Terms of Sale of Votteler Lackfabrik GmbH & CO. KG 70825 Korntal-Münchingen Germany
1. General information
1.1 These Terms of Sale shall apply towards: • a person, who upon conclusion of the contract acts while performing their commercial or self-employed professional activity (entrepreneur) and • is a legal entity under public law or a special fund under public law.
1.2 All deliveries and services are based upon these terms and conditions as well as possible separate contractual agreements. Deviating Terms of Purchase of the buyer will neither become contents of the contract either by acceptance of the order, nor due to a missing objection. A contract shall – in the absence of a special agreement – be concluded with our written order confirmation, in any case with the acceptance of our delivery.
1.3 Our offers are without obligation. This shall in particular also apply to the delivery deadlines and scopes of delivery stated therein. The buyer is bound to its order for two weeks after despatch to us (postal stamp).
1.4 We are not obligated to inform the orderer of the regulations that are to be applied in its business operation as well as of the official provisions applicable for products intended for transport, storage, delivery, use or processing (such as e.g. German Water Resources Act [Wasserhaushaltsgesetz - WHG]).
2.1 Our prices are deemed ex works pure net plus the statutory value added tax. Costs of the packaging and the transport as well as all other secondary costs shall be for the expense of the buyer.
2.2 The weight determination that is decisive for the price calculation shall be carried out by us, unless the orderer requests an official weight determination at its costs.
3.1 Our invoices are payable within 14 days with 2% cash discount or within 30 days pure net from the invoice date. Deduction of cash discount is only permitted if all older invoices have been paid. Invoice amounts of less than EUR 500.00 are to be settled without deduction of cash discount within 14 days.
3.2 For individual orders of materials with a scope of delivery of less than 100 kg or 100 ltr. or a goods value of less than EUR 250.00 we will charge a reduced volume surcharge of EUR 50.00.
3.3 The right of the buyer to offset against counterclaims, shall only exist if these counterclaims have been declared final and binding, are undisputed or have been recognised by us. The buyer will only have the right of retention if its counterclaim is based on the same contractual relationship.
3.4 The issue of bills of exchange shall require our written consent. The accepted bills must be bankable and discountable. The costs, expenses, etc. incurred due to the acceptance of a bill of exchange will be borne by the buyer. They are payable immediately.
3.5 If a substantial deterioration in the financial circumstances of the buyer occurs after conclusion of the contract then we are entitled to revoke granted terms of payment or to request immediate payment of all outstanding claims, irrespective of the term of possibly collected bills of exchange.
3.6 In case of default of payment the buyer may no longer sell the goods owned or co-owned by us and is obligated to provide securities to us. The authorisation to collect claims assigned to us shall lapse. The buyer shall lose the right of possession to all goods delivered to it subject to the reservation of title and is obligated to hand these over. It hereby now already waives the plea of unlawful interference with possession pursuant to Section 858 German Civil Code [Bürgerliches Gesetzbuch - BGB]. The costs associated with the taking back of goods shall be borne by the buyer.
4. Delivery and delay in delivery
4.1 The delivery time can be derived from the agreement of the parties. The adherence hereto by us shall presume that all commercial and technical questions have been clarified between the parties and the buyer has fulfilled all obligations for which it is responsible, such as e.g. to obtain possibly necessary official certificates or permits or to make a down payment. Otherwise the delivery time shall be extended by a reasonable period of time. This shall not apply if we are responsible for the delay.
4.2 The delivery time shall have been adhered to if shipments have left the works or the warehouse within the delivery time or the buyer has been notified of the readiness for shipment. Insofar as an acceptance has to be carried out – except with justified refusal of acceptance– the acceptance date is decisive, alternatively the report of the readiness for acceptance.
4.3 The adherence to the delivery deadline is subject to the reservation of the correct and timely self-supply of goods.
4.4 If the shipment respectively the acceptance of the object of purchase is delayed for reasons, for which the buyer is responsible, we can charge the buyer, beginning one month after the report of the shipment – respectively the readiness for acceptance, the costs incurred by the delay. Irrespective of further claims after the unsuccessful expiry of a reasonable final deadline we can dispose otherwise of the object of purchase, in particular store the object of purchase at the risk and costs of the buyer and/or deliver to the buyer with a reasonably extended deadline.
4.5 The delivery time shall be extended in a reasonable manner if the non-adherence to the delivery time is a result of force majeure, industrial disputes or other events, which are beyond our control. We will notify the buyer of the start and the end of such circumstances as soon as possible.
4.6 We shall be liable according to the statutory provisions if the delay in delivery is due to a breach of contract, which is due to our wilful or grossly negligent conduct. A fault of a legal representative or vicarious agent is to be attributed to us. Our liability is, however, in these cases limited to the foreseeable damages that are typical for the contract. We shall furthermore also be liable according to the statutory provisions insofar as the delay in delivery for which we are responsible is due to the culpable breach of an essential contractual obligation. In this case our liability is, however, also limited to the foreseeable, typically occurring damages.
4.7 If we are in default and if the buyer – by taking the statutory exceptional cases into consideration– grants us a reasonable deadline for service, and if this deadline is not adhered to, the buyer shall be entitled to rescission within the scope of the statutory regulations. 4.8 Partial deliveries are permitted insofar as these are deemed reasonable for the buyer.
4.9 Further claims from delay in delivery shall be exclusively determined according to No. 8. of these terms and conditions.
5. Delay in acceptance, passing of risk and acceptance
5.1 If the buyer is in default of acceptance or culpably breaches other obligations to provide assistance, we are entitled to request compensation for the damages accordingly suffered by us, including possible additional expenses. Further claims will remain unaffected.
5.2 The risk of accidental loss or accidental deterioration of the object of purchase shall pass to the buyer at the time, at which it has become in default of acceptance or is in debtor’s default. This shall also apply if the shipment is delayed, or is not carried out respectively the acceptance is not carried out as a result of circumstances, which are not attributable to us, from the day of the report of the readiness for shipment respectively acceptance. We undertake to conclude the insurances at the costs of the buyer, which are requested by it.
5.3 The property and remuneration risk shall pass to the buyer with the loading of the objects of purchase in our works even if partial deliveries are carried out or we have taken over other services still, such as e.g. the shipping costs or delivery and installation, unloading. A possibly agreed acceptance must be carried out without delay as of the acceptance date, alternatively after our report of the readiness for acceptance. The buyer may not refuse the acceptance with the existence of an insignificant defect.
5.4 The shipment shall be carried out at our best discretion without warranty on the most reasonably priced and quickest route. Additional costs caused by special shipping wishes of the buyer shall be for its expense.
6. Returnable containers and items of operating equipment made available on loan
6.1 The returnable containers (e.g. returnable barrels, stacking tanks) made available by us to the buyer and items of operating equipment shall remain our non-saleable property. They are to be treated carefully and to be maintained and serviced in compliance with the technical requirements. The returnable containers may not be used for other purposes than the storage of the delivered products. The items of operating equipment and returnable containers may only be used when our products are used.
6.2 Returnable containers must, after they have been emptied, either be handed over to our next truck in an impeccable and usable condition or however be returned freight- and expense-free at the risk of the buyer.
6.3 If the buyer is in default with the return of the returnable containers or the items of operating equipment or if they are returned in such a condition that their re-use is excluded or only possible after repair measures, we reserve the right to charge the buyer the replacement costs of brand-new equipment or containers or with the costs of the repair work and to request immediate payment.
We shall assume warranty for material defects and defects of title of the objects of purchase under the exclusion of further claims – subject to No. 8. of these Business Terms and Conditions – as follows:
7.1 Material defects
7.1.1 Insofar as a defect to the object of purchase exists as a result of a circumstance that was before the passing of the risk, we undertake, at our choice, to make a subsequent improvement or a new delivery. The expenses that are necessary for the purpose of subsequent improvement or new deliveries, such as transport, road, and material costs will be borne by us, insofar as these are not increased by the fact that the object of purchase was taken to another location than the place of performance. The buyer has to give us the necessary time and opportunity, according to our understanding, for the undertaking of all subsequent improvements or subsequent deliveries that appear necessary to us; otherwise we shall be released from the liability for the thus ensuing consequences. Only in urgent cases of the jeopardisation to the operating safety or in order to avoid disproportionately high damages, whereby we are to be notified immediately, shall the buyer be entitled to remedy the defect itself or have this remedied by third parties and to request reimbursement of the necessary expenses from us.
7.1.2 The buyer has to inspect each delivery pursuant to Section 377 German Commercial Code [Handelsgesetzbuch - HGB] without delay after receipt of delivery and to notify us of a determined defect immediately. Reports of defects can only be taken into consideration if they are submitted in writing without delay, no later however than by one week after receipt of the goods at the longest. The receipt of the report of defects is decisive. Later reports of defects are excluded. The delivery shall subsequently be deemed as approved. The loss of the rights due to defects shall not occur if the defect could not be recognised during the one-week deadline for reporting a defect with a proper examination of defects without delay. In this case the report of defects must be carried out without delay after recognition of the initially hidden defect. If a report of defects is asserted payments on the part of the buyer may only be withheld to an extent, which stand in a reasonable relation to the occurred defect.
7.1.3 If the subsequent improvement or subsequent delivery has failed, the buyer has the right, according to the statutory regulations, to reduce the purchase price or to rescind the contract.
7.1.4 No warranty shall in particular be assumed in case of unsuitable or improper storage of the objects of purchase as well as with faulty or late processing (e.g. exceeding the expiry date) as well as with the use of components of a coating (mixed structure), which were not delivered by us, unless we are at fault in this case.
7.2 Defects of title
The warranty in case of defects of title is oriented to the statutory regulations.
7.3 Statute-of-limitations The statute-of-limitations for claims due to defects is 12 months, beginning from the passing of risk.
8. Damages in case of defects and other liability
8.1 In case of a culpable breach of essential contractual obligations we shall be liable according to the statutory provisions, whereby our liability in the event of slight or gross negligence is limited in this case to the typically occurring, foreseeable damages.
8.2 If the buyer justifiably asserts claims for damages instead of performance, we shall be liable in the same manner, also however limited to compensation for the typically occurring, foreseeable damages.
8.3 We shall also be liable according to the statutory provisions if the buyer justifiably asserts claims for damages, which are due to wilful intent or gross negligence of the owner, his legal representatives or vicarious agents. In case of non-wilful acts of breach our liability for damages is, however, limited to the typically occurring, foreseeable damages.
8.4 This shall have no effect on liability for damages from injury to life, the body or the health, which are due to a negligent breach of obligations by the user of these General Business Terms and Conditions or a wilful or negligent breach of obligations by a legal representative or vicarious agents of the user of these General Business Terms and Conditions. Our liability in case of malicious failure to disclose defects or with the assumption of a guarantee of condition as well as for the mandatory liability according to the German Product Liability Act shall also remain unaffected.
8.5 The application technical advice, which we give verbally, in writing or in illustrations, shall be carried out without a legal obligation. Such an obligation shall neither result from the concluded purchase contract, nor from the circumstance that we actually carry out the advice. The advice shall only concern non-binding guidelines, also with regard to possible property rights of third parties, the buyer must examine the products delivered by us for their suitability for the intended processes and purposes itself. The buyer must also examine whether the processing guidelines provided by us without a legal obligation can be applied to the operating conditions of the buyer. The application, use and processing of the products also lie in the exclusive area of responsibility of the buyer. Therefore, if it is determined after processing our materials that the coatings produced by the orderer are defective, our liability is excluded. If, nevertheless, a liability can be taken into consideration we will only be liable in case of wilful intent or gross negligence, including the wilful intent or gross negligence of our legal representatives or vicarious agents. Insofar as there is no wilful breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damages.
8.6 Insofar as the liability for damages against us is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
8.7 Insofar as not otherwise regulated above, further claims of the buyer 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 BGB.
All claims of the buyer, no matter for which legal grounds, shall become statute-barred in 12 months. The statutory deadlines shall apply to wilful or malicious conduct as well as with claims according to the German Product Liability Act. The start of the statute-of-limitations shall be determined according to the statutory regulations.
10. Reservation of title
10.1 We reserve the ownership to the objects of delivery until the full satisfaction of all claims against the buyer including all secondary claims, which result from the business relationship with the buyer. In case of payment by issuing cheques or bills of exchange the satisfaction will only be deemed to have occurred when the corresponding amounts finally remain at our disposal.
10.2 DThe buyer undertakes to treat the objects of delivery with due care and attention. We are entitled to insure the objects of delivery at the buyer’s costs against damages due to theft, breakage, fire, water and other damages, if the buyer has not concluded the insurance itself as proven. The buyer hereby now already assigns all claims to us against the insurer from the aforementioned damaging events.
10.3 The buyer may resell, connect, mix or process the objects of delivery in the proper course of business. Otherwise it shall require our prior written consent, in particular in case of a pledge or assignment as collateral. The buyer must notify us in writing without delay in case of attachments, seizures or other disposals by third parties. Insofar as the third party is not in the position to reimburse us the court and out-of-court costs of a legal action pursuant to Section 771 German Code of Civil Procedure [Zivilprozessordnung - ZPO] the buyer will be liable towards us for the incurred loss.
10.4 In case of a not only slight breach of obligation by the buyer, in particular with default of payment, we are entitled to request that the objects of purchase are handed over after a prior reminder. The buyer is obligated to hand the objects over. Neither this, nor an attachment by us, shall constitute a rescission of the contract by us. The claim for hand-over shall not exist with regard to reserved goods, which the buyer has already paid or if the outstanding payment is due to circumstances, for which the buyer is not responsible. If the reserved goods are returned in the aforementioned manner, we are entitled to sell the reserved goods, which were returned to us, after a prior threat with a reasonable deadline and to offset the sales proceeds against the purchase price claims. We are obligated to ensure an adequate sale. In the event of the sale this shall constitute a rescission of the contract.
10.5 If the buyer is in default of payment towards us or if it can be accused of any other significant conduct in breach of the contract, we can revoke the authorisation of the buyer pursuant to No. 10.3 S. 1.
10.6 In the event of the resale of the reserved goods the buyer hereby now already assigns its claims to us in the amount of the final invoice amount (incl. VAT), to which it is entitled from the resale against its buyers or third parties irrespective of whether the object of purchase has been resold without or after processing, etc. The buyer is authorised to also collect these claims after the assignment. Our authorisation to collect the claims ourselves shall remain unaffected hereby. We undertake, however, not to collect the claims as long as the buyer is not in default of payment and no other factually justified reasons exist either, such as e.g. discontinuation of payments or the filing of an application for the opening of insolvency proceedings. If such factually justified reasons exist we are entitled to revoke the collection authorisation and can request that the buyer informs us of the assigned claims and their debtors and that it provides us with all details that are required for the collection, hands over the associated documents to us and that it notifies the debtors and third parties of the assignment.
10.7 Processing, conversion, connection or mixing of the objects of purchase by the buyer shall always be carried out on our behalf. If the objects of purchase are processed, converted, connected or mixed with other objects that do not belong to us, we shall acquire the co-ownership to the new object in the ratio of the value of the object of purchase to the other objects produced by processing, conversion, connection or mixing at the time of these processes. The same shall apply for the object produced by processing, conversion, connection or mixing as for the objects of purchase delivered subject to a reservation of title.
10.8 If the processing, conversion, connection or mixing are carried out to the extent that the object of the buyer is to be seen as the main object then it shall be deemed as agreed that the buyer shall transfer us pro rata co-ownership. This share will be assessed based on the ratio of the value of the objects of purchase (final invoice amount incl. VAT) to the other objects at the time of the stated processes. The buyer shall hold the thus produced sole ownership or co-ownership in safekeeping on our behalf.
10.9 In order to secure our claims the buyer shall assign us its claims, which accrue against a third party by the connection of the objects of purchase with a property, if due to the connection the object of purchase becomes an essential part of the property.
10.10 We undertake to release the collateral items to which we are entitled, at our choice, at the request of the buyer to the extent that the realisable value of our collateral items exceeds the claims that are to be secured by more than 10%, presuming the excess collateral does not only exist temporarily.
11. General provisions
11.1 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 buyer at its headquarters.
11.2 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 buyer.
11.3 We assure that we shall comply with the occupational safety laws, in particular also the regulations of the German Minimum Wage Act [Gesetz zur Regelung eines allgemeinen Mindestlohns - MiLoG] and will also obligate our suppliers hereto.
11.4 Should one provision of these Business Terms and Conditions be invalid or become invalid generally or in an 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.