These general conditions apply if the parties have agreed on them in writing or by other means. They also apply in the case of repeat deliveries, even if we do not invoke them expressly during later deliveries. Changes to or deviations from these general terms and conditions, in particular the agreement on deviating terms and conditions, are only binding if we confirm them in writing. Conflicting terms of purchase of the purchaser will not be recognized if, after receipt of our order confirmation, the terms of purchase of our purchaser are not expressly appealed.
Offers are non-binding until the conclusion of the contract. Goods are subject to prior sale. Orders only become binding once we have confirmed them in writing. Any verbal collateral agreements or assurances made by our sales staff or sales representatives which extend beyond the written purchase agreement must always be confirmed in writing.
2. DELIVERIES AND DELIVERY PERIODS
Partial deliveries are permissible. Delivery periods and dates are considered approximate unless we have expressly indicated that a written confirmation is binding. Our delivery is contingent on proper and timely delivery to us by our suppliers. The delivery period will be reasonably extended – even in the case of a primary delay in delivery – upon the occurrence of force majeure and any unforeseen obstacles which arise after conclusion of the contract and for which we are not responsible, provided such obstacles demonstrably have a significant impact on the delivery of the item sold. This also applies if these circumstances arise affecting our suppliers and their suppliers. We will inform the purchaser as soon as possible of the beginning and end of such obstacles. Delivery periods will be extended by the time in which the purchaser is in default with regard to his/her contractual obligations – also from other contracts, within an ongoing business relationship.
3. DELAY AND IMPOSSIBILITY
We are not responsible for delays in and failure to deliver (impossibility) if we, our agents and our suppliers are not at fault. This also applies to a partial delay. In these cases, we are entitled to postpone delivery/remaining delivery by the duration of the hindrance or to withdraw from the contract in whole or in part. Claims against us for damage of any type are excluded in these cases. We are not responsible in the following cases, among others, which happen to us or our preliminary suppliers: force majeure, official interventions, sovereign interventions, strikes, demonstrations, lock-outs, work disruptions due to political or economic circumstances, lack of raw materials and operating supplies, disruptions of operations, transport delays. We are otherwise liable as defined by statutory provisions. If we are liable for damages according to these provisions, the purchaser’s claim for damages is limited to damages foreseeable at the time of conclusion of the contract. In the event of delay, we are liable for compensation of the delay according to clause 12. This amounts to 0.2% for each full week of the delay, but a maximum of 5% of the value of the portion of the total delivery which was not delivered on time or not delivered as per the contract due to the delay or failure to deliver. This limitation does not apply if we are liable in cases of willful or grossly negligent conduct. We are not liable in any case for deliveries which are delayed or which were not made due to the fault of suppliers. It is up to the parties to provide proof of a higher or lower damage.
4. TRANSFER OF RISK, PACKAGING
Shipment is made on the account of and at the risk of the purchaser. Even if delivery with freight prepaid was agreed upon, the risk passes to the purchaser no later than with the dispatch of the items to be shipped (PORAVER®). This also applies in the case of partial deliveries. If the shipment is delayed due to circumstances for which the purchaser is responsible, the risk will pass to the purchaser as of the date on which a dispatch note is issued to the purchaser.
Unless agreed upon otherwise in writing, our prices are stated ex-works Postbauer-Heng (EXW Incoterms 2010) plus freight, packaging, the respective statutory VAT as well as special services such as insurance, unloading, customs, duties or other taxes. If no price is agreed upon, our prices applicable on the date of the order will be invoiced. Invoicing will be on the basis of delivery weight and the weight of packaging (bag and pallets) will be subtracted from the delivery weight.
6. PAYMENT AND INTEREST ON LATE PAYMENT
Invoices will be based on the list prices valid on the day of delivery and will be in € (Euro). Our invoices are payable within 10 days of the date of the invoice with a 2% discount, or within 30 days of the date of the invoice without any discounts. The early-payment discounts are not granted if the purchaser is in arrears with payment for earlier deliveries. We are not obligated to accept bills and/or checks. If bills and/or checks are accepted, this is only as payment and subject to receipt. In the event of payment default, application to begin bankruptcy proceedings on the purchaser’s assets and/or if we become aware of circumstances after the purchase has been completed which are objectively capable of decreasing the purchaser’s creditworthiness, we are entitled to request advance payment or a security deposit for all contracts not yet delivered, in accordance with section 321 of the German Civil Code. If the purchaser is culpably in arrears with his/her payments, we can demand interest for late payment as of the due date, in accordance with section 288 of the German Civil Code. Both parties are entitled to provide proof of higher or lower damage.
7. OFFSETTING AND RETENTION
The purchaser cannot offset nor exercise the right of retention for claims which have not been established by a final judgment or which we have not expressly recognized.
8. PRODUCT INFORMATION
The information about PORAVER® in price lists, brochures, recommendations, samples, etc. is only binding to the extent that it is expressly referred to in the contract. This information represents non-binding approximate average values; deviations which occur despite exercising care do not represent deficiencies as defined by the statutory warranty rights and do not give rise to any claims for compensation. This also applies in particular to weight tolerances of plus/minus 20%.
9. USE OF THE GOODS
When applying/using PORAVER®, the purchaser must comply with all relevant laws, rules and other regulations (e.g. building regulations, building codes, DIN, production, application and licensing requirements, etc.). Likewise, the purchaser must impose this obligation on any customers who purchase PORAVER® from him/her. Purchasers of PORAVER®, prior to using/processing it, must check the extent to which this use/processing is permissible. If approvals or the like are required, the purchaser must obtain these him-/herself at his/her own cost prior to use and comply with them. We are not responsible for restrictions on use resulting from regulations unless we have provided express assurance of their non-existence. No statement on the suitability of PORAVER® is associated with the sale/purchase or use of PORAVER®. Use by the purchaser is at his/her own risk. Descriptions and recommendations, of any nature and form, with the exception of corresponding express contractual assurances or assumptions of a guarantee, do not release the purchaser from his/her obligation to test PORAVER® or have PORAVER® tested at his/her expense regarding its suitability for the purchaser’s intended purpose.
Within 7 days of transfer/delivery, the purchaser is to provide written notice of any defects which are evident and can be identified during a proper examination, provided such an examination is customary during the course of business. The purchaser is to give notice in writing of defects which are not evident and which cannot be identified during a proper examination within 7 days after such defects are discovered. In the event of failure to give notice of any defects, warranty rights for the defects concerned will not be honored. A delivery about which a complaint has been filed is not to be used until we have examined the delivery. If it is nonetheless used, the purchaser forfeits any right to complain with regard to the defect in question and any compensation claims arising from it. If there is no agreement about the presence of a defect about which timely notice was given, an expert appointed by the purchaser and the seller will decide on the legitimacy of the complaint. If the parties cannot agree on an expert, an expert from the State Trade Institute [LGA] in Nürnberg will decide. Complaints regarding goods and claims for compensation of any type are excluded if our goods have been worked on, processed or installed and/or used for purposes other than those for which they are intended and/or the relevant regulations were violated and if complaints regarding goods, etc. are based on foreign provisions which differ from our relevant provisions. Claims for defects become time-barred within 12 months. If the customer is a consumer as defined by section 13 of the German Civil Code [BGB], they are time-barred after 24 months.
11. LIABILITY FOR DEFECTS OF THE DELIVERY
A complaint which is justified according to the above provisions initially obligates us to rework the goods or to deliver replacement goods (subsequent fulfillment), at our discretion. Should the rework or replacement delivery be unsuccessful, the purchaser may, at his/her discretion, demand a payment adjustment (reduction) or withdraw from the contract. Additional claims by the purchaser, in particular a claim for compensation for damages which did not arise with regard to PORAVER® itself are excluded. This exclusion of liability does not apply in the case of intent, gross negligence or culpable violation of essential contractual obligations, nor to damages arising from injury to life, body or health by us. In the case of culpable violation of essential contractual obligations, we assume liability – except in the case of intent and gross negligence – only for damages which are typical for the contract and reasonably foreseeable. The exclusion of liability additionally does not apply in cases in which, according to the Product Liability Act, in the case of defects of the delivery item, there is liability for personal or material damages to privately used items.
12. LIABILITY FOR SECONDARY OBLIGATIONS
If, through our fault, the item delivered (PORAVER®) cannot be used by the purchaser as provided in the contract due to omitted or defective execution of recommendations and advice before or after the conclusion of the contract as well as other contractual secondary obligations – in particular, required information about the use of the item delivered, the provisions in section 11 apply accordingly, subject to exclusion of further claims by the purchaser.
13. RETENTION OF TITLE
We retain title to the item delivered until full settlement of all claims to which we are entitled from the purchaser. The purchaser, from this point in time, assigns his/her right to any payments due from any resale of our goods or for any other legal grounds to us in full, without this requiring a separate declaration of assignment; we accept this assignment. If the delivered items or the objects manufactured from them are resold by the purchaser or installed in a property or building of a third party and thus become a part of such properties or buildings, the purchaser’s claims which take the place of these items, if applicable also the purchaser’s claims from his/her customers or third parties, will pass to us as security for our claims, without the need for a separate agreement. We agree to release the securities we are entitled to if value exceeds 20% of the claims to be secured, provided that these claims have not yet been settled. Upon full payment of our claims, the ownership is assigned to or returned to the purchaser and he/she regains entitlement to claims that had been assigned to us.
14. PLACE OF PERFORMANCE
The place of performance for the services of both parties is our head office in Postbauer-Heng.
15. PLACE OF JURISDICTION
96049 Bamberg is agreed upon as being the exclusive place of jurisdiction for any disputes arising from the contractual relationship. We are also entitled to bring legal action at the head office of the purchaser. The above-mentioned provisions apply provided the preconditions of section 38 German Code of Civil Procedure [ZPO] are given, including for complaints regarding checks and bills.
16. APPLICABLE LAW, GOVERNING LANGUAGE
All contractual relationships are exclusively subject to the laws of the Federal Republic of Germany with the exception of its reference clause and the regulations of the UN Convention on the International Sale of Goods (CISG). In the case of translations into another national language with regard to their legal assessment, only those contracts, documents, etc. in the German language are valid.