General Terms and Conditions
Sale, delivery and payment terms
I. General - Scope
Our deliveries and services are provided exclusively on the basis of the General
Terms and Conditions of Sale below. They only apply to merchants and entrepreneurs pursuant to § 14 of the German Civil Code (BGB). In particular,
they also apply when we unconditionally provide deliveries and services to the customer in the knowledge that the customer's terms and conditions contradict or deviate from our general terms and conditions of sale. The scope of these terms and conditions of sale applies to all destination states or countries where German law is applicable. Their applicability is hereby agreed upon.
II. Offers and conclusion of a contract, service content
1. Our offers are subject to change. The order is considered a binding offer. Acceptance normally takes place within four weeks through delivery of an order confirmation or by unconditionally providing the ordered goods.
2. The technical data and descriptions in the respective product information or advertising materials are not guarantees of the quality or durability of the goods to be delivered by us. However, these should be kept in mind when processing.
3. In the case of sales based on samples or specimens, these only describe conformity within professional standards and do not represent a guarantee for the goods to be delivered by us.
4. All supplemental agreements to the sale contract, especially verbal agreements, information,
recommendations, advice and other agreements with our employees, only bind us after confirmation in writing or in a form; they do not establish grounds for a consultancy contract, unless
expressly agreed upon in writing.
III. Prices, payment terms, payment delay
1. The applicable prices are those agreed upon at the conclusion of the specific contract, in particular those stated in the order confirmation, or those in accordance with our current price list. Added to these prices are VAT at the actual statutory rate applicable on the day of delivery, the costs of proper shipment, costs of transport from our plant or warehouse, cartage costs and, where agreed, the cost of transport insurance. Country-specific fees may be added in the case of foreign delivery.
2. We reserve the right to make reasonable price adjustments. The right to make price increases due to
raw material price increases remains reserved at all times.
3. Our invoices are payable within 14 days with 2% discount, within 30 days net.
After expiration of the due date stated on the invoice, the customer shall, without further
reminder, be in default.
4. The customer is only entitled to offset or retention rights if his counter-claims are declared legally valid or acknowledged in writing. Furthermore, the right of retention only exists if the counter-claim is based on the same contractual relationship as our claim.
5. If the customer does not pay due invoices, fails to meet a payment deadline or
the customer's financial situation worsens, we are entitled to declare the customer's entire residual debt
due and, under amendment of the agreements, demand advance payment
or security or, following delivery, immediate payment of all claims
based on the same legal relationship.
IV. Time of delivery and performance; delay in performance
1. Agreed delivery times are only approximate, unless a fixed date transaction has been
expressly agreed in writing. If delivery times are not met due to circumstances
for which we are responsible, the customer may withdraw from the contract in writing
after fruitless expiration of a reasonable grace period set by the customer.
2. We shall only be in default after expiration of a reasonable grace period set by the customer. In
the event of force majeure and other unforeseeable circumstances for which we are not responsible,
such as disruptions, breakdown of production facilities, missed delivery deadlines or
non-deliveries by our suppliers, business interruptions due to raw material,
energy or labour shortages, strike, lockout, difficulties in procuring transport, traffic disruptions or government intervention, we are entitled to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up period. If the delivery or service is thereby delayed for more than one month, we and the customer are, under exclusion of all claims for damages and under the conditions pursuant to Item VIII of these sale terms and conditions related to the quantity affected by the delivery interruption, entitled to withdraw from the contract in writing.
3. In every case of default, our liability for damages is limited in accordance with the regulations in Item VIII.
4. We are entitled to reasonable partial deliveries and partial services within the agreed upon delivery times.
5. We reserve the right to plead non-performance of the contract.
V. Transfer of risk, transport and packaging costs
1. Unless expressly agreed upon otherwise in writing, delivery takes place ex works or warehouse and must be picked up there by the customer at his own risk and expense. In this case, the risk of accidental destruction and of accidental deterioration passes to the customer after being made available for collection upon receipt of notification that the goods are ready by the customer. Otherwise, the risk of accidental destruction and of accidental
deterioration of the goods supplied shall pass to the customer at the time of transfer to the carrier.
2. Returnable containers and returnable packaging must be returned, empty of any residue and freight paid, by the customer
within 60 days: loss and damage to the returnable containers and returnable packaging shall be charged to the customer. Returnable packaging (containers) may not be used for other purposes or for
the holding of other products. They are exclusively intended for the transport of our
delivered goods. Labels must not be removed. We do not take back
one-way packaging. Instead, we inform the customer of a third-party that
accepts the packaging in accordance with the packaging regulations.
VI. Customer's obligations / securing title retention
1. The delivered goods remain our property until complete payment of the purchase price and all outstanding invoices. Inclusion of the purchase price claim against the customer in a current invoice and recognition of a balance does not affect the retention of title.
2. The customer is obligated to handle the purchased goods with care; in particular, to ensure the goods at replacement value against loss, damage and destruction at his own expense. The customer hereby assigns the claims arising from the insurance contracts to us. We accept this assignment.
3. The customer may neither pledge the goods subject to retention of title or assign them as security. He is, however, entitled to resell and process the delivered goods in the normal course of business. The entitlement does not exist if the customer has assigned or pledged the receivables arising from the resale or reprocessing of the goods in advance to a third party or has agreed on a prohibition of assignment with him.
4. To secure the fulfilment of all of our claims arising from the legal relationship with him, the customer now assigns all, including future and conditional, claims arising from resale or further processing of the goods delivered by us together with all ancillary rights at a level of 110% gross of the value of the delivered goods with priority over the remainder of his claims. We hereby accept this assignment and are entitled to disclose this assignment at any time.
5. As long as and insofar as the customer meets his payment obligations to us,
he is entitled to collect the claims against his customers assigned to us. In these
cases, the customer is obligated to immediately forward the amounts collected from assignments
to us or, if this is impossible, hold them in trust and safeguard them separately. The right to collect expires if the customer fails to fulfil his obligations to us, falls into financial difficulties, ceases payment or if insolvency proceedings are instituted.
6. At our request, the customer shall inform his debtors of the assignment with the request that they pay us up to the amount of our claim against the customer.
We are entitled to also inform the customer's debtors of the assignment at any time
and collect the claims. We shall make no use of this entitlement
as long as the customer meets his payment obligations to us without default. In the event of payment default, the customer shall inform us of assigned claims and their debtors,
provide all information required
for claim collection and
turn over the documents required for claim collection.
7. In the event of seizures or other third-party interventions, the customer must immediately inform us
8. The handling, processing or reworking of goods supplied by us under retention of title
is always carried out for us, without any liabilities accruing to us. If the goods to which we retained the title are processed or mixed or
combined with other materials that are not our property,
we shall acquire co-ownership rights to the new product according to the ratio of the value of the goods delivered by us to the other items. The customer shall retain
the sole ownership or co-ownership generated in this way for us. The customer hereby now assigns to us his claims from the sale of this new product,
in which we have ownership rights, to
the amount of our ownership share in the sold goods as security. If the
customer links or mixes the delivered goods with a main item, he already assigns to us
his claims against the third party to the extent of the value of our goods. We hereby accept
9. At the customer's request, we undertake, at our discretion,
to release the securities to which we are entitled, as far as the realizable value of our securities exceeds
the claims to be secured against the customer by more than 20%.
10. If the customer is in breach of contract, in particular if he has been in arrears with payments by more than 10%
of the invoice amount for a significant period of time, we are entitled, without prejudice to further (damages) claims due to us, to
withdraw from the contract and
demand return of the goods delivered by us.
VII. Customers rights in the event of defects
1. The customer shall notify us in writing of obvious material defects, incorrect deliveries and deviating quantities immediately, but not later than seven days after receipt of the goods by the customer. The goods are otherwise considered approved. We must be informed in writing of hidden defects within a period of eight days following their discovery. The buyer has an obligation, if necessary by carrying out a test processing, to verify whether the delivered goods are free of defects and suitable for the intended use. This also applies when components that were not obtained from us are added. If defects are only determined during processing, the work must be stopped immediately and the unused, unopened original containers must be secured. They must be made available to us upon demand for examination. After three months as of the transfer of risk to the customer pursuant to Item V.1, notifications of concealed defects are excluded and considered late, insofar as they were reasonably detectable. With a late defect notification, the customer loses his defect rights under the provisions of Item VIII, unless the defect was maliciously
concealed by us.
2. In the case of defects in goods delivered by us, we are only obligated to make repairs or deliver defect-free goods (supplementary performance), at our discretion, insofar as we are not culpable of intent or gross negligence. If we are unwilling or unable to provide supplementary performance, particularly if this is delayed beyond reasonable periods for reasons for which we are responsible, or supplementary performance is unsuccessful for other reasons, the customer is entitled, at his discretion, to withdraw from the contract or demand a reduction in the purchase price. Subsequent improvement shall be deemed to have failed after the third attempt.
VIII. Our company's rights and obligations
1. Our company shall only be liable for damages or futile expenses, irrespective of
their legal basis, if the damage or futile expenses:
a) were caused by us or one of our vicarious agents by culpable violation of a material
contractual obligation or,
b) result from grossly negligent or intentional violation of obligation by us
or one of our vicarious agents. Pursuant to Item VIII 1 a) and b) we are only liable for damages or
futile expenses caused by consultation or information not subject to separate remuneration
in the case of intentional or grossly negligent violation of our obligations, insofar as this
violation of obligations does not represent a material defect in the goods delivered by us according to § 434 German Civil Code (BGB).
2. If, pursuant to Item VIII.1 a), we are liable for violation of a material contractual obligation,
without gross negligence or intent, our liability for damages is limited to the
foreseeable, typically occurring damage. in particular, in this case
we are not liable for the customer's lost profit and unforeseeable, indirect consequential damages. The
above-mentioned limitations of liability according to sentences 1 and 2 equally apply to damages
caused by our employees or agents due to gross
negligence or intent. We are not liable for the customer's indirect damages resulting from
enforcement of contractual penalty claims by third parties.
3. If, pursuant to Item VIII. 1 a), we are liable for violation of a material contractual obligation,
without gross negligence or intent, the extent of our liability for damages is limited to the
amount covered by an appropriate insurance policy.
4. The limitations of liability stipulated above in Item VIII, 1 to 3,
do not apply insofar as our liability is mandatory due to the provisions of the Product Liability Act
or if claims are asserted based on injury
to life, limb or health. if the goods delivered by us lack a guaranteed characteristic, we are only liable for damages pertaining
to the absence of features specified in the guarantee.
5. A more extensive liability for damages than that provided for in Item VIII, 1-4 is excluded. This also applies in particular to claims for damages arising from breaches of duty in the conclusion of the contract according to Section 311 (3) German Civil Code (BGB), positive breach of contract according to Section 280 BGB or claims according to Section 823 BGB.
6. insofar as this liability for damages is excluded or limited pursuant to item VIII, 1-5,
this also applies with respect to the personal liability for damages of our staff, employees, associates, representatives, vicarious agents and assistants.
IX. Limitation period for claims
1. Customer's claims due to defects or due to services provided in breach of our obligations,
including claims for damages and claims for compensation for futile expenses,
shall become time-barred within one year after the legal date of commencement of the statute or a period of limitation, insofar
as nothing to the contrary emerges from Item IX, 2 to 5, below.
2. If the customer is a company, and he or another buyer in the supply chain has satisfied consumer claims as a business person based on defects in new goods supplied by us that were sold as newly manufactured goods to a consumer, the term of limitation for claims by the customer against us under sections 437 and
478, (2) German Civil Code (BGB), commences two months, at the earliest, after the time
that the customer or the other purchaser in the supply chain fulfils the consumer's claim as a business person, unless the customer has been able to successfully invoke the plea that the claim is time-barred to his customers/contracted partners. The customer's claims against us because of defective goods delivered by us become time-barred, in any case, as soon as the claims of the customer's customers/contractual partners against the customer because of defects in the goods delivered to the customer are time-barred,
but with building materials, no later than five years after the particular goods were delivered to our customer, with other goods, one year after this point in time.
3. In the case of goods normally produced and delivered by us that have been used
in the construction of a building in accordance with their customary use and have caused the building to be defective, the customer's claims become time-barred five years after the beginning of the statutory limitation period. Contrary to clause 1, a limitation period of two years applies if the customer used the goods delivered by us for the performance of contracts which fully incorporate part B of the contracting rules for awarding building contracts, or if only materials used purely for building repairs are involved. The limitation period according to sentence 2 above commences, at the earliest, two months after the time when the buyer fulfilled the claims of his contractual partner arising from the defectiveness of the building work that was caused by the goods delivered by us, unless the customer has been able to successfully invoke the plea that the claim is time-barred to his customers/contracted partners. The customer's claims against us because of defective goods delivered by us become time-barred, in any case, as soon as the claims of the customer's customers/contractual partners against the customer because of defects in the goods delivered to the customer are time-barred, but at the latest, five years after the particular goods were delivered to our customer.
4. Where we have provided consultancy services and/or information in a way contrary to our duty and have not charged separately
without having delivered goods in connection with the information or advice or
without the inaccurate advice or information constituting a defect of the delivered goods according to § 434 German Civil Code (BGB),
claims based on this become time-barred one year
after the start of the legal limitation period. Customer's claims against us arising from the breach of
contractual, pre-contractual or legal obligations that do not represent material defects in the goods delivered or to be delivered by us
according to Section 434 German Civil Code (BGB) are also subject to
a limitation period of one year from the beginning of the statutory limitation. Insofar as the above-mentioned breaches of duty
constitute a defect of goods delivered by us in conjunction with the consultation or information according to Section 434 BGB,
the corresponding claims shall be subject to the limitation provisions in Items 1 to 3 and 5.
5. The provisions contained in Items 1 to 4 do not apply for the limitation of claims based on violation of life, limb, or health, or for the limitation of claims under the Product Liability Act and resulting from a defect in title of the goods supplied by us. Furthermore, they shall not apply to the limitation of customer's claims based on our fraudulently concealing defects in goods supplied by us or on our violating an obligation intentionally or with gross negligence. For the cases indicated in this Item IX.5, the limitation of these claims is regulated by the statutory limitation periods.
The return of defect-free goods delivered by us is excluded.
XI. Assignment prohibition
Without our express written agreement, rights or claims against us, in particular due to defects in goods delivered by us or breaches of obligation committed by us, may not be transferred, in whole or in
part, to third parties or pledged to third parties; Section 354 a German Commercial Code (HGB) remains unaffected by this.
XII. Place of performance, venue, applicable law, trade terms
1. Place of performance and exclusive place of jurisdiction for all disputes arising between us and merchants
or legal persons under public law or special funds under public law is
the company's head office, unless mandatory legal provisions stipulate otherwise.
2. The legal relationship between ourselves and the customer shall be governed exclusively by the law of the
Federal Republic of Germany. Application of provisions governing international
sale of goods and of German international private law is expressly excluded.
3. If trade terms pursuant to the International Trade Terms (INCOTERMS) have been agreed upon,
the latest edition of the INCOTERMS apply.
XIII. Final provisions
1. Should any of the individual provisions listed above be invalid, partially invalid or excluded by a special agreement, this shall not affect the validity of the remaining provisions.
2. We store our customers data as part of our mutual business relationships
in compliance with the German Federal Data Protection Act.
3. Our delivery address is: EUROTEAM Bauchemie GmbH, An der Mühle 1, 15345 Altlandsberg, Germany