Terms of Delivery and Payment (TDP)
for Legal Commerce (Status 2002)
As a manufacturer of chemical products we endeavour to guarantee a continuously excellent quality of our products at the highest level, to be achieved through quality assurance measures. Even under observance of the most stringent checks, chemical products by nature may have unavoidable positive as well as negative effects on the environment such as temporary impairment by bad odour, also depending on the individual sensitivity of the persons involved.
1.1 We conclude contracts only according to our currently valid TDP. Our TDP do not apply with regard to consumers. Our TDP shall apply after having been sent to the customer for the first time for all following business transactions in the course of current business relations. New issues shall apply from the date of our written information about the modification.
1.2 Contrary, deviating or unilateral customer's general terms and conditions are not binding for us, even if we did not contradict explicitly or despite these conditions render or receive services without reservations, unless we explicitly agreed with individual terms in writing.
2. Conclusion of contract
2.1 If the customer submits an offer to us the contract becomes effective not before receipt of our order confirmation or, if no order confirmation is sent, at the latest on receipt of our invoice or supply to the customer's, should this not have been made before. A written order confirmation will be made out upon written request. Decisive for the scope of the contract contents is our order confirmation or our invoice.
2.2 The customer's quotation is binding for him for the duration of 4 weeks after receipt at our office.
2.3 If the order placement by the customer is based on our quotation, the contract becomes effective by our order confirmation. If the customer's order placement deviates from our quotation, the contract only becomes effective by our confirmation of the order placement. If our quotation was presented "without engagement", we are free to revoke the quotation until receipt of the order placement. Upon our request, order placement by the customer shall be made in writing.
3. Prices, payment
3.1 Our prices cover delivery ex works or warehouse and do not include packing, freight, postage, escalation and transport insurance, if nothing else has been agreed. Turnover tax shall be added. If export delivery has been agreed, the customer shall bear the customs duties. Discount, rebate or deductions shall only be granted by separate written agreement.
3.2 If it comes to cost increases for which we are not responsible between conclusion of the contract and delivery, especially with regard to costs for wages, start material or freight, amounting to more than 3 % of the price agreed, we can reasonably adjust the agreed price according to the effect of the applicable cost factors without extra profit as far as the customer sells the goods in commercial business.
3.3 Our claims become due with arrival of our information at the customer's on readiness of the goods for collection or in case of agreed delivery upon delivery at the customer's, if no later date of payment has been agreed in writing.
3.4 Payment shall be made in EURO without deductions, bank charges and costs to our account with a bank to be indicated by us. Payment and discount periods stipulated by us start with the date of the invoice. Agreed deductions for discounts are only applicable if our customer is not in delay as regards other claims out of our business relations. Decisive for payment in due time is the arrival of the transfer instruction form at the customer's bank and sufficient cover of the customer's account.
3.5 We reserve the right to use payment received for redemption of the oldest invoiced items due incl. the incurred interests and costs in the following order: costs, interests, principal claim.
3.6 If the customer does not initiate payment at the latest two days after receipt of our information that the goods are ready for collection or in case of especially agreed delivery two days after delivery, he falls into arrears unless he received our invoice before or an agreed due date for payment has expired. In these latter cases, the customer already falls into arrears if he does not initiate payment at the latest one day after receipt of the invoice or on the delivery date. In case of delayed payment we charge in commercial business from the due date (item 3.3) at first interest after due date amounting to 5 % p.a. and from the occurrence of delay onwards interest on arrears amounting to 8 % p.a. above the applicable base interest rate.
3.7 The granted periods of payment become invalid as soon as an essential deterioration of the customer's financial situation becomes obvious for us or our customer gives incorrect or incomplete information on his credit standing. In such cases, debts outstanding become due immediately insofar as the customer has no right to refusal of performance. Above that, we can assert our debt-securing rights and make outstanding supplies conditional on the rendering of sufficient security or cash in advance. If the customer refuses this we can cancel the contract as far as our performance has not yet been rendered without giving the customer the possibility to derive any rights from this.
3.8 Bills of exchange and checks are only accepted upon special agreement and on account of performance. Bills of exchange shall be discountable. Charges for bills and discount shall be borne by the customer; they shall be calculated from the due date of the invoiced amount and are due and payable immediately. The term of the bills of exchange shall not exceed 90 days after the date of the invoice.
3.9 The customer shall only offset against our claims if his counterclaim is created of his own right and was approved to be legally effective or acknowledged by us in writing. The customer is only entitled to retain payments due if we essentially violated a duty originating out of the same contract relation of which the customer derives his right of retention and did not offer a suitable security, despite the customer's written request. The same applies for the urging of defenses.
4. Delivery / Risk of price and performance
4.1 Delivery and despatch are made ex works and - also for prepaid deliveries - at the customer's risk. After the transfer of risk, we are neither liable for loss nor for sinking or damage. Additional costs caused by the customer's special requests for despatch are borne by him.
4.2 Partial deliveries are admissible to a reasonable extent. We are obliged to supply goods of average kind and quality taking into consideration the customary tolerances with regard to kind, quantity, quality and packing. In case of items made to order excess or short deliveries up to 10% cannot be rejected.
4.3 Rented containers are our property that cannot be sold. They shall be returned at the latest 60 days after delivery without residues and in perfect condition carriage paid. If this is not the case, we can charge them at the current price for brand-new containers of the same design or claim rental fees. Rented packing material shall not be used for other purposes than for transport of the goods supplied, e.g. for accommodation of different products. It is not allowed to remove markings. One-way packages are not taken back; we will inform the customer of a third party for recycling of the packages according to the packaging ordinance.
5. Delivery periods
Fixed delivery dates are subject to our written confirmation. Deferred deliveries caused by labour disputes, and unforeseeable extraordinary events such as governmental measures, traffic hold-ups etc. relieve us completely from our supply commitment as long as they are effective or in case of impossibility as far as we are not responsible for this event. The extension of the original period to be allotted to us shall be at least 4 weeks.
6. Goods returned
Goods returned will only be accepted upon written announcement and after our previous confirmation of acceptance. Returns shall be made at the customer's charge and risk unless the goods returned are defective.
7. Non-binding application-related notes / Third party industrial property rights
7.1 Product descriptions and operating instructions as well as application-related advice in spoken and written form or in the form of tests are only general non-binding advice. With regard to the great variety of application purposes of the products and to the special circumstances, the customer shall check all the goods delivered for their suitability for the intended processes and purposes. This applies also if the goods concerned are generally recommended for a specific purpose. Application, use and processing of the products are made beyond our possibilities for checking and are therefore within the customer's sole responsibility.
7.2 We do not furnish any guarantee for the surface produced by means of the supplied goods, since we do not have any influence on the proper processing. If thinners, hardeners or varnishes are added that are not recommended by us, the products no longer correspond to our product description.
7.3 It is the customer's sole responsibility to observe possible third party industrial property rights such as application patents and statutory provisions when processing the products supplied.
8. Goods not conforming to the contract
8.1 We are not liable if products made by other manufacturers are mixed up with our products. The same applies if the overall structure of a surface is not built up exclusively with our products. We are also not liable in case of improper storage as well as for advertising information from third parties.
8.2 If the goods supplied show a defect, the customer will only be entitled to claim touch up of the goods. Additional supply shall be excluded because this would incur regular unreasonable expense and the exclusion of additional supply does not mean an essential disadvantage for the customer. Alternatively, we can also select additional supply of a perfect good.
8.3 If the re-supply of a perfect good fails or is not arranged within a suitable period of time that had been fixed for us, the customer can withdraw from the contract or reduce the price. Compensation in damages can only be claimed under the conditions of item 9.
8.4 If after making a complaint and expiration of the period granted to us for correction, the customer does not inform us which rights as per items 8.2 and 8.3 he is claiming we will be in the position to set in writing a period of 3 weeks for making a declaration. After fruitless expiration of this period, the authority to decide is transferred to us.
8.5 The time limits for investigation and lodging a complaint as per § 377 HGB (German Commercial Code) shall apply on the condition that the customer shall lodge his complaint with regard to obvious defects within one week after supply of the goods, the dispatch of the written complaint in due time being sufficient for observance of the deadline.
9.1 If the goods bought are culpably not accepted we can claim a non-acceptance reimbursement amounting to 20 % of the contract price; we would reserve the right to assert claims for further damages. The customer is allowed to furnish proof of a lower damage value.
9.2 The customer's claims for damage despite any legal reason as well as claims for reimbursement of futile expenses are excluded unless the reason of damage is based on a breach of duty of gross negligence or intent or on an at least negligent violation of essential contractual duties; in the latter case, liability is limited to the amount of the typically foreseeable damage.
9.3 The above limitation of liability does not apply for personal injury, i. e. for damage caused by injury to life, body or health, in case of liability according to the product liability law or as far as we have taken over a guarantee as an exception.
10. Statutory limitation
10.1 Contractual claims for damages and claims for the reimbursement of customer's futile expenses are struck by the statute of limitations after two years.
10.2 Deviating from item 10.1, contractual claims for damage and the customer's claims for the reimbursement of futile expenses that are based on a defect of the goods as well as the right for touch up as per item 8.2, 1st paragraph, are struck by the statute of limitations after one year. Rights of recourse as per § 478 f. BGB (German Civil Law) remain untouched.
10.3 The items 10.1 and 10.2 1st paragraph shall not apply in case of an intentional or gross negligent breach of duty or a violation of essential contractual duties as well as in the cases mentioned in item 9.3. Here, the statutory periods of limitation shall apply.
10.4 Our claims for payment and interests are limited to five years.
11. Reservation of ownership
11.1 We reserve the ownership of the supplied goods until fulfilment of all claims out of the business relation with the customer incl. subsidiary claims, claims for damage and encashment of checks and bills. This reservation of ownership remains active even if individual claims are integrated into a current account and the balance has been drawn and confirmed.
11.2 The customer is obliged to hold our goods under reservation of ownership in safe custody for us, to maintain and repair them at his own costs and to insure them within a frame that is usual for a prudent businessman against loss and damage. The customer herewith transfers in advance his claims arising out of the insurance contracts to us. We accept this assignment.
11.3 The customer is entitled to dispose of the goods under reservation in ordinary business as long as he fulfils his obligations out of his business relation with us in due time. This shall not apply if and insofar as between the customer and his purchasers a non-assignment clause has been agreed with regard to the purchase money claim. The customer is not entitled to pledging, trust receipt or other kind of encumbrance. He is obliged to secure our rights in case of resale of the goods under reservation to the amount of our purchase price claim. This can be arranged by making the transfer of ownership in case of resale conditional on the complete payment of the goods by his purchaser.
11.4 If our goods under reservation are sold by the customer, he already now transfers to us all claims arising out of this resale incl. damage claims of third parties amounting to the contract value of the goods under reservation with all securing and subsidiary rights, incl. bills and checks. We accept this assignment. If the goods under reservation are sold together with other goods at a total price, this assignment is limited to the customer's prorata invoice amount for our sold goods under reservation. If goods are sold of which we have become co-owners as per item 12.6, the assignment will be limited to that portion of the claim that corresponds to our co-ownership portion.
11.5 In case of delay or other essential violation of duties as well as essential deterioration of the customer's financial position, he undertakes subject to § 107 clause 2 InsO to surrender the goods under reservation. This obligation is independent of a withdrawal or an extension of time. Already at this point of time the customer allows us to enter his offices for collection of goods. We are entitled to resell the recollected goods in ordinary business and to offset our costs with the revenue. The goods under reservation are taken back only for securing and only means a withdrawal from the contract with an explicit written explanation. Should we withdraw from the contract we may claim a compensation for the time of transfer of the goods according to § 503 clause 2 BGB (German Civil Law). Furthermore, we may in case of delay or of an essential deterioration of the customer's financial position notify the customer's purchasers in his name to transfer the claims from resale to us and collect the claims.
11.6 The customer only processes the goods under reservation for us without acquiring any claims against us out of this. The new good becomes our property. In case of processing, mixing up or connecting the goods under reservation with goods that are owned by third parties we shall acquire co-ownership to the new good in relation of the invoice value of our goods under reservation to the invoice value of the other goods. In case of a connection or confusion with a principal good of the customer, he already now transfers his right of ownership to the new subject to us.
11.7 The customer shall inform us immediately on compulsory execution measures of third parties on the goods under reservation or in the claims transferred to us or in other securities, indicating the documents that are required for intervention; this also applies for other kinds of interference.
11.8 We undertake to release the securities to which we are entitled according to the above stipulations upon the customer's request to such an extent by which the invoice value of the goods the property of which has been transferred by way of security exceeds our claims to be secured by more than 20 % . The selection of the goods under reservation to be released lies with us.
11.9 The agreements regarding the reservation of ownership remain valid until the customer has settled all our claims. If the customer integrates the claim into an open account relation with his purchaser he transfers the balance claims as they result in his favour out of this open account to us already now. The customer is authorised to collect this claim even after assignment. Our right to collect the claim ourselves remains untouched whereas we are not allowed to collect the claim as long as the customer duly meets his obligation to pay. The customer undertakes to convey all information and documents that are necessary for assertion of claims assigned.
11.10 As far as the reservation of ownership should not be valid according to the foreign law of the country where the supplied goods are, the customer shall upon our request make available an equivalent security. If he does not meet this request, we can claim immediate payment of all unpaid invoices.
12. Place of fulfilment, jurisdiction, applicable law
12.1 The place of fulfilment is our domicile at Hamm. The place of jurisdiction for all disputes arising from commercial business with fully qualified merchants and legal entities of public law is for both parties the seat of our headquarters at 59075 Hamm (§ 38 ZPO = Code of Civil Procedure). This also applies for legal action with regard to bills and checks. We can also bring forward claims to our customer at his general place of jurisdiction.
12.2 German law shall be applicable. The United Nations Agreement as of 11 April 1980 on contracts covering the international purchase of goods (CISG "Wiener Kaufrecht") is excluded.
13. Separability clause
If one or more of these provisions or if the delivery transaction become void partially or in whole, this does not impair the validity of the remaining provisions or remaining parts of such clauses.