The following General Terms and Conditions of Sale and Delivery become the contents of contracts which we (the seller) conclude with entrepreneurs within the meaning of Section 14 of the German Civil Code [Bürgerliches Gesetzbuch, BGB] (customers). These General Terms and Conditions also apply to all future business relations with the customer even if they have not been expressly agreed a second time. We expressly rebut any General Terms and Conditions of our customers.
II. Effective date of a contract
- A contract becomes effective once the customer has received our confirmation of order in text form. Our offers are to be understood as a request to the customer to submit its own offer, which we accept with the confirmation of order.
- In the case of doubt, the contents of the contract are based on the confirmation of order.
- Confirmed prices are in principle binding, unless we reserve the right in the confirmation of order to adjust the prices.
- Delivery dates or delivery periods are binding only if we confirm them in writing. Any delivery times stated are approximate.
- Subject to any other individual agreement, we shall deliver the properly packed goods (obligation to perform at the place of despatch). We always deliver EXW, Incoterms 2010, unless we confirm a different procedure.
- The timing of despatch ex works is decisive for compliance with delivery periods and dates. If the goods cannot be despatched in a timely manner through no fault on our part, we are deemed to have satisfied our obligations by notifying the customer that the goods are ready for despatch.
- Delivery periods commence from the date of our confirmation of order. Delivery periods and delivery dates are postponed or extended until our customer has performed its own required contribution for the execution of the order (e.g. obtaining all official certificates, providing guarantees and letters of credit, making advance payments, printing and product approval certificates, delivery of primary or intermediate products/packing).
- In the case of delay, the customer may withdraw from the contract upon expiry of a reasonable period of at least two weeks – set by us – if the goods have not been despatched by expiry of the period. Further claims, especially claims for damages, are precluded.
- Delivery obligations may be deferred or suspended completely in the following cases; we shall definitely inform the customer immediately of any delay and, if the delivery obligation is suspended or ceases, payments received shall be refunded immediately.
a. Our delivery obligation is subject to correct and timely delivery on the part of our suppliers, unless we are at fault for the wrong or delayed delivery. Part-deliveries are permissible insofar as the customer can reasonably be expected to accept them.
b. In events of force majeure, we may postpone delivery by the duration of the hindrance and a reasonable start-up time. This also applies if such events occur during an existing delay. Force majeure is deemed to include monetary, trade and other governmental measures, strikes, lock-outs, operational disturbances for which we are not responsible (e.g. fire, shortage of raw materials or energy), transportation obstructions, delays at customs, and all other circumstances for which we are not responsible that make delivery considerably more difficult or impossible. It is irrelevant whether these circumstances occur on our premises or those of a sub-supplier. If the aforementioned events, especially a delay of more than three months in performing the contract in substantial parts, mean either party to the agreement cannot reasonably be expected to perform the contract, this party may completely or partly withdraw from the contract. This may not form the basis of any claims for damages. The seller may rely on the above-mentioned circumstances only if it notifies the customer immediately thereof.
We pack the goods for despatch on pallets. The packing is not intended or suitable for delivery to the end customer or for storage of the goods.
V. Prices and payment
- All prices exclude the applicable statutory rate of VAT.
- In the case of master agreements or supply quotas, we reserve the right to set minimum order quantities. Failure to order the minimum quantity agreed in a single order on call and/or in a single order leads to a minimum order surcharge of 10% being added to the agreed product price.
- Regardless of minimum order quantities, we charge a handling fee of €50.00 per shipment on orders worth less than €750.00 net (sales price of the goods excluding insurance, packing, transport and VAT).
- If goods not destined for the territory of the Federal Republic of Germany are collected by the customer or its representative, the customer shall provide us with the export certificate (entry certificate) required for tax purposes. Otherwise the customer shall pay us an amount corresponding to the respective applicable rate of VAT for domestic supplies in addition to the invoice amount.
- Unless individually agreed otherwise, we supply only upon full payment of the relevant invoice and all other invoices owed by the customer (customer’s advance payment obligation).
- In the case of goods supplied abroad (including to EU states), we may – regardless of the advance payment obligation – make the supply contingent upon the customer’s provision of security for payment (bank guarantee).
- The customer may set off only those claims which are uncontested and have been finally settled.
- Claims are due upon receipt of the invoice, no later than 14 days after delivery of the goods, unless otherwise agreed in an individual contract. It is sufficient if the customer has received the invoice by fax or by email.
VI. Warranty and notice of defects
- On the goods we sell, we provide a warranty of one year after arrival of the goods at the customer’s premises or, in the case of sales shipment, at the place of destination.
- Notice of defects shall be given immediately in writing, but no later than seven days after arrival of the goods at the place of destination. In the case of drop shipments, the period commences upon arrival of the goods at the place of destination. The customer shall, in the case of drop shipments, ensure that it is able to satisfy its obligation to inspect and report defects upon arrival of the goods at the place of destination. Defects which cannot be identified within this period, even with meticulous examination, shall be reported immediately upon discovery, and all further work or processing shall cease at once. The warranty period remains unaffected.
- If the customer accepts the goods in the manner agreed, notice of defects ascertainable using the agreed manner is precluded.
- In the event of a claim for defects under warranty, we will replace or rework at our own discretion. After two unsuccessful attempts at subsequent performance, the customer may withdraw from the contract or reduce the purchase price.
- If the customer does not immediately give us, for reasons attributable to it, the opportunity to convince ourselves of the defect (e.g. by returning samples/parts of the goods) despite being requested to do so, the warranty claims lapse in respect of the defect.
- Responsibility for the application, use and processing of the goods purchased lies exclusively with the customer. Our technical advice, whether given verbally or in writing, is provided only as non-binding information – also in relation to any property rights of third parties – and does not relieve the customer of its own obligation to examine the products for their suitability for the processes and purposes intended. Nevertheless, any liability on the part of the seller is limited to the value of the goods supplied by us.
VII. Exclusion of liability
- Unless otherwise stated in this agreement, including the following provisions, we are liable for breach of contractual and non-contractual obligations under the relevant statutory provisions.
- We are liable for damages – for whatever legal reason – in the cases of intent and gross negligence. With other types of negligence, we are liable only for losses resulting from
a. injuries to life, limb or health,
b. breach of a material contractual obligation (obligation whose fulfilment is of eminent importance for the proper performance of the contract and on whose compliance the contracting party regularly relies and may rely); in this case, liability is, however, limited to the remedy of the foreseeable, typical loss.
- The limitations of liability from subsection 2 do not apply if we fraudulently conceal a defect or give a quality guarantee for the goods. The same applies to a customer’s claims under the German Product Liability Act (Produkthaftungsgesetz).
- The customer may withdraw from, or terminate, the contract due to a breach of obligation which is not a defect only if we are responsible for the breach of obligation. A customer’s free right of termination (especially under sections 651, 649 BGB) is precluded. Otherwise the statutory prerequisites and legal consequences apply.
- In particular with reference to Article 74 of the United Nations Convention on Contracts for the International Sale of Goods, CISG, any liability for damages on the part of our company requires that it be possible to accuse the management or employees of at least slight negligence to the extent no more serious fault is the case under these General Terms and Conditions, a contract or the law.
VIII. Retention of title:
We supply exclusively subject to the following extended and expanded right to retain title:
- Until full settlement of all the seller’s current and future claims arising from a contract of sale and an ongoing business relationship (secured claims), the seller reserves the right vis-à-vis the buyer to retain title to the items sold.
- The goods subject to retention of title (reserved goods) may be neither pledged nor assigned as security to third parties until full settlement of the secured claims. The customer shall immediately notify the seller in writing if and to the extent third parties seize goods belonging to the seller.
- If the customer breaches the contract, for example, by failing to pay the purchase price due, the seller may, under the statutory provisions, withdraw from the contract and/or, based on its right to retain title to the goods, demand they be handed over. This demand does not simultaneously constitute a declaration of withdrawal; instead, the seller may simply demand the handover of the goods and reserve the right to withdraw from the contract. If the customer fails to pay the purchase price, the seller may assert these rights only if the customer had previously been set a reasonable deadline for payment or such deadline is dispensable under the statutory provisions.
- The customer may resell and/or process, combine or mix the reserved goods (entitlements). In this case, the following applies:
a. The retention of title to the goods extends to the products – at their full value – arising from the processing, mixing or combining of our goods, with the seller being deemed as the manufacturer. If, in the processing, mixing or combining with third-party goods, third-party ownership rights remain in existence, the seller acquires joint title in proportion to the accounting value of the processed, mixed or combined goods. Otherwise the same applies to the products arising as for the reserved goods supplied.
b. As security, the customer now, already, assigns to the seller in full or in the amount of any portion of joint title to the claims against the buyer’s customer arising from the sale of the items, as per the foregoing subsection. The seller accepts this assignment of title. The customer’s obligations stipulated in subsection 2 also apply in respect of the assigned claims.
c. The customer may resell, process, mix and combine, and collect the claim as long as it itself is neither overindebted under insolvency law nor insolvent, or threatening to become so. These entitlements and the right of collection definitely end if the customer fails to satisfy its payment obligations to the seller when due, the seller has therefore set the customer a deadline and the customer has not paid the claims owed within the period stipulated.
d. The customer shall disclose to the seller at its request the assigned claims and the debtor thereof (third-party debtor) before delivery to the third-party debtor. At the seller’s request, it shall provide all information necessary for collection, hand over the relevant documents and notify the debtors of the assigned claims.
e. If the realizable value of the securities exceeds the seller’s claims by more than 10%, the seller will, at the customer’s request, release the securities at its own discretion.
IX. Place of jurisdiction, applicable law, arbitration clause
- The place of jurisdiction is Düsseldorf.
- Exclusively German law shall apply. The only sales contracts which are based on this agreement follow the English version of United Nations Convention on Contracts for the International Sale of Goods, CISG dated 11 April 1980.
- Any disputes arising from this agreement shall be settled without recourse to due judicial process by the court of arbitration of the Forum Kleve e.V., Berliner Straße 30, 46446 Emmerich am Rhein under its rules of arbitration procedure (published at www.forum-kleve-ev.de).
X. Final provisions
- Should individual provisions of these Terms and Conditions be invalid or unenforceable, or become invalid or unenforceable after a contract has come into effect, the validity of the contract and the General Terms and Conditions of Sale remain unaffected. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects come closest to the economic objective pursued by the contractual parties with the invalid and unenforceable provision. The foregoing provisions apply by analogy in the event of omissions.
- Amendments and additions to the relevant contract shall be in writing.
Laboratorium Dr. Deppe GmbH, Kempen 24 June 2019