusions of liability in clause 1) do not apply to claims which arise due to malicious conduct on our part, or a liability for guaranteed characteristics, for claims according to the Product Liability Act (Germany) or for damages resulting from injuries to life, limb or health.
3)
Claims for damages by the customer due to a defect shall expire one year after delivery of the goods. This does not apply if accusations of gross negligence can be made against us or in the event of health or bodily injury or the loss of life for which we are culpable.
§ 9 – Retention of ownership
1)
In contracts with consumers, we shall retain ownership of the goods until the purchase price has been paid in full (conditional goods). In contracts with traders, we shall retain ownership of the goods until all of the receivables owing to us either now or in the future that arise from our business relationship with the trader have been to us paid in full (conditional goods).
2)
We are entitled to insure the conditional goods at the customer’s cost against theft, breakage and damage caused by fire, water or other damage insofar as the customer has not entered into such an insurance policy.
3)
The customer may neither pawn the conditional goods nor acquire them as a security. In the case of seizure and confiscation or other third-party disposals, the customer shall be required to inform us of such acts without delay so that we can assert our ownership rights. If the third party is unable to reimburse us the judicial or out of court costs in this context, the customer shall be liable for them.
4)
In the case of conduct on the part of the customer which is contrary to the contractual agreement and, in particular, in the event of default of payment, we are entitled to withdraw from the contract and demand the return of the goods.
5)
The processing or alteration of the conditional goods takes place for us as a manufacturer in accordance with § 950 BGB (German Civil Code) without any obligation on our part. If
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the conditional goods that are in our ownership are processed together with other objects, then we acquire the co-ownership of the new product in relation to the fair market value of our goods in comparison with the value of the other processed objects at the time of processing. The customer will keep the new item for us at no cost with the customary care and attention.
6)
The trader is entitled to process and sell the conditional goods in terms of the ordinary course of business as long as they are not in default. The claims arising from the resale or on any other legal basis (insurance, unlawful act) in relation to the conditional goods (including all current account receivables) are assigned entirely by the trader to us to serve as security. We grant them the revocable authorisation to collect the receivables assigned to us on their own behalf. This authorisation of collection may only be revoked if the trader fails to meet their payment obligations properly.
7)
We undertake upon request to release the collateral to which we are entitled such that their value exceeds the receivables to be secured that have not yet been settled by more than 10 %.
§ 10 – Legal venue/place of fulfilment
1)
Insofar as the customer is a merchant, a legal entity under public law or a special fund under public law, the legal venue shall be the location of our registered office; however, we shall also be entitled to take legal action against the customer at their local court. The same shall apply if the customer does not have a general place of jurisdiction in Germany or if their residence or permanent address is not known at the time that the legal action is launched.
2)
Insofar as the confirmation of the order states nothing to the contrary, our registered office is the place of fulfilment.
§ 11 – Applicable law, partial invalidity
1)
The laws of the Federal Republic of Germany apply to these conditions of sale and to the totality of the legal relationships between ourselves and the customer, excluding conditions of the UN Convention on Contracts for the International Sale of Goods.
2)
If any of the provisions in these conditions of sale or a provision in the scope of the other agreements is or becomes ineffective, the effectiveness of the remaining provisions or agreements shall remain unaffected.
