1. Scope of these Terms and Conditions
The provision of goods, services and quotations by the Vendor is made exclusively on the basis of these terms and conditions of business. They also apply to all future business relations, including where they are not expressly agreed to once again. Any other arrangements shall apply only where an express agreement is made on an individual basis. Any contradictory statements made by the Purchaser in reference to its own terms of business and purchase are hereby refuted.
2. Quotation and signature of contract
Quotations are non-binding and subject to confirmation. In order to be effective in law, declarations of acceptance and all orders must be confirmed by the Vendor in writing or by means of written telecommunication. This also applies to additions, amendments and subsidiary agreements. Confirmations by the Vendor sent by e-mail or by fax are effective even without a signature. The binding declaration of weight used for calculation shall be made at the Vendor`s factory, or at its delivery points. The Purchaser is at liberty to be represented at this event.
Prices are calculated at the prices stated in the confirmation of order by the Vendor. Unless otherwise agreed, prices are understood to be ex works Leverkusen, inclusive of normal packaging, exclusive of statutory value added tax.
4. Delivery and performance lead time
Delays in the supply of the goods and services caused by force majeure and due to events that create considerable difficulties to the Vendor in supplying the goods or that make it impossible to do so – this includes interruptions to operation or disruption to traffic, fire, flood, shortages of labor, raw materials or fuel, strikes, lock-outs, official intervention and other cases of force majeure, even where such events may occur at the Vendor`s suppliers or its sub-suppliers, which partially or completely hinder pro-duction or dispatch – shall, for the period, scope and the consequences of the inter-ference, release the Vendor from its obligation to effect the relevant supply. Where the Vendor`s own packaging and shipping materials are used, the Vendor retains the right to invoice the Purchaser for any loss arising from the delayed return of such. The Ven-dor shall endeavor to maintain the agreed delivery lead time for its own products and trade goods. To the extent that the Vendor is responsible for its non-adherence to bindingly promised lead times and dates, or is delayed, the Purchaser may claim compensation for the delay in the amount of 0,5 % for each full week of the delay, however to a maximum of 5 % of the value of the invoice for the delayed goods and services concerned. Any further claims are excluded, unless the delay has been caused by at least gross negligence on the part of the Vendor. In the event that an agreed delivery lead time is exceeded, with the fault lying with the Vendor, a situation of delay in supply shall be given only once an appropriate period has been set in which to comply. In cases where the Vendor is paying the cost of freight, the Vendor reserves the right to choose the route and mode of shipment. The Vendor is entitled to make partial deliveries and supply partial services.
5. Bearer of risk
All consignments travel at the risk of the recipient, unless, in individual cases, an agreement has been made that the Vendor is to bear the risk.
6. Reservation of property rights
Until all debts of the Purchaser (including all debit balances from the current account) due to the Vendor for whatever reason in law, now or in the future, have been paid, the Vendor shall be granted the following securities, which it may choose to upon demand, provided that its value exceeds the value of the debt by more than 20 %.
The goods supplied by the Vendor shall remain its property until all its claims for payment have been paid in full (including all debit balances on the current account).
Any processing or reformulation shall always be made for the Vendor as the manufacturer, however without obligation on the Vendor. If the (co-)ownership should expire due to the products being combined, it is hereby agreed that the co-ownership by the Purchaser in the unitary object shall be transferred in the proportion of its value (value of the invoice) to the Vendor. The Purchaser shall grant (co-)ownership to the Vendor free of charge. Goods in which the Vendor holds (co-)ownership rights shall be described hereinafter as reserved goods. The Purchaser shall be entitled to sell the reserved goods in the course of normal business, provided that it is not in arrears of payment. The goods are not permitted to be pledged or assigned as security. For security purposes, the Purchaser hereby assigns to the Vendor to their full extent all debts (including all debit balances from the current account) arising from such selling on or for any other legal reason (insurance, unauthorized handling) with regard to the reserved goods. The Vendor grants a revocable right to the Purchaser to collect the debts assigned to the Vendor in is name and to its account. This authority to collect can be revoked only if the Purchaser does not correctly meet its payment obligations. In the event that third parties have access to the reserved goods, the Purchaser must make reference to the Vendor´s reserved property rights, and shall inform the Vendor immediately thereof. In the event of conduct by the Purchaser in breach of the contract – in particular delay in payment – the Vendor is entitled to take back the reserved goods or, where appropriate, to demand assignment of restitution claims by the Purchaser against third parties. The taking back or pledging of the reserved goods by the Vendor – to the extent that the law on payments by instalments (Hire Purchase Act) does not apply – does not imply a cancellation of the contract.
7. Terms of payment
Unless otherwise agreed, the Vendor´s invoices are payable 30 days after the date of invoice, with no deduction. In the event that the payment terms are exceeded, arrears interest shall be applied in the amount of 8 % above the basic bank rate in accordance with Article 1 of the Discount Rate Transition Law, under which the right to make a claim for further damages for arrears of payment is expressly retained. In the event that interest of more than 8 % p. a. above the basic bank rate is claimed in accordance with Article 1 of the Discount Rate Transition Law, the Purchaser has the right to pro-vide evidence of lesser damages, whereby the lower limit is 8 % p. a. above the relevant base interest rate.
Bills of exchange may be used only by agreement with the Vendor, with a maximum validity period of 90 days from the date of delivery. The Purchaser shall bear the discount and exchange costs. Payments by cheque or by bills of exchange shall be deemed as effected only once they have been credited to our account. In the event that the Purchaser, despite reminders, does not meet its payment obligations, or should there exist doubt about its ability to pay, or in the event that unauthorized access is obtained over the goods supplied by the Vendor, the Vendor shall be entitled, subject to any further claims, to withdraw from all current contracts, or to make any further performance of contract dependent upon securities that it considers meet the purpose.
The Vendor provides a warranty corresponding with statutory regulations. The warranty period is twelve months and begins on the date of delivery. In the event that the Vendor´s user instructions are not complied with – for example, if the products supplied are incorrectly stored, improperly used, or mixed with products from other suppliers, changes are made to the products, components replace or consumable materials used that do not meet original specifications – all warranty shall expire in the event that the Purchaser does not refute a properly substantiated assertion by the Vendor that such circumstances have caused the defect. Notice of material defects may be made only within a period of 8 days following receipt of the goods by the Purchaser. The Vendor must be notified in writing of any defects that cannot be discovered within this period, even after careful inspection, immediately upon discovery. The Purchaser must allow the Vendor to ensure compliance with the original requirements (supplementary performance). The Vendor´s warranty obligation is restricted, at its choice, to remedy the defect, make a reduction or allow withdrawal from the contract. Goods about which a complaint has been made may be returned to the Vendor only with its express written permission. All information and suitability, processing and application data relating to the Vendor´s products, as well as technical advice and other information, are provided to the best of the Vendor´s knowledge, but do not release the Purchaser from the duty to carry out its own inspections and tests.
The Purchaser must – as far as it is reasonable – immediately inspect the goods supplied upon receipt, including by carrying out a sampling process, for any defects with regard to quality and purpose, otherwise the goods shall be deemed as having been accepted. If the Purchaser provides evidence of damage caused by a defect in the supplied goods, the Vendor´s liability shall in principle be restricted to the corresponding purchase price of the goods consumed. If the damage caused is of a lower value than the purchase price of the goods consumed, the lower amount shall be definitive. No liability is accepted for so-called indirect damages, such as production downtime. Notifications of defects shall not release the Purchaser from its obligation to pay. They grant no right to retention of payment.
9. Protective reservations
The supplied goods are for use exclusively at the Purchaser´s own business operation. The Vendor´s trademarks may not be used for the products produced within the Purchaser´s business operation, even where goods supplied by the Vendor are being processed. In principle, the use of the Vendor`s trademarks on labels, the Purchaser`s advertising material etc., is allowed only where all the relevant written agreements have been obtained, in each individual case. Only the Purchaser shall process and make further use of the procured goods. In principle, any advice, data sheets and recommendations made by the Vendor within the scope of technical application advice are non-binding, unless otherwise expressly stated in writing in each individual case. With respect to any industrial property rights held by third parties, the Purchaser must always carry out its own inspection of the products for the intended process and purpose.
10. Liability limitations
The Vendor is liable for compensatory damages for whatever legal reasons in accordance with the following provisions:
The liability of the Vendor for damages caused willfully or through gross negligence by the Vendor or one of its vicarious agents or legal representatives shall be unlimited in terms of the amount. In the case of damages resulting from the loss of life, physical injury or damage to health, the liability shall be unlimited, even in the case of a simply negligent breach of duty. In the event of material breach of contractual obligations, the liability of the Vendor shall be limited to the anticipated loss typical to agreements of this kind, provided that none of the above cases are involved. All other liability for damages shall be excluded, in particular strict (no fault) liability. If damage is attributable both to a fault on the part of the Vendor and to a fault on the part of the Purchaser, the contributory negligence of the Purchaser must be factored in. Any liability under the Product Liability Act is unaffected.
11. Place of performance, jurisdiction, partial invalidity
The place of performance is Osnabrück. The law of the Federal Republic of Germany applies to these terms and conditions of business and to the entire legal relationship between the Vendor and the Purchaser. The United Nations Sales Convention for the International Sale of Goods is hereby expressly stated as not applicable. To the extent that the Purchaser is a registered trader within the meaning of the Commercial Code, a public legal entity or publicly-owned special asset, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is, from both parties, Osnabrück. In the event that a provision in these terms and conditions of business, or one of the provisions an any other agreements should become ineffective in law, either in full or in part, the validity in law of all the other provisions or agreements shall not be affected thereby.
Leverkusen, October 2010 Blankophor GmbH & Co. KG