Terms and conditions of sale and delivery
Terms and Conditions of Sale and Delivery of BT Nyloplast GmbH
I. Scope of application, deviating terms and conditions of purchase, future transactions, overriding agreements
1. These Terms and Conditions of Sale and Delivery (hereinafter referred to as "Terms and Condi-tions") apply to all contracts concluded by us with our customers (hereinafter referred to as "Buyer") for our deliveries and other services, including our underlying offers and notices of ac-ceptance. They apply exclusively. Any terms and conditions of the Buyer which are contrary to or deviate from these Terms and Conditions shall not be recognised unless we have expressly agreed to them in the individual case.
2. These Terms and Conditions only apply to businesses as defined in Section 14 BGB [German Civil Code]. They also apply to all future transactions within the scope of current business rela-tions, even if these do not expressly refer to the Terms and Conditions.
3. Individual agreements with the Buyer (including individual supplementary agreements, additions and amendments) and deviating details in our offers or declarations of acceptance shall take precedence over these Terms and Conditions.
II. Written or text form, offers, conclusion of contract, rights in documents etc.
1. All offers and notices of acceptance, amendments, other supplementary agreements and agree-ments made before or at the time of contract conclusion must be made in writing or in text form (hereinafter "in writing") in order to be legally effective. This also applies to the issue of quality guarantees.
2. Our offers are subject to change without notice unless they are expressly designated or agreed as binding. The Buyer is bound to their offer for two weeks. A valid contract shall only be con-cluded upon written confirmation of the order received by us, at the latest, however - insofar as this deviates from the provision in Section II. 1 - upon acceptance of the delivery by the Buyer.
3. We reserve the property rights and copyrights to illustrations, drawings, calculations, tools, drafts and other documents; they may not be made accessible to third parties, even in part. This applies in particular to documents which are designated as "confidential"; the Buyer requires our express written consent before passing them on to third parties.
III. Prices, price changes
1. Unless otherwise agreed, our prices are quoted in euro EXW BT Nyloplast Aichach (Incoterms 2020). Packaging, transport and protection material are charged separately. Statutory value added tax is not included in our prices and will be charged additionally.
2. If the agreed delivery takes place more than four weeks after contract conclusion, we are entitled, in the absence of a fixed price agreement, to adjust our prices appropriately in accordance with changes in wages, salaries, taxes as well as material and production costs that have occurred in the meantime.
IV. Delivery, delivery deadlines, delay in delivery, force majeure, partial deliveries
1. The delivery dates and delivery periods stated in our order confirmations are not binding, unless otherwise agreed. Delivery periods begin on contract conclusion unless the Buyer is obliged to make advance payments. In this case, the delivery period shall commence upon receipt by us of the performance to be rendered by the Buyer. Furthermore, delivery periods shall not commence until all the prerequisites for the performance of the contract have been met, in particular once all the details of performance have been clarified. Punctual delivery presupposes that the Buyer complies with the agreed terms of payment.
2. In the event of non-delivery or untimely delivery by our suppliers, we shall not be in default vis-à-vis the Buyer unless we are responsible for the non-delivery or untimely delivery by our suppliers. We shall be entitled to withdraw from the contract if, despite having concluded a matching trans-action for supply, our supplier does not supply us with the ordered goods due to reasons beyond our control. Possible legal rights of withdrawal remain unaffected by this.
3. If we are in default of delivery, the Buyer is entitled to demand compensation for the damage caused by the delay in addition to delivery if we are guilty of intent or gross negligence. In the event of slight negligence, our liability is limited to foreseeable damages typical for this type of contract, however, to a maximum of 10% of the value of the goods to be supplied in the delayed delivery.
4. Force majeure or other unforeseeable events, e.g. riots, lawful labour disputes or strikes, epidem-ics/pandemics, natural disasters, import/export bans, official measures, etc., which temporarily prevent us, through no fault of our own or attributable to us, from delivering the object of purchase on the bindingly or non-bindingly agreed date or within the agreed period, shall extend these dates and periods - even during the period of default - by the duration of the disruptions in performance caused by these circumstances. If, as a result of these circumstances, delivery becomes impos-sible or unreasonable in whole or in part, we shall be released from our obligation to deliver or entitled to withdraw from the contract. If a corresponding disruption leads to a delay in perfor-mance of more than four months, both contracting parties may withdraw from the contract. Pos-sible legal rights of withdrawal remain unaffected by this.
5. Partial deliveries and their invoicing are permitted to an extent reasonable for the Buyer.
V. Shipping and transfer of risk, insurance, packaging
1. Unless otherwise agreed, delivery shall be made for the account and at the risk of the Buyer EXW BT Nyloplast Aichach (Incoterms 2020), even in the case of carriage paid delivery. The risk of deterioration of the goods as well as their accidental loss shall pass to the Buyer as soon as the goods are handed over to the person carrying out the transport or as soon as they have left our factory for the purpose of shipment. If the Buyer does not accept the goods in due time, although they were offered to same, risk shall pass to the Buyer upon notification of readiness for dispatch. The goods shall only be insured at the express instruction of the Buyer and at their expense.
2. Insofar as we are obliged to take back transport packaging, this shall be performed by means of the Buyer sending the packaging to us at the expense of the Buyer.
VI. Payment, payment default, deterioration of assets, set-off, right of retention, assignment
1. Unless otherwise stated or agreed, the purchase price is due upon delivery of the object of pur-chase and is payable within 30 days after delivery and invoicing. If payment is not made within the specified period, the Buyer is in default. Unless expressly agreed otherwise, our representa-tives are not entitled to accept payments.
2. During the payment default, we are entitled to charge the statutory interest rate of 9 percentage points above the respective base interest rate as well as the statutory lump sum for default of EUR 40.00. We reserve the right to assert higher damages caused by delay.
3. If, after contract conclusion, it becomes apparent that our claim to payment is at risk due to the Buyer's lack of ability to pay, we may refuse to perform our obligations until the Buyer has effected payment or provided collateral for it. We are entitled to determine a reasonable period of time within which the Buyer must, at their discretion, either make payment or provide collateral con-currently with the performance. After expiry of the deadline, we shall be entitled to withdraw from the contract and / or, if the legal requirements are met, to claim damages or reimbursement of expenses.
4. A set-off by the Buyer is only permissible with undisputed claims that are ready for decision or legally established. The Buyer can only assert a right of retention if it is based on undisputed claims from the same contractual relationship that are ready for decision or that have been legally established.
5. The assignment of claims against us is excluded. Section 354 a HGB [German Commercial Code] remains unaffected.
VII. Reservation of title
1. The delivered goods shall remain our property until full payment of all claims arising from the contract and other claims which we subsequently acquire against the Buyer in direct connection with the delivered goods - irrespective of the legal grounds. Furthermore, the goods shall remain our property as reserved goods until all other claims which we acquire against the Buyer - irre-spective of the legal grounds - now or in the future (including all current account balance claims) have been settled. In the case of a current account, the reserved goods serve as security for our balance claims.
2. Insofar as the validity of this reservation of title is linked to special requirements or formal regula-tions in the country of the Buyer, the Buyer is obliged to ensure that these are performed at their own expense.
3. The Buyer is entitled to process and resell the reserved goods in the ordinary course of business. The right of processing and resale does not exist if the Buyer is in default of payment or if their payments are permanently suspended. In order to secure all open claims, the Buyer hereby as-signs to us their claim against their customer arising from the resale. We accept this assignment. As long as we are the owner of the reserved goods, we are entitled to revoke the authorisation to process and resell the goods if there is an objectively justified reason.
4. The Buyer is revocably authorised to collect the assigned claim. We may revoke the collection authorisation if there is an objectively justified reason. Our authority to collect the claims ourselves remains unaffected by this, but we undertake not to collect the claims as long as the Buyer duly meets their payment obligations.
5. If the Buyer does not properly fulfil their payment obligations and we are therefore authorised to collect the claims ourselves, the Buyer is obliged to inform us on request of the assigned claims and their debtors, to provide all information necessary for collection and to hand over the relevant documents. The Buyer is obliged to do so on request and we are entitled to notify the debtors of the assignment of claims.
6. If the reserved goods are processed, combined or mixed with other goods not owned by us, we shall be entitled to ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods at the time of processing, combining or mixing. Any processing, combining or mixing in the ordinary course of business shall be deemed to have been carried out on our behalf. If the goods subject to retention of title are sold together with other goods after processing, combining or mixing, the assignment of the claim from the resale shall only apply up to the amount of the ratio of the invoice value to the invoice value of the goods also sold. In the event of the sale of goods in which we have a co-ownership share, the claim is as-signed to us in the amount of the co-ownership share. We offer the Buyer already at this stage the granting of an expectant right in the co-ownership shares that come into existence. The Buyer accepts this offer. Co-ownership is transferred to the Buyer upon settlement of all claims to which we are entitled.
7. As long as the reservation of title exists, pledging, transfer by way of security, leasing or any other transfer or modification of the reserved goods that impairs our security shall only be permitted with our prior consent. This does not affect the right of the Buyer to resell the reserved goods in the ordinary course of business under the above-mentioned conditions. The Buyer must mark the reserved goods as our property and, in the event of the assignment of their entire warehouse as security, must inform third parties of our reservation of title and exclude the reserved goods from the assignment by way of security by means of an express declaration.
8. In the event of enforcement measures or any other impairment of the reserved goods by third parties, the Buyer must notify us immediately in writing, provide all information and documents required to safeguard our rights and inform the third party immediately of our reservation of title.
9. The Buyer must treat the reserved goods with care. The Buyer is obliged to insure the reserved goods at their own expense against fire and other property damage and against theft at replace-ment value and to maintain the insurance cover. The Buyer hereby assigns to us any claims they may have against their insurance company in the event of damage or loss, insofar as they relate to our ownership or co-ownership; we accept this assignment.
10. If the Buyer permanently suspends their payments, if the Buyer applies for the institution of insol-vency proceedings over their assets or if insolvency proceedings are instituted over their assets, the Buyer is obliged to surrender the reserved goods still in our ownership at our request. Fur-thermore, we are entitled to demand the return of the reserved goods from the Buyer in the event of the Buyer acting in breach of contract, in particular in the event of default in payment. If we take back the reserved goods, this shall only constitute a withdrawal from the contract if this is ex-pressly declared in writing. We shall be entitled to set the Buyer a reasonable deadline in writing for the fulfilment of their obligations and to threaten that if the Buyer fails to fulfil their obligations within the deadline, acceptance of the performance will be refused and the collateralised reserved goods will be disposed of by offsetting the payment received against the purchase price. If the obligations are not met, we are entitled to freely dispose of the reserved goods. In this case, the Buyer shall bear the costs of recovery.
11. At the request of the Buyer, we are obliged to waive the reservation of title or to release collateral from transfers of ownership by way of security and assignments of future claims, at our discretion, if the Buyer has satisfied all the claims in connection with the reserved goods or if the realisable value of all the collateral granted to us from the reservation of title, transfer of ownership by way of security and assignments of future claims exceeds the total amount of claims against the Buyer by more than 10%.
VIII. Conformity of the goods, insignificant defects, excess or short delivery
1. Deviations in quality, thickness, dimensions and colour which are customary in the trade and which are unavoidable due to the raw material situation or for technical reasons shall not give rise to an entitlement to make complaints about the delivery. The Buyer may not refuse to accept delivered goods due to minor defects. We shall be free to deliver up to 5% more or less in quantity, provided this is reasonable for the Buyer, taking into account our interests; the deviation shall be taken into account in the purchase price.
2. Unless otherwise agreed, we do not guarantee that the goods delivered by us are suitable for the respective purpose.
IX. Notification of defects, liability for defects
1. The Buyer is obliged to inspect the delivered goods immediately after delivery and to notify us in writing of obvious defects immediately, but no later than ten days after delivery of the goods. Non-obvious defects must also be reported in writing without delay, but no later than ten days after discovery.
2. If defects are notified in accordance with Section IX. 1 within the period stipulated, we shall be entitled to choose between delivery of a defect-free item or elimination of the defect free of charge (subsequent performance). We shall bear the expenses necessary for subsequent performance. This shall not apply to expenses incurred because the purchased item was moved to a location other than the agreed location after delivery, unless such movement is in accordance with the intended use of the item.
3. If the supplementary performance according to item IX. 2 fails, the Buyer can choose to demand a reduction of the purchase price or to withdraw from the purchase contract.
4. Any parts replaced within the scope of a subsequent performance carried out by us shall become our property.
5. With the exception of claims for damages due to defects, claims for defects become time-barred twelve months after delivery of the goods. This shall not apply to goods which are used for a building structure in accordance with their normal use. In this respect the statutory period of limi-tation applies.
6. The Buyer is only entitled to claims for damages due to defects insofar as our liability is not ex-cluded in accordance with Section X. of these Terms and Conditions. Further claims or claims other than those provided for in this Section IX. due to a defect are excluded.
7. The provisions of this Section IX. do not affect claims for defects which we have fraudulently concealed or which are covered by a guarantee of quality or durability.
X. Liability, prescription
1. We shall be liable without limitation for any damage in the event of intent or gross negligence. In the event of a slightly negligent breach of a principal obligation or an accessory obligation, the breach of which endangers the achievement of the purpose of the contract or the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the Buyer could rely (hereinafter "essential accessory obligation"), our liability shall be limited to the damages foreseeable at the time of contract conclusion and typical for this type of contract.
2. We shall not be liable for slightly negligent breaches of accessory obligations which are not es-sential accessory obligations.
3. This shall not affect the rights of the Buyer in the event of fraudulent concealment of defects or the assumption of a guarantee of quality and the liability for claims based on the Product Liability Act and for damages due to injury to life, body and health. This provision does not imply a change in the burden of proof to the detriment of the Buyer.
4. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our legal representatives, employees, workers, staff and vicarious agents.
5. With the exception of claims in tort, the Buyer's claims for damages, for which our liability is limited in accordance with this Section X, shall prescribe after one year calculated from the statutory commencement of the prescription period.
XI. Place of performance, place of jurisdiction, applicable law, partial invalidity
1. The place of performance is Aichach, if the Buyer is a merchant.
2. The exclusive place of jurisdiction for both parties to the contract is our place of business, provided that the Buyer is a merchant or legal entity under public law or a special fund under public law. This shall also apply if the Buyer has no general place of jurisdiction in Germany or if the Buyer relocates their place of residence or habitual abode to a place outside the Federal Republic of Germany after conclusion of the contract or if their place of residence or habitual abode is not known at the time when legal action is taken. However, we are also entitled to sue the Buyer at any other legal place of jurisdiction. Legal regulations concerning exclusive competences remain unaffected.
3. The law of the Federal Republic of Germany shall apply, excluding the provisions of the UN Con-vention on Contracts for the International Sale of Goods (CISG).
4. Should individual provisions of these Terms and Conditions be or become invalid, this shall have no effect on the remaining provisions. In this case, the statutory provisions shall apply in addition.
As of: June 2020