The following General Terms and Conditions of Sale and Delivery shall become part of the contract that we (the Seller) conclude with Entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) (Customers). They also apply to all future business relationships with the customer, even if they are not expressly agreed again. We expressly object to any General Terms and Conditions of Purchase of our customers.
II. Conclusion of the contract and cancellation
- A contract is concluded on receipt by the customer of our written order confirmation. Our offers are an invitation to the customer to submit their own offer, which we accept with the order confirmation.
- In case of doubt, the content of the contract is based on the order confirmation.
- Confirmed prices are generally binding, unless we reserve the right to adjust the prices in the order confirmation.
- We only offer cancellations of a contract in exceptional cases, and then only for a cancellation fee based on the costs incurred by us up to the processing of the customer’s cancellation request. The customer does not have a legal claim to a cancellation offer. We will only inform the customer of the cancellation offer in writing. Cancellation will only become effective on receipt of the cancellation fee within the payment period specified in the notification to the customer, unless the notification offers the possibility of accepting the offer in writing and a payment period extending beyond this.
- Delivery dates or periods are only binding if they are confirmed by us in writing. Insofar as information on delivery times is provided, these are approximate.
- Subject to any other individual agreement, our obligation is to dispatch the duly packaged goods. We always supply EXW, Incoterms 2010, unless we confirm otherwise.
- The time of dispatch from the factory or warehouse is decisive for compliance with delivery periods and delivery dates. On notification of readiness for dispatch, the latter shall be deemed to have been complied with if the goods cannot be dispatched on time through no fault of our own.
- Delivery periods begin on the date of our order confirmation. Delivery periods and delivery dates shall be postponed or extended until our customer has provided such services of its own as are necessary for the execution of the order (e.g. provision of all official certificates, letters of credit and guarantees, payment of down payments, printing and product release declarations, delivery of preliminary products/packaging).
- In the event of delay, the customer may withdraw from the contract after expiry of a reasonable period of at least two weeks, provided that the goods have not been dispatched by the expiry of the deadline. Further claims, in particular claims for damages, are excluded.
- Delivery obligations may be postponed or suspended in the following cases; in all cases, we are obliged to immediately inform the customer of the delay and, in the event of suspension or lapse of the delivery obligation, to immediately reimburse any services received.
- Our delivery obligation is subject to correct and timely delivery to ourselves, unless we are responsible for the incorrect or delayed delivery. Partial deliveries are permissible, provided they are acceptable to the customer.
- In the event of force majeure, we are entitled to delay the delivery for the duration of the hindrance and a reasonable start-up time. This also applies if such events occur during an existing delay. In this context, force majeure shall include currency, trade policy and other sovereign measures, strikes, lockouts, operational disruptions that we are not responsible for (e.g. fire, machine damage, lack of raw materials or energy), disruptions to transport routes, delays in import/customs clearance and all other circumstances which, without being our fault, make delivery significantly more difficult or impossible, regardless of whether these circumstances arise with us or with a contractor. Insofar as the execution of the contract becomes unacceptable to one of the contracting parties due to the aforementioned events, in particular where a delay in the execution of the contract to a substantial extent is postponed by more than 3 months, this party may withdraw from the contract in whole or in part. The customer may not derive claims for damages from this. The seller may only invoke the aforementioned circumstances if they immediately notify the customer.
We pack the goods for shipment on pallets. The packaging is not intended and suitable for deliveries to end customers and similarly not suitable for storage of the goods.
V. Prices and payment
- All prices are exclusive of the applicable statutory VAT.
- In the case of framework agreements or delivery quotas, we stipulate minimum order quantities. A breach of minimum order quantities in the individual call-off or order will result in a surcharge for small quantities of 10% of the agreed product price.
- Regardless of the minimum order quantities, we charge a processing fee of €50.00 per delivery for order values of less than €750.00 net (sale price of goods excluding insurance, packaging, transport and VAT).
- Insofar as goods are collected by the customer or their representative and are not intended for the territory of the Federal Republic of Germany, the customer must provide us with the export certificate required for tax purposes (Confirmation of Arrival). Otherwise, the customer must pay us an amount equal to the value added tax applicable to domestic deliveries plus the invoice amount.
- Unless otherwise agreed on an individual basis, we will only deliver after full payment of the corresponding invoice and all other bills due from the customer (customer’s obligation to pay in advance).
- In the event of delivery abroad (including other EU countries), and regardless of our agreed obligation to pay in advance, we may make the delivery dependent on the provision of a security by the customer for the payment of the purchase price (bank guarantee).
- The customer may only offset claims that are undisputed or have been legally established.
- Outstanding sums are payable on receipt of the invoice, no later than 14 days after delivery of the goods, unless otherwise agreed in an individual contract. Receipt of the invoice by the customer by fax or e-mail is sufficient.
VI. Complaints and warranty
- For goods sold by us, a warranty period of one year shall apply after arrival of the goods at the customer’s premises or, in the case of delivery to a place other than the place of performance, when the goods arrive at their destination.
- Defects must be immediately notified in writing, no later than seven days after the goods have arrived at the destination. In the case of drop shipments, the period begins upon arrival of the goods at the destination. For drop shipments, the customer must ensure that their obligation to inspect the goods and notify any defects can be fulfilled on arrival at the destination. Defects that could not be discovered within this period, even with the most careful examination, must be immediately notified after their discovery, with immediate cessation of any handling and processing. The warranty period remains unaffected by this.
- In the event of agreed acceptance of the goods by the customer, no defects that were detected during the agreed type of acceptance will be entertained.
- In the event of a warranty claim for defects, we shall redeliver or repair at our discretion. In the event of two failed attempts to remedy a defect, the customer may withdraw from the contract or reduce the price under the legal conditions.
- If, despite a request from us and for reasons within the customer’s control, the customer does not give us an immediate opportunity to verify the defect (e.g. by returning samples/parts of the goods), the warranty claims regarding the reported defect shall lapse.
- The application, use and processing of the purchased goods are the sole responsibility of the customer. Our verbal and written application-related advice shall only be considered as a non-binding indication, including with regard to any third-party industrial property rights, and shall not exempt the customer from their own checking of the products for their suitability for the intended processes and purposes. Should the question of the seller’s liability nevertheless be raised, this shall be limited to the value of the goods delivered by us.
- Unless otherwise stipulated in this agreement, including the following provisions, we accept liability in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
- Regardless of the legal grounds, we accept liability for damages in the event of wilful intent and gross negligence. But in the case of other negligence we only accept liability
- for damages arising from injury to life, limb or health,
- for damages arising from the breach of an essential contractual obligation (an obligation, the fulfilment of which is essential for the proper execution of the contract and on which the contractual partner regularly relies and is entitled to rely); in this case, however, liability shall be limited to compensation for foreseeable, typical damage or injury.
- The limits to liability in Paragraph 2 shall not apply if we have fraudulently concealed a defect or have furnished a guarantee for the quality of the goods. The same shall apply to the customer’s claims under the German Product Liability Act.
- In the case of a breach of duty that does not consist of a defect, the customer may only withdraw or terminate if we are responsible for the breach of duty. The customer’s right to terminate the contract free of charge (in particular in accordance with Sections 651 and 649 of the German Civil Code (BGB)) is excluded. Otherwise, the statutory requirements 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 of our company for damages shall require that the management or employees can be accused of at least slight negligence, unless a higher standard of fault applies under these General Terms and Conditions, the contract or legislation.
VIII. Retention of title:
We deliver exclusively subject to the following extended and expanded retention of title:
- Until all current and future claims of the Seller arising from the purchase agreement and an ongoing business relationship (secured claims) vis-à-vis the Buyer have been paid in full, the Seller retains ownership of the items sold.
- The goods subject to retention of title may not be pledged to third parties or transferred as security before the secured claims have been paid in full. The Customer must immediately inform the Seller in writing if and to the extent that third parties have seized the items belonging to the Seller.
- If the Customer breaches the contract, in particular if the purchase price is not paid, the Seller is entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of retention of title. A claim for return of goods request for surrender does not automatically involve a declaration of withdrawal; instead, the Seller is entitled to request the return of the goods only, while reserving the right to withdraw. If the customer does not pay the purchase price, the Seller may only assert these rights if the customer has previously been given a reasonable period of time to pay, but this has not been done, or if such a period of time is not necessary under the statutory provisions.
- The customer is entitled to resell and/or process, combine or mix the goods subject to retention of title (entitlements). In this case, the following shall apply:
- The retention of title extends to the products resulting from the processing, mixing or combining of our goods at their full value, whereby the Seller is considered the manufacturer. In the case of processing, mixing or combining with goods of third parties, if the retention of title is maintained, the Seller shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In other respects, the resulting product shall be treated in the same way as the goods delivered subject to retention of title.
- The customer hereby assigns to the Seller as a security the outstanding claims arising from the sale of the items vis-à-vis the purchaser’s customer, in total or in the amount of any possible co-ownership share in accordance with the preceding paragraph. The Seller accepts the assignment. The obligations of the customer referred to in Paragraph 2 also apply in consideration of the assigned claims.
- The customer is authorised to resell, process, combine and mix the product and to collect the outstanding claim as long as they are neither overindebted under insolvency law nor insolvent or likely to become so. The entitlements and the right to collect shall end in any case if the customer has failed to fulfil their payment obligations to the Seller when due, the Seller has subsequently set the customer a payment deadline and the customer has not paid the outstanding amounts in full within the deadline.
- On request, the customer must inform the Seller of the assigned claims and their debtors (third-party debtors) before delivery to the third-party debtor. At the Seller’s request, they must provide all the information required for collection, hand over the associated documents and inform the debtors of the assignment.
- If the realisable value of the securities exceeds the Seller’s claims by more than 10%, the Seller shall, at the Customer’s request, release securities at the Seller’s discretion.
IX. Jurisdiction, applicable law, arbitration clause
- The place of jurisdiction is Düsseldorf, Germany.
- German law shall apply exclusively. The individual sales contracts based on this agreement shall be governed by the United Nations Convention on Contracts for the International Sale of Goods, CISG of 11 April 1980 in the English version.
- All disputes arising from this contract are to be resolved without recourse to the ordinary courts of law by the Arbitration Tribunal of Forum Kleve e.V., Berliner Strasse 30, 46446 Emmerich am Rhein, Germany in accordance with its Arbitration Rules (published at www.forum-kleve-ev.de).
X. Final provisions
- Should individual provisions of these terms and conditions be ineffective or unenforceable or become so after conclusion of the contract, the validity of the contract and the remaining terms and conditions shall remain unaffected. The ineffective or unenforceable provision shall be replaced by a valid and enforceable provision whose effects most closely approximate the economic objective pursued by the contracting parties with the ineffective or unenforceable provision. The above provisions shall apply in similar fashion in the event that the provisions prove to be incomplete.
- Amendments or additions to the respective contract must be made in writing.
Laboratorium Dr. Deppe GmbH, Kempen 2.11.2020