Terms of Sale of Votteler Lackfabrik GmbH & CO. KG
The supplier shall be liable within the scope of the statutory provisions for all damages, which are inflicted upon us and/or third parties due to conduct in breach of the contract or other damaging conduct, insofar as not otherwise regulated in these business terms and conditions.
1. General information and scope
(1) These business terms and conditions shall apply towards a person, who acts as an entrepreneur upon conclusion of the contract, and towards legal entities under public law or a special fund under public law.
(2) All deliveries and services are based upon these terms and conditions as well as upon possible separate contractual agreements. Deviating Terms of Sale of the supplier will not become part of the contract either due to a lack of objection or by an acceptance or payment of the contractual deliveries and services without reservation.
(3) The supplier undertakes to comply with the occupational safety laws, in particular the regulations of the German Minimum Wage Act [Gesetz zur Regelung eines allgemeinen Mindestlohns - MiLoG].
2. Offers, offer documents, conclusion of contracts
(1) We will remain bound to our offer until 3 days after receipt. The acceptance by the supplier shall be carried out by returning the duplicate of the order signed by it. The duplicate must have been received by us no later than 3 days after receipt of our order.
(2) All order documents made available by us to the supplier, in particular samples, models, drawings and calculations and similar information of a physical or non-physical kind, also in an electronic form, shall remain our property and may not be communicated to third parties, in particular not be used for competitive purposes. We also reserve the copyrights hereto. The supplier is not entitled to make and retain copies. They are to be exclusively used for the production based on our order and are to be returned to us without request and free of charge after the final processing of the order.
(3) The supplier undertakes to only make all information, which is explicitly described as confidential by us or the need for secrecy of which can be derived from the circumstances, accessible to third parties with our explicit written consent.
(4) We are entitled to terminate the contract at all times. In these cases we are only obligated to remunerate the supplier for the services provided by it including the calculable profit (pro rata profit) relating hereto.
(5) The supplier is not entitled to communicate within the scope of its advertising or towards other buyers in any manner that it maintained, maintains or will maintain a business relationship with us. For each case of the culpable infringement the supplier is obligated to pay a contractual penalty to us in the amount of EUR 2,500.00.
3. Prices, terms of payment
(1) The agreed prices are fixed prices and exclude all subsequent claims. In the absence of a deviating written agreement the price shall include the delivery "Free domicile" as well as the costs of packaging, transport up to the shipping address or place of use stated by us as well as for customs formalities and customs duties. If a price is agreed "ex works", "ex warehouse" or similar conditions, at our request a carrier is to be commissioned that is named by us. All costs incurred until the hand-over to the freight forwarder including loading and cartage shall be borne by the supplier. If no prices are stated in the order the current list prices of the supplier shall apply with the customary deductions. The agreement regarding the place of performance will not be affected by the type of pricing.
(2) The price shall not include the statutory value added tax.
(3) If and as far as requested by us the supplier is obligated to take the packaging back and to collect it from us at its costs. The goods are to be packed so that transport damages are avoided. If packaging is invoiced to us separately as an exception then we are entitled to return packaging, which is in a good and reusable condition for the supplier, against a remuneration of 2/3 of the value charged for the packaging carriage paid to the supplier.
(4) Invoices/credit notes are to be sent to us in duplicate by stating the underlying deliveries by post. The following must be precisely stated on invoices and credit notes:
• Votteler supplier number
• Votteler order number
• Votteler article designation
• Votteler article number
• Gross weight and net weight in kg
Until the submission of a proper invoice we are entitled to a right to refuse payment, unless the supplier proves to us that it is not responsible for the non-compliance with this obligation.
(5) Insofar as certificates regarding material tests etc. have been agreed they shall form an integral part of the delivery and are to be sent to us together with the delivery. The payment deadline shall not begin before the receipt of these agreed certificates.
(6) We shall pay, insofar as not otherwise agreed in writing, the purchase price within 14 days, beginning from the delivery and receipt of the invoice, with 3% cash discount or within 30 days net, also beginning from delivery and receipt of the invoice.
(7) We are entitled to a right to offset and right of retention to the statutory extent. The supplier is not entitled to assign its claims directed against us, unless it concerns a monetary claim, which is assigned within the scope of a trading transaction.
4. Deliveries, time of delivery and service, default
(1) The agreed delivery dates are binding. Partial deliveries are only permitted with our consent.
(2) If circumstances occur or if circumstances become recognisable for the supplier, from which it can be derived that the required delivery time cannot be adhered to, it must notify us hereof in writing without delay by stating the reasons and the expected duration of the delay.
(3) In the event of the delay in delivery we shall be entitled to the statutory claims. We are entitled, in the event of a delay in delivery, to request a contractual penalty in the amount of 0.5% of the delivery value per full week, in total however no more than 5%. We are entitled to assert a contractual penalty besides the fulfilment. The reservation of assertion of the contractual penalty can be declared towards the supplier by us still until no later than within 10 workdays, beginning from the acceptance of the late delivery. The contractual penalty is to be offset against a claim for damages due to default as well as against a claim for compensation of the damages due to non-fulfilment. Further claims and rights shall remain reserved.
(4) In case of premature delivery of the goods we are entitled to store these until the agreed delivery date at the costs and risk of the supplier. The same shall apply in the event that we only need the goods at a later time again owing to the delay in delivery. In case of premature delivery the deadlines of No. 3 Par. 6 of these terms and conditions will only begin to run as of the agreed delivery date.
(5) Force majeure, lawful industrial dispute measures such as strike and/or lock-out shall release us from our service obligations for the duration of the interference and to the extent of their effect. This shall also apply with other similarly serious events if we are not responsible for these. This shall furthermore apply if these events occur at a time at which we are in default. We will provide the necessary information without delay within the scope of that which is deemed reasonable. The parties will adjust their obligations to the changed circumstances in good faith. We shall be fully or partly exempted from the obligation to accept the ordered delivery/service and accordingly entitled to rescission of the contract if the delivery/service is no longer usable for us owing to the delay caused by the stated circumstances by taking financial aspects into consideration.
5 Passing of risk, documents
(1) The delivery of the goods shall be carried out for the account and at the risk of the supplier free domicile to the delivery address stated by us, which is to be requested by the supplier. This is the place of performance for the obligations of the supplier.
(2) The supplier and the persons thus commissioned by it first have to report to the reception at the respective delivery address and always have to comply with the safety and other instructions.
(3) The shipment shall be carried out at the supplier’s risk. The risk of each deterioration including the accidental loss shall remain with the supplier until the delivery at the address stated pursuant to Par. 1 respectively at the place of use stated by us. This shall also apply if the deliveries/services are not carried out within the daily delivery times stated by us and are therefore not accepted. The supplier has to ask about the delivery times.
(4) The aforementioned provisions shall also apply if we should pay the freight costs in addition.
(4) The acceptance of the goods shall be deemed as carried out if the receipt of the goods was confirmed by us.
(5) The supplier undertakes to transfer and hand over all documents relating to the goods (completed guarantee certificates, test certificates, instructions for use, installation instructions, declarations of conformity and operating instructions, etc.) to us free of charge and costs upon delivery of the goods. If the aforementioned documents are fully or partly incomplete, we do not have to accept the goods. Furthermore, the following are to be entered on the delivery note:
• Votteler supplier number
• Votteler order number
• Votteler article designation
• Votteler article number
• Gross weight and net weight in kg
At our request the supplier has to transmit the stated documents to us in an electronic form that is usable for us.
6.1 Liability of the supplier
6.2 Our liability
(1) In case of a culpable breach of essential contractual obligations we shall be liable according to the statutory provisions, whereby our liability is limited in the event of slight or gross negligence in these cases to the typically occurring, foreseeable damages.
(2) If the supplier justifiably asserts claims for damages instead of the service, we shall be liable to the same extent, also however limited to compensation of the foreseeable, typically occurring damages.
(3) We shall also be liable according to the statutory provisions if the supplier justifiably asserts claims for damages, which are due to wilful intent or gross negligence of the owner, its legal representatives or vicarious agents. In case of non-wilful acts of breach our liability for damages is, however, limited to the foreseeable, typically occurring damages.
(4) This shall have no effect on liability for damages resulting from injury to life, the body or the health, which are due to a negligent breach of obligations on our part or a wilful or negligent breach of obligations by a legal representative or vicarious agent.
(5) Insofar as our liability for damages is excluded or limited this shall also apply with regard to the personal liability for damages of our employees, workers, representatives and vicarious agents.
(6) Insofar as not otherwise regulated above, further claims of the supplier for damages are excluded. This shall also apply to claims for damages from fault upon conclusion of the contract, owing to other breaches of obligations and owing to claims in tort for compensation of property damages pursuant to Section 823 German Civil Code [Bürgerliches Gesetzbuch - BGB].
(1) We will inspect incoming goods in our company without delay after the delivery, insofar as this is feasible according to the proper course of business and according to the type of goods and their intended use. The inspection within the meaning of Section 377 Para. 1 German Commercial Code [Handelsgesetzbuch - HGB] is deemed in time if it is carried out within five workdays, beginning from receipt of the goods. The complaint within the meaning of Section 377 Para. 1 HGB is deemed in time if it is received by the supplier within 5 workdays after discovery of the defect; the same shall apply with hidden defects within the meaning of Section 377 Para. 3 HBG from discovery of the defect. If the deliveries require a longer inspection than the stated 5 workdays owing to their type and condition, our inspection obligation shall be extended accordingly.
(2) The supplier shall be liable for possible defects to the goods to an unlimited extent according to the statutory regulations.
(3) After the unsuccessful expiry of a reasonable deadline determined for the supplier for the subsequent fulfilment, we are entitled to remedy the defect ourselves and to request reimbursement of the necessary expenses, unless the supplier rightly refused the subsequent fulfilment. We shall also have this right to self-execution as well as to the reimbursement of expenses in cases of special urgency or in the event of impending danger, whereby in these cases it is not necessary to determine a deadline for the subsequent fulfilment.
(4) Instead of the two-year statute-of-limitations contained in Section 438 Para. 1 No. 3 BGB a statute-of-limitations of 36 months shall apply, beginning from the passing of risk. In all other cases the legal statute-of-limitations shall continue to apply.
(5) The warranty period shall begin to apply new for improved or newly delivered parts from this time – beyond the statutory inhibition.
(6) If a claim is asserted by one of our buyers of the delivered goods owing to the defectiveness of the object delivered by the supplier, our claims against the supplier shall become statute-barred at the earliest two months after the time, at which we have fulfilled the claims of the buyer. This inhibition to expiry will end five years after the supplier has delivered the object to us or we have accepted the object at the latest.
8. Product liability, indemnification, liability insurance cover
(1) If a claim is asserted against us by third parties owing to a breach of official safety regulations, owing to domestic or foreign product liability regulations or laws or owing to a fault with the product, which is a result of the goods delivered by the supplier, then the supplier undertakes to accordingly indemnify us from these claims for damages at first request if and as far as the cause lies in its scope of control and organisation and it shall be liable in the external relationship itself.
(2) Expenses for measures, which appear necessary to avoid the risk of subsequent liability owing to a fault to the goods delivered by the supplier, in particular expenses for a recall, are to be reimbursed to us by the supplier. This shall also apply to all other expenses, which arise from and in connection with the liability of the supplier for damaging events within the meaning of Par. 1. We will notify the supplier about the content and scope of the recall measures that are to be carried out – as far as possible and deemed reasonable - and give it the opportunity to make a statement.
(3) Other statutory claims shall remain out of consideration hereby.
(4) The supplier undertakes to insure itself against all risks from the product liability including the recall risk in a reasonable amount during the term of this contract, i.e. until the respective expiry of the statute-of-limitations for defects, and to submit the insurance policies to us for inspection upon request. If we are entitled to further claims for damages then these shall remain unaffected.
9. Property rights
(1) The supplier guarantees that no property rights or other rights of third parties will be infringed in connection with as well as through the delivery as well as use of the objects of delivery within the Federal Republic of Germany. Insofar as the supplier is aware that its products will also be distributed by us in other countries, the aforementioned shall also apply to these countries.
(2) The supplier will indemnify us and our customers from such claims at the first written request. The same shall also apply to other costs incurred to us in this context.
(3) Without the consent of the supplier we will not reach any agreements with the third party, in particular not reach any settlement.
(4) We are entitled to obtain the permission to use the relevant objects of delivery and services of authorised parties by taking the duty of care of an ordinary merchant into consideration at the costs of the supplier.
(5) The statute-of-limitations for all aforementioned claims is 10 years, beginning with the conclusion of the respective contract.
10. Reservation of title, provision of materials, tools, confidentiality
(1) If and as far as we provide materials to the supplier, we reserve the property hereto. All processing or conversion by the supplier will be carried out on our behalf. If the reserved goods are processed or converted with other objects not belonging to us then we shall acquire the co-ownership to the new object in the ratio of the value of our object (purchase price plus value added tax) to the other processed or converted objects at the time of the processing or conversion.
(2) If the objects provided by us are inseparably mixed or connected with other objects that do not belong to us then we shall acquire the co-ownership to the new object in the ratio of the value of the reserved object (purchase price plus value added tax) to the other objects produced by the mixing or connection at the time of these processes. If the mixing or connection is carried out to the extent that the object of the supplier is to be seen as the main object then it is deemed as agreed that the supplier shall transfer pro rata co-ownership to us. This share is assessed based on the ratio of the value of the reserved objects (purchase price plus value added tax) to the other objects at the time of the stated processes. The supplier shall hold the thus produced sole ownership or co-ownership in safekeeping on our behalf.
(3) We shall also reserve the property to plants, tools and devices. The supplier may exclusively use these objects for the production of the goods ordered by us. It is obligated to insure these objects belonging to us at replacement value at its own costs against damages caused by theft, breakage, fire, water and other damages. The supplier hereby now already assigns all claims against the insurer to us from the aforementioned damaging events, we hereby accept the assignment. Furthermore, the supplier undertakes to carry out any necessary service and inspection work on our plants, tools and devices as well as all maintenance and repair work in time at its own costs. It has to report possible incidents to us immediately; if it culpably fails to carry this out this shall have no effect on claims for damages.
(4) Strict secrecy is to be maintained by the supplier regarding all received diagrams, drawings, calculations and other documents and information. They may only be disclosed to third parties with our explicit consent. This non-disclosure obligation shall also apply after the final processing of this contract. It shall lapse if and as far as the production know-how contained in the provided diagrams, drawings, calculations and other documents has become general knowledge.
(5) Insofar as the collateral rights to which we are entitled pursuant to Par. 1 and/or Par. 2 exceed the purchase price of all of our not yet paid reserved goods by more than 10%, we are accordingly obligated, at the request of the supplier, to release the collateral rights at our choice.
11. Final regulations such as "place of performance", "place of jurisdiction" etc.
(1) In the business transactions with merchants, legal entities under public law or special funds under public law our registered seat shall be the place of performance and place of jurisdiction for all rights and obligations from and in connection with the contractual relationship. However, we are also entitled to sue the supplier at its headquarters.
(2) The law of the Federal Republic of Germany which is decisive for the legal relationships of domestic parties among one another shall apply exclusively to all legal relationships between us and the supplier.
(3) Should one provision of these business terms and conditions be invalid or become invalid generally or for the individual case for any reason this shall have no effect on the validity of the other provisions of these business terms and conditions. In this case the dispositive law shall apply. If and as far as the dispositive law does not make any regulation available for the corresponding type of contract or as an alternative solution for the General Business Terms and Conditions clause that is qualified as invalid, then the invalid provision or provision that has become invalid shall be deemed as replaced by a provision, which shall as far as possible correspond with the originally intended commercial success and which is valid.
(4) The supplier thus agrees that we and the companies affiliated with us may store and use the contact information of the supplier, including name, telephone numbers and email addresses. All information can be processed and used within the scope of the existing business relationship and can be forwarded to subcontractors and authorised agents of us as well as the companies affiliated with us for the purpose of the joint business activities, including the communication with the supplier (e.g. for processing orders).