GENERAL TERMS OF SALE OF VOTTELER LACKFABRIK GMBH & CO.KG
Status 11/2022
1. General information
1.1 These General Terms of Sale (German abbreviation: AVB) shall apply to all legal relationships, of which the object is the deliveries and/or services of Votteler Lackfabrik GmbH & CO. KG to an orderer that is not a consumer within the meaning of Section 13 German Civil Code [Bürgerliches Gesetzbuch – BGB].
1.2 Deviating Terms of Purchase of the orderer shall exclusively become content of the contract if they have been explicitly agreed to.
1.3 Possible individual contractual agreements shall have precedence over these AVB.
1.4 Declarations of the orderer with regard to the contract (setting of deadlines, report of defects, rescission, reduction, etc.) are to be submitted in writing. This shall comprise a written and text form (letter, email, fax, etc.). Stricter statutory form requirements shall remain unaffected.
2. Conclusion of contract
2.1 Our offers are without obligation and are always deemed ex works. Possible binding offers must be accepted by the orderer within the stated acceptance deadline, otherwise within a reasonable deadline.
2.2 The orderer is bound to his order for two weeks from its receipt by us.
2.3 The contract shall be concluded by our explicit order confirmation or implied declaration (for example delivery, etc.). A mere failure to make a statement shall not be sufficient as a declaration of acceptance.
2.4 We shall reserve all rights to the documents enclosed with our offers (drawings, blueprints, samples, etc.). They may not be made accessible to third parties and are to be returned without delay at our request.
3. Scope of services
3.1 Our delivery and service obligations are principally deemed “ex works” (EXW, Incoterms 2020) and shall be fulfilled with separation and provision, unless otherwise agreed.
3.2 Details provided in our offers and order confirmations as well as in another manner (catalogues, product descriptions, data sheets, drawings, blueprints, samples, etc.) regarding the condition and characteristics of the deliveries and services (dimensions, quantities, use, technical data, etc.), describe the condition and characteristics of an object of delivery, however, do not represent any guarantees within the meaning of the law, insofar as not explicitly agreed otherwise.
3.3 We are entitled to provide partial services to a reasonable extent.
3.4 A possible export of the objects of delivery by us shall take place at the costs and risk of the orderer. It shall bear the risk for the fulfilment of all applicable export and import provisions, in particular that the export is capable of being granted permits and has to provide all documents necessary for this purpose. If it breaches applicable law with the export, or if it cannot provide necessary permits, we shall be entitled to rescind the contract. At our request the orderer has to submit a written confirmation of the use and final location of the objects of delivery overseas.
3.5 Any technical application support or advice by us shall be provided without any legal obligation. Such an obligation neither results from prospective or placed orders, nor from the circumstance that we actually provide consultancy. This shall only concern non-binding information, also with regard to possible property rights of third parties. The orderer must inspect the products delivered by us for their suitability for the intended processes and purposes itself. The orderer must also check whether our handling instructions are transferable to the operating conditions of the orderer. The application, use and processing of the products also lie in the exclusive scope of responsibility of the orderer. Therefore, if it is determined after processing of our materials that the coatings produced by the orderer itself are defective, our liability is excluded. Incidentally, liability shall be oriented to Subclause 10. 10.
4. Prices
4.1 Our prices are net prices and are always deemed “ex works” (EXW, Incoterms 2020), plus packaging, shipment and the applicable rate of value added tax. This shall also apply if the objects of delivery are shipped at the orderer’s request.
4.2 Price details in offers, price lists, etc. are without obligation and are updated regularly.
4.3 Prices in binding offers or agreements shall apply exclusively to the respective individual order.
4.4 The sizes decisive for the price calculation (weight, quantity, volume, etc.) shall be measured by us. The orderer can request an official weight determination at its own costs. The risk of delays to services caused hereby shall be borne by the orderer.
4.5 In case of export of the objects of delivery the German value added tax shall only cease to apply after provision of proof of export.
4.6 In the event that after conclusion of the contract the net purchase prices to be paid by us for necessary materials (in particular for raw materials) at the time of delivery to the orderer should rise or fall by more than 10 per cent, each of the contractual parties has the right to request commencement of supplementary negotiations from the respective other party, with the aim, by agreement, to achieve a reasonable adjustment to the contractually agreed prices for the contractual materials concerned to the current delivery prices.
5. Payment
5.1 Our remuneration shall be due with the fulfilment of the owed service. If we provide our service in delimitable partial sections, we shall be entitled to make a corresponding part of the remuneration due for each partial section.
5.2 Invoice amounts of less than EUR 500.00 are to be settled pure net within 14 days from the invoice date. Incidentally, our invoices are payable within 30 days pure net from the invoice date. Cash discount deduction is excluded.
5.3 For individual orders of materials with a scope of delivery of less than 100 kg or 100 ltr. or a value of goods of less than EUR 250.00, we shall charge a minimum quantity surcharge of EUR 50.00.
5.4 Costs for packaging, shipment, insurances and taxes will be determined at the time when they are incurred.
5.5 The right of the orderer to offset against counterclaims or to retention due to counterclaims shall only exist insofar as these counterclaims are undisputed or are final and binding. The orderer shall only have a right of retention if its counterclaim is based on the same contractual relationship.
5.6 If, according to the circumstances, there is a threat of insolvency or lack of willingness to pay on the part of the orderer, in particular with a substantial deterioration in its financial circumstances, initiation of enforcement measures, opening of insolvency proceedings against it, or refusal of payment we shall be entitled to only carry out further deliveries and services against advance payment or provision of securities or to rescind the contract
6. Delay in delivery, reservation of delivery, force majeure
6.1 The adherence to the delivery deadlines and the delivery dates presumes that the orderer fulfils the acts of assistance and obligations for which it is responsible, in particular documents to be provided, necessary permits, releases and agreed advance payments, properly and within the deadlines. If it does not do this the deadlines shall be extended by a reasonable extent, insofar as we are not responsible for the delay.
6.2 If the delivery is delayed by export or import controls the delivery deadline shall be extended in line with the delay.
6.3 All services and service deadlines are deemed subject to the correct and timely self-delivery and according to the delivery possibilities. Should we not be able to provide the service because we have not received our deliveries without this being our fault despite a contractual obligation, or the service is not available on the market despite reasonable efforts, the service deadlines shall be extended for the period of the impediment to delivery plus a reasonable lead time. If the impediment is permanent both parties shall be entitled to rescind the contract in writing within a reasonable deadline.
6.4 If the service is delayed due to force majeure or other circumstances for which we are not responsible the deadlines shall be extended to a reasonable extent plus a reasonable lead time. Each party can request adjustments to the contract according to the requirement of good faith. If an adjustment to the contract is deemed unreasonable it shall be replaced by the right to rescind the contract in writing within a reasonable deadline.
Force majeure shall in particular comprise war, civil war, revolution and other upheavals of power, acts of terrorism or sabotage, currency and trade restrictions, embargoes, sanctions or other mandatory state interventions, extreme natural events such as plague, epidemics or catastrophes, labour unrest such as boycotts, strikes, occupations, etc., including at the supplier’s sub-suppliers, operational disruptions such as explosion, fire, destruction of equipment, permanent failure of means of transport.
6.5 The orderer shall be notified of an impediment to service without delay.
7. Passing of risk
7.1 The risk shall pass with the separation or provision of the object of service to the orderer. This shall also apply if partial deliveries are made or we have taken on other services still, such as the shipping costs, delivery, unloading or installation.
7.2 If the delivery or service is delayed due to circumstances for which the orderer is responsible the risk shall pass to the orderer at the time at which the risk would have passed to it without the delay.
7.3 Subclauses 7.1 and 7.2 shall apply accordingly to possibly (agreed) acceptances. The decisive time is the acceptance date, alternatively our report of the readiness for acceptance.
7.4 The orderer may not refuse the acceptance or taking delivery due to an insignificant defect.
7.5 Insurances for the objects of delivery shall be concluded at the request and costs of the orderer.
8. Objects on loan
8.1 The objects made available to the orderer by us on loan (loan objects; e.g. loan containers, loan barrels, stacking tanks, items of operating equipment, etc.) shall remain our property. They shall be cared for and maintained according to their technical requirements. They may not be used for other purposes than to store the products delivered by us.
8.2 If the orderer breaches these obligations we may request the hand-over of the objects on loan without delay. It shall not be entitled to a right of retention.
8.3 After emptying, returnable containers must be returned in perfect and usable condition with our next delivery. Otherwise, they are to be returned at the costs and risk of the orderer.
8.4 If loaned objects are returned late or in an unusable condition, the customer shall bear the resulting costs.
9. Rights due to defects
We shall assume warranty for material defects and defects of title of the objects of purchase under the exclusion of further claims – with the exception of the special statutory regulations regarding the reimbursement of expenses with final delivery of newly produced goods to a consumer (supplier recourse) and subject to Subclause 10 of these AVB – as follows:
9.1 Material defects
9.1.1 For defects to the delivery or service with the passing of risk we undertake, at our choice, to subsequent improvement or new delivery; this shall not apply insofar as the orderer is aware of the defect upon conclusion of the contract or is not aware of due to gross negligence. The expenses required for the subsequent performance shall be borne by us insofar as these are not increased by the fact that the object of purchase was transported to another location than the place of performance, unless the transport corresponds with the use as intended.
9.1.2 The orderer has to inspect each delivery or service without delay for defects and to report determined defects in writing without delay. The receipt of the report of defect by us is decisive. If it does not do this the delivery or service shall be deemed as approved. This shall not apply insofar as the defect could not be recognised despite a proper inspection for defects without delay. In this case, the notification of defects must be made immediately after the hidden defect has been detected. If a defect is asserted payments of the orderer may only be withheld to an extent, which is reasonably in proportion to the occurred defect.
9.1.3 The orderer has to give us the necessary time and opportunity to carry out the necessary subsequent improvements or subsequent deliveries; otherwise, we shall be released from liability for the thus ensuing consequences. Only in urgent cases of a danger to the operational safety or to prevent disproportionately large damages, will the orderer have the right to remedy the defect itself or have this remedied by third parties and to request reimbursement of the necessary expenses from us. In this case we are to be notified immediately.
9.1.4 If the subsequent improvement or subsequent delivery has failed or is not carried out within a reasonable period of time then the orderer can reduce the price or rescind the contract according to the statutory regulations. The orderer can exclusively reduce the price due to an insignificant defect.
9.1.5 The claim for reimbursement of expenses (Section 439 Para. 3 BGB) is limited to the net price of the defective object of delivery. The claim is excluded insofar as the orderer was aware of the defect at the time of installation or fitting or was not aware hereof as a result of negligence.
9.1.6 The warranty for defects is excluded for used objects of service, in case of an insignificant deviation from the agreed condition and an insignificant impairment to the usability. It is furthermore excluded for deteriorations to the object of delivery through improper operation, improper storage, operation, treatment or use including late processing (e.g. exceeding the use-by date), natural wear and tear, use of unsuitable operating materials, chemical, electrochemical or electrical influences, unauthorised or improper subsequent improvement, reworking, repair or other modification of the object of delivery, by the orderer or a third party, including the use of components not supplied by us in a mixed assembly. This shall not apply insofar as we are at fault.
9.1.7 Further warranty claims for material defects are excluded. Possible claims for damages shall exist exclusively according to the provisions of this contract.
9.2 Defects of title
9.2.1 If the orderer infringes domestic industrial property rights by the use or distribution of our objects of delivery, we shall indemnify it from thus resulting claims.
9.2.2 We undertake to remedy the infringement of rights by procuring the necessary authorisations or by reworking the object of delivery.
9.2.3 If it is not possible to remedy the infringement of rights, not possible within a reasonable period of time or not at reasonable costs both parties shall be entitled to rescission.
9.2.4 The provisions of Subclauses 9.2.1 to 9.2.3. shall only apply insofar as the infringement of rights has not been recognised by the orderer for our disadvantage, is not disputed by us or is declared final and binding. They shall furthermore not apply insofar as the orderer is responsible for the infringement of legal rights, in particular by a change, connection or use of the object of delivery not envisaged as per contract.
9.2.5 Incidentally, Subclause 1 shall apply accordingly.
9.2.6 Further warranty claims for defects of title are excluded. Possible claims for damages shall exist exclusively according to the provisions of this contract.
10. Damages
10.1 We shall be liable in accordance with the statutory provisions, insofar as no deviating provisions are made in these General Terms of Sale. An extension to the statutory liability hereby is excluded.
10.2 The orderer has a claim for damages, no matter for which legal grounds, exclusively in case of
a) wilful intent
b) gross negligence
c) responsible injury to life, the body or the health,
d) assumption of a guarantee or a procurement risk,
e) Liability according to the German Product Liability Act [Produkthaftungsgesetz],
f) malicious failure to disclose a defect,
g) responsible breach of an essential contractual obligation (obligations, the fulfilment of which enables the proper implementation of the contract at all and the compliance with which the orderer relies on as a rule and may also rely on); in this case liability is limited to the foreseeable damages that are typical for the contract.
10.3 All liability is limited to the foreseeable damages that are typical for the contract; excluded from this is liability according to Subclauses 10.2 a) to f).
10.4 Insofar as liability for damages towards us is excluded or limited this shall also apply for the benefit of the personal liability for damages of our employees, workers, representatives and vicarious agents, as well as for the liability of the companies affiliated with us, of our suppliers and licensors.
11. Statute of limitations
11.1 the statute of limitations of claims due to Subclause 10.2 a) to f) shall be oriented to the statutory regulations.
11.2 All other claims of the orderer, no matter for what legal grounds, shall become statute-barred after 12 (twelve) months.
11.3 The statute of limitations for claims due to a defect to the delivery or service shall begin with the passing of risk, in the event of a (arbitrary) acceptance with the acceptance.
12. Reservation of title
12.1 We reserve the property to the objects of delivery until the full satisfaction of all claims against the orderer (reserved goods).
12.2 The orderer may resell, combine, mix or process the objects of delivery in the ordinary course of business. Products created in this manner shall also be deemed as reserved goods; the reservation of title shall extend hereto at their full value. In case of the existence of property rights of third parties to the products we shall acquire co-ownership in the ratio of the invoice values of the connected objects. If our ownership ceases to exist due to a connection of the reserved goods with a main object of the orderer then it is obliged to transfer pro rata co-ownership to us. If our ownership of the reserved goods ceases to exist due to connection with the main object or the property of a third party, then the orderer shall assign the thus ensuing claims to us
12.3 In the event of the resale of the reserved goods the orderer hereby now already assigns its claims arising from this against its buyers to us in full or in the amount of the possible co-ownership share as collateral.
12.4 The orderer is entitled to collect the claims. We shall not make use of our right to collect the claims ourselves as long as there is no threat of insolvency or unwillingness to pay on the part of the orderer according to the circumstances. If the latter case occurs, we are entitled to revoke the collection authorisation and to request information about the assigned claims and their debtors as well as all details and documents that are necessary for the collection.
12.5 In case of a not merely slight breach of an obligation by the orderer, in particular with default of payment for which it is responsible, we are entitled to request that the object of purchase is handed over after a prior reminder. Neither this, nor an attachment shall represent a rescission.
12.6 The reserved goods may not be used as collateral towards third parties before the full satisfaction of the claims secured hereby. In case of a threat of disposals of third parties over the reserved goods, in particular attachments, confiscations or enforcement measures we are to be informed hereof by sending all documents required for defence immediately in writing. The costs required for the defence shall be borne by the orderer.
12.7 We undertake, at the request, of the orderer to release the securities to which we are entitled at our choice to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%, presuming the excess security does not only exist temporarily.
13. German Packaging Act
Pursuant to Section 15 Para. 1 Sentence 1 German Packaging Act [Verpackungsgesetz] manufacturers and distributors of the packaging referred to therein are obliged to take back free of charge used, empty packaging of the same type, shape and size as the packaging they put into circulation at the place of actual handover or in the immediate vicinity thereof in order to recycle or reuse it.
In deviation from this, the orderer and Votteler agree that the orderer shall take back any packaging pursuant to Section 15 Para. 1 Sentence 1, Nos. 1 to 4 German Packaging Act at its place of business or at another place to be determined by it and within its area of responsibility and shall inform its respective clients or customers about the return option and the purpose of the return. The costs for taking back as well as the proper disposal or recycling shall be borne by the orderer. A return of packaging within the meaning of Section 15 Para. 1 Nos. 1 to 4 German Packaging Act at the registered seat of Votteler is excluded.
Insofar as no agreement deviating from Section 15 Para. 1 Sentence 4 German Packaging Act (individual agreement) of Subclause 11.1 was reached, Votteler shall, in order to fulfil the take-back obligations pursuant to Section 15 German Packaging Act, ensure the take-back as well as the professional and proper recycling of the packaging delivered by Votteler. The return shall be effected by collection of the packaging by a third party to be commissioned by Votteler upon request by the orderer. The costs incurred for collection and recycling shall be borne by the orderer. If the packaging supplied by Votteler is not returned according to this provision, the orderer shall be responsible for the proper and correct recycling of the packaging at its own expense.
The above provision shall not apply to reusable packaging within the meaning of Section 15 Para. 1 No. 5 in conjunction with Section 3 Para. 3 German Packaging Act. This shall in particular apply to standardised Euro pallets and lattice boxes.
Insofar as the goods have been handed over to the orderer on Euro pallets or lattice boxes (load carriers) (reusable packaging within the meaning of Section 3 Para. 3 German Packaging Act), the orderer shall hand over to Votteler load carriers in the same number as well as the same type and quality at the place of the original handover.
14. General final provisions
14.1 The place of jurisdiction for all rights and obligations from and in connection with the contractual relationship is our registered seat. We are entitled to sue the orderer at its headquarters.
14.2 The law of the Federal Republic of Germany is decisive for all legal relationships in connection with this contract. The Convention of the United Nations on Contracts for the International Sale of Goods (CISG) is excluded.
14.3 We assure that we comply with the occupational safety laws, in particular also the regulations of the German Act Regulating a General Minimum Wage [Mindestlohngesetz – MiLoG] and we also obligate our suppliers in this respect.
14.4 Should any provision of these terms and conditions be or become (partially) invalid, the validity of the other provisions of these terms and conditions shall not be affected thereby. The contractual parties undertake to agree on a new provision to replace the invalid provision, which shall as far as possible correspond regarding its content with the originally intended purpose.
Version 11/2022