§ 1 General
a) Our General Terms of Payment and Delivery (GP&D in the following) apply to all purchase agreements which we, as the seller, conclude with companies, corporate bodies under public law and special funds under public law. They do not apply in relation to consumers.
b) Deviations from these terms and conditions require our express written approval. This applies in particular to the validity of general terms and conditions of business of the purchaser, which we expressly contradict.
§ 2 Quotation, order, deliveries, delivery periods, partial deliveries
a) Our quotations/offers are subject to confirmation. Orders are only binding for us if we confirm them in writing or fulfil them by sending the goods. We can accept orders from the purchaser within a period of up to two weeks. Verbal side agreements are only binding for us if we confirm them in writing.
b) Unless agreed otherwise, our deliveries are ex-works or warehouse, which is also the respective place of performance The type of shipping is chosen by us, unless a specific type of shipping is agreed. We are entitled to bill for such services in accordance with our price arrangement in § 5.
c) Unless delivery periods and dates are not bindingly agreed otherwise, the usual but non-binding delivery period is three weeks. Any shorter delivery periods given are always non-binding unless a fixed date is explicitly agreed.
d) Delivery periods begin with the date of the final and complete order confirmation. They are met if the goods are kept ready for shipping ex warehouse by us on schedule or are provided for shipment on schedule for shipping as requested by the purchaser.
e) The guaranteed fixed date delivery possibly booked by you as a service in the order is a service of the transporter (forwarder or parcel service) for which we are not liable should it not be met. However, we are prepared to reimburse the additional costs for this service if the date is not met. No further claims exist.
f) We are entitled to make partial deliveries or provide partial services, provided these are reasonable for the purchaser and sufficient regard is given to their legitimate interests.
g) In the case of electronic orders, a confirmation of receipt is not an acceptance of the order.
h) “Return of goods” is generally ruled out. Nevertheless, if we are prepared, by way of exception, to cancel ordered or take back delivered goods; this is subject to the goods being undamaged and in their original packaging. If a different state is determined on return, this condition is not met and the goods will not be accepted by us. Transport costs will be invoiced if we organised the return transport. In case of cancellation before delivery we charge 25 % of the purchase price, 35 % in case of return, to cover the additional costs and as partial compensation for the lost profit.
§ 3 Transfer of risk
a) The risk of accidental destruction or loss and accidental deterioration of the goods, including of partial deliveries, is transferred to the purchaser at the latest with their handover to the purchaser, the transporter, the forwarder, the freight carrier or the other persons or establishment determined to carry out the shipping.
b) If the delivery or service is delayed as a result of circumstances for which the purchaser is responsible, the risk is transferred to the purchaser with the notification of readiness for dispatch.
§ 4 Retention of title
a) We retain title to the sold goods until we have received complete payment of all our current and future receivables arising out of the purchase agreement and a current business relationship (secured receivables).
b) The goods subject to retention of title may neither be pledged to third parties nor transferred as security. The purchaser shall notify us immediately if and insofar as third parties seize the material belonging to us.
c) In the event of behaviour of the purchaser in breach of the contract, in particular, in the event of non-payment of the due purchase price, we are entitled to withdraw from the contract according to the legal regulations, and to demand return of the goods due to the retention of title and the withdrawal. If the purchaser does not pay the due purchase price, we may only exercise these rights if we have unsuccessfully set the purchaser a reasonable period for payment beforehand or if setting such a deadline is unnecessary according to the legal regulations.
d) The purchaser is entitled to sell on and/or to process the goods subject to retained title in their proper course of business. In this case, the following provisions additionally apply:
aa) The retention of title extends to the products created by the processing, mixing or combination of our goods at their full value, whereby we are deemed the manufacturer. If after processing, mixing or combination with the goods of third parties, their right of ownership continues to exist, we acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. Otherwise the same applies to the resulting product as applies to the goods delivered with retention of title.
bb) The purchaser herewith assigns to us the receivables due from third parties arising out of the selling on of the goods or products, either in total or equal to any co-ownership share pursuant to the above paragraph aa) as security. We accept the assignment. The obligations of the purchaser named in paragraph b) also apply in view of the assigned receivables.
cc) The purchaser remains authorised to collect the receivable in addition to us. We undertake not to collect the receivables as long as the purchaser meets their payment obligations to us, does not become in arrears of payments, does not submit any application for the opening of insolvency proceedings and no other limitation of the ability to pay exists. However, if this is the case, we can demand that the purchaser informs us of the assigned receivables and their debtors, provides all necessary information to enable us to collect the receivables and hands over the corresponding documents and notifies the debtor (third parties) of the assignment.
dd) If the value of the securities exceeds our receivables by more than 20 %, at the request of the purchaser we will release securities to this extent at our own choice.
§ 5 Prices and terms of payment
a) Unless agreed otherwise, our prices are given in euros ex-works or warehouse including packaging and loading, however, not including the statutory VAT. The packaging becomes the property of the purchaser. We bill the respective statutory VAT and transport costs from the factory (ex-works) or warehouse as well as the costs of any separately requested transport insurance requested by the purchaser extra to the purchase price. The purchaser also bears any customs charges, fees, taxes and other public charges are also borne by the purchaser. The purchaser must also bear the costs incurred for assembly or installation. If we promise carriage paid delivery, by way of exception, this applies to a goods value of at least €585.00 net (without VAT).
b) The prices applicable on the day of delivery always apply to the calculation. In particular, the prices result from the price lists provided to the customers by us. New price lists are issued yearly and are made available to all customers.
c) Unless a different time for payment has been agreed elsewhere, our invoices are payable within 30 days of receipt without any deduction. After the due date stated on the invoice has expired, the purchases is in arrears pursuant to § 286 Para. 2 No. 2 BGB. If payments are made within eight days of the invoice date, we grant 2 % discount on the amount eligible for discount shown in the invoice, 3% discount for immediate bank direct debit by means of SEPA business to business direct debit.
d) Within the scope of payment settlement by direct debits, if applicable, we send a prenotification in the form of an invoice generally two days before execution, however one working day beforehand at the latest.
e) If the purchaser does not pay in time, we are entitled to charge default interest at the rate that our bank charges for overdraft facilities, however at least 9 percentage points above the respective base interest rate current at the time.
f) We only accept bills, cheques and other forms of remittances on account of payment. Their charges and costs and the risk of submission in good time and protesting are solely at the cost of the purchaser.
g) Only undisputed receivables or receivables determined without further legal recourse justify the purchaser to offset or retention.
h) If, due to objective circumstances after the contract has been signed, it becomes evident that our payment claim is endangered by the purchaser’s poor performance, we can refuse the performance and set the purchaser a reasonable grace period in which they must gradually pay on delivery or must provide collateral. If the purchaser refuses or the or grace period expires fruitlessly, we are entitled to withdraw from the contract and/or demand compensation. In this case we are also entitled to make any outstanding deliveries dependent on advance payment.
§ 6 Guarantee
a) Unless determined otherwise in the following, the purchaser’s rights in the event of material defects or defects of title (including incorrect or short delivery or poor installation instructions) are as specified in the legal regulations.
b) Out defects liability is primarily based on the agreement reached regarding the condition of the goods. The agreement regarding the condition under the General Terms of Payment and Delivery is as given in our product descriptions designated as such, which were issued to the purchaser on request before they placed an order or were included in the contract in the same way as these TP&D.
c) An agreement on the condition of the goods is not a promise of guarantee. We only provide particular guarantees on the basis of a separate agreement, which sets out the content and scope of the guarantee independently of these terms and conditions of business and the statutory rights of the purchaser.
d) If the condition was not agreed, the goods are free from material defects if they are suitable for the use presupposed contract. Otherwise, in addition to the statutory provision, the goods are also free from material defects if they have the properties which the purchaser can expect according to the product descriptions given by use; it is sufficient if the product description was given to the purchaser after the conclusion of the contract (in particular together with the goods). However, we do not accept any liability for the public statements of other manufacturers or other third parties (e.g. advertising messages).
e) The purchaser’s defects claims presuppose that they have met their statutory duties to inspect and object (§§ 377, 381 HGB – German Commercial Code). If a defect is found during the examination or later, we shall be notified without delay. Notification is without delay if it received by us within nine days. Notwithstanding the above duty to inspect and object, the purchaser shall notify us in writing of obvious defects (including incorrect and short delivery) within nine days of delivery. Sending the notification concerned in good time suffices to meet the respective deadline. However, each notification shall reach us and shall be made in writing. If the purchaser fails to send us the defect notification specified above, our liability for non-notified defects is excluded.
f) If the delivered item is defective, we can first choose whether to provide a cure by removing the defect (subsequent improvement) or by delivering a defect-free item (substitute delivery). Our right to refuse the chosen type of cure under the statutory requirements remains unaffected. We bear the expenses necessary for the purpose of the subsequent improvement, in particular transport, travel expenses, labour and material costs. In case of substitute delivery, the purchaser shall return the defective item to us according to the legal regulations.
g) If the cure has failed or a reasonable period for the cure to be set by the purchase expires without success or is superfluous according to the legal regulations, the purchaser can withdraw from the purchase agreement (withdrawal) or reduce the purchase price (price reduction). However, a right of withdrawal does not exist for insignificant defect. With their declaration of withdrawal or price reduction the purchaser loses their claim to delivery of a defects-free item.
h) Purchaser’s claims for compensation or reimbursement of fruitless expenditures exist according to § 8, otherwise they are excluded.
i) Adhesives and other products, in which the storage period can influence the condition of a product, shall be used within a period from production given on the product. Our warranty cannot be accepted beyond this given point in time.
j) If we perform a so-called drainage calculation on request, this drainage calculation is non-binding and free of charge. Under no circumstances can it replace a design for the specific site and is only a rough design based on empirical values on which we base the calculations, as any information provided to us by the customer. The calculations are not a suitable basis for the specific design of the project but are merely an indication. You may use the results of our work at your own risk, provided you purchase materials for this project from us. Due to lack of complete design of the projects, we are unable to accept any liability for the work results. This must remain the responsibility of the local designers and architects. In particular, we do not owe any warranty within the scope of the erection of the project that is outside our warranty for our own delivery. We are neither responsible for the specification nor for the execution of the works. The recipient of our calculations releases us from ´third party claims for liability for incorrect design.
§ 7 Recourse of the supplier
a) If new manufactured goods delivered by us to the purchaser have been sold on, in addition to the above § 6, the following provisions and otherwise the legal regulations apply to the defect claims of the purchaser.
b) Apart from the cases set out in the law, the legal assumption that, in case of the sale of consumer goods, the defect already existed on transfer of risk to the purchaser (§ 478 Para. 1, § 477 BGB), also does not apply if a period of more than six months lies between the transfer of risk to the goods to our purchaser and the transfer of risk to the customer of the purchaser.
c) The purchaser’s rights to cure pursuant to § 6f) apply with the following stipulation: The purchaser can demand the type of cure from us which they owe their customer in the individual case, we then do not have a right of choice. If the purchaser has not exercised a contractual or statutory right to refuse cure for their purchaser due to disproportionate costs, our obligation to reimburse the purchaser’s expenditure is limited to the non-disproportionate costs as defined in § 479 Para. 4 BGB. The purchaser is entitled to assign this claim to cure to their customer, however, only for the purpose of performance and/or collateral, i.e. regardless of their own continued liability to the customer. An assignment in lieu of performance is invalid. Our right to refuse this cure under the statutory requirements remains unaffected.
d) If we have agreed an equivalent settlement in the meaning of § 478 Para. 2 BGB with the purchaser, the claim to reimbursement of the expenditure that they must bear in relation to their customer (§ 445a BGB) is ruled out. An equivalent settlement is a promise of guarantee for the benefit of the ultimate buyer of our goods, given by us before the sale, which at least includes free of charge transfer of defect-free replacement for the defective goods.
§ 8 Other liability
a) Unless specified otherwise in these TP&D including the following provisions, we are liable for a breach of contractual and non-contractual obligations under the respective relevant legal regulations.
b) We are only liable for compensation – whatever the legal reason – in the event of intent and gross negligence. In addition, we are also liable for ordinary negligence,
– for damages due to fatal or physical injury or damage to health,
– for damages due to the breach of a material contractual obligation;
however, in this case our liability is limited to the compensation for the foreseeable, typically occurring damage.
c) The above limitations of liability do not apply if we have fraudulently concealed a defect or have provided a guarantee for the condition of the goods. The same applies to claims of the purchaser under the Product Liability Act.
d) The purchaser can only withdraw or terminate due to a breach of contract, which does not consist of a defect if we are responsible for the breach of contract. A free right to terminate of the purchaser, particularly under contract for work and services law, is ruled out. Withdrawal or termination shall be declared in writing. Otherwise the legal prerequisites and consequences apply.
§ 9 Statute of limitation
a) The reciprocal claims of the parties to the contract expire by limitation according to the legal regulations, unless stipulated otherwise in the following.
b) By way of derogation from § 438 Para. 1 No. 3 BGB, the general period of limitation for claims due to material defects or defects of title is one year from delivery. Insofar as an acceptance inspection is agreed, the period of limitation begins with the acceptance. Otherwise it begins on leaving the works or warehouse. However, claims do not expire by limitation as long as the third party can still exercise their right – in the absence of statute of limitation – against the purchaser and we are accordingly still liable in terms of recourse of the supplier.
c) In all cases, the legal provisions for the case of fraud remain unaffected.
d) Insofar as we are liable to pay the purchaser compensation pursuant to § 8, the statutory periods of limitation of sale of goods law apply. This also applies to competing noncontractual claims for compensation, provided the statutory period of limitation does not provide for shorter periods. The period of limitation provisions of the Product Liability Act remain unaffected.
§ 10 Packaging and sustainability
We point out that all used, completely emptied packaging as defined in § 15 para. 1 VerpackG (German Packaging Act) of the sane type, shape and size such as the packaging used by us can be returned free of charge in the place of handover or in its immediate vicinity. if necessary, you can register the transport packaging received from us with the disposal service provider engaged by us using the following contact details: Reclay Systems GmbH (Phone hotline: +49 221 580098 111 I E-Mail: ). We are registered in the LUCID packaging register under the registration number DE1534846716353.
§ 11 Confidentiality, choice of law and jurisdiction
a) If the purchaser provides us with information within the scope of business relationships, this is not deemed to be confidential unless explicitly otherwise agreed with us in writing.
b) The laws of the Federal Republic of Germany, excluding all international or supranational contract law regulations, in particular excluding the UN Convention on Contracts for the International Sale of Goods (CISG), apply to all disputes arising out of or relating to the interpretation or performance of this contract including the interpretation and performance of these TP&D and all legal relationships between us and the purchaser.
c) The sole place of jurisdiction for disputes resulting directly or indirectly out of the contractual relationship and relating to these TP&D as well as disputes regarding all legal relationships between us and the purchaser is Recklinghausen.
§ 12 Copyright
Our copyright to drawings and other designs remains unaffected. Our intellectual property rights also remain unaffected. Copies are prohibited.