Terms & Conditions
Terms of sale and delivery
§ 1 General – applicability
(1) These general business conditions apply in particular to contracts for the sale of movable goods, regardless of whether these were made by us or purchased from sub-contractors. The relevant text shall also be applicable as a general agreement for future contracts for the sale of movable goods to the same purchaser as before. without renewed reference thereto
(2) Terms other than those stated below shall not be binding on us unless agreed in writing. This also applies if the written form is not imposed as a condition when the contract is concluded. These conditions of sale and delivery also apply if we deliver goods without reservation to the ordering party although we are aware of terms contradicting or departing from these conditions of sale and delivery.
(3) These conditions only apply to businesses as defined in §§ 310 Par. 1, 14 BGB (German Civil Code).
(4) These terms of sale and delivery exist in German and several other languages. Where ambiguities or contradictions are identified between the different versions, the German version will be the only legally binding version; translations are provided for information only. For this reason, any binding contract will be in German only.
§ 2 Offer – offer documents
(1) Our offers, cost estimates and the information supplied in our catalogues are not binding upon us unless this is expressly stated. By placing an order with us for goods, purchasers are offering to enter into a binding contract. Unless the order specifies otherwise, we are entitled to accept this offer or a binding contract within two weeks of its receipt. The acceptance of this offer can be confirmed in writing (e.g. by letter or fax), or by delivery of goods to the purchaser, or – where purchasers have provided their email addresses – by email. Purchasers must provide the following information: form of address, first and surnames, address, delivery or collection address, telephone number, email address, mode of payment, bank details, VT ID, drawings, order and delivery date.
(2) Titles and copyrights to illustrations, drawings, calculations and other documents are reserved. This applies in particular to written documents designated “confidential”, which are not to be passed on to third parties by the ordering party without our express written permission.
§3 Prices – terms of payment
(1) Unless stated otherwise in the order confirmation, our prices are “ex works”. We reserve the right to modify our prices to a reasonable extent if and insofar as cost increases or reductions occur after conclusion of the contract, in particular on account of negotiated labour agreements (in the sense of the German legal term „Tarifabschlüsse“) or changes to the prices of materials that directly affect our own production costs, and of which evidence will be supplied to the ordering party on demand.
(2) Our prices do not include statutory value added tax, which is charged at the official rate applicable on the day of invoicing and shown as a separate item on the invoice.
(3) No deductions from the invoice amount are permitted without our express written agreement.
(4) Unless otherwise stated in the order confirmation, the purchase price is payable immediately without deduction on the invoice date.
(5) The ordering party is not entitled to offset counter-claims against payments unless they are uncontested or have been finally established and are non-appealable (in the sense of the German legal term „rechtskräftig festgestellt“). The ordering party is only entitled to withhold due payment if its counter-claim derives from the same contractual relationship.
(6) If the ordering party is in default of payment, we shall be entitled to withhold outstanding deliveries unless payment in advance is received or sureties (in the sense of the German legal term „Sicherheiten“) are provided. Should the ordering party’s creditworthiness deteriorate significantly after the contract has been concluded, we shall be entitled to withdraw from the contract (in the sense of the German legal term „zurücktreten“) if the ordering party is not prepared to render payment on a delivery versus payment basis or to provide a surety. Where contracts cover the manufacture of non-fungible goods, custom-made items) we shall be entitled to withdraw from the contract with immediate effect. Legal requirements relating to the dispensability of setting a deadline shall remain unaffected.
§ 4 Delivery period – infringement of ordering party’s liabilities
(1) Regardless of any statements we may make concerning production times or receipt of materials, delivery dates are binding only if expressly agreed in writing.
(2) Compliance with our delivery commitment also presupposes that the ordering party has fulfilled its obligations correctly and in good time. The right to plead non-fulfilment of the contract (in the sense of the German legal term „Einrede des nicht erfüllten Vertrags“) is reserved. We are entitled to make part-deliveries.
(3) If the ordering party fails to accept delivery at the appointed time (in the sense of the German legal term „Annahmeverzug“) or culpably infringes other liabilities to cooperate, we shall be entitled to demand reimbursement of such damages as we have incurred, including any additional expenditure. The right to assert further claims is reserved.
(4) Insofar as the conditions stated in Par. (3) hereof apply, the risk of accidental loss or deterioration of the purchased article is transferred to the ordering party at such time as it has failed to accept delivery or to make payment in good time (in the sense of the German legal term „Annahmeverzug oder Schuldnerverzug“).
§ 5 Transfer of risk – packaging material
(1) Unless otherwise stated in the order confirmation, delivery “ex works” is agreed, so that the risk of accidental loss and deterioration of the goods passes in all cases to the ordering party when we make the goods available for collection or dispatch them.
(2) In exceptional cases, and where agreed with the purchaser, ordered items will be delivered to an alternative address other than that specified according to § 5 (1). In such cases, the price risk (“Preisgefahr”) is transferred to the purchaser with immediate effect when goods are handed over to the forwarding agent, freight agent or other agent or organization commissioned with delivery (“Schickschuld”).
(3) Unless otherwise agreed, we will cover the costs of packaging. The cost of transport and/or dispatch, where applicable, will be covered by the purchaser unless otherwise agreed.
(4) Packaging for transport and other purposes as laid down by the Verpackungsordnung
(German packaging ordinance) can be returned in accordance with agreements to INTERSEROH Aktiengesellschaft zur Verwertung von Sekundärrohstoffen, Stollwerckstrasse 9a, 51149 Cologne, Germany.
§ 6 Liability for defects
(1) The limitation period for statutory defect claims (in the sense of the German legal term „gesetzliche Gewährleistungsansprüche“) is one year. This reduced limitation period does not apply if longer periods are laid down by law in accordance with § 479 BGB (recourse claims) or in cases of obligatory liability as stated in § 7 (2). The claim to recourse of the purchaser according to § 478 BGB is excluded if the ordering party’s agreement with its customer states a period for defect claims that goes beyond the legal requirement.
(2) § 377 HGB (Federal German Commercial Code) shall apply provided that defect claims are in all cases submitted to us in writing and describe the defects precisely. Our liability (in the sense of the German legal term „Gewährleistung“) shall initially be limited to either rectifying or replacing the defective goods at our discretion. Items that are replaced become our property. Only if rectification or replacement delivery has proved ineffective after a reasonable period or if we deny unjustified the rectification and replacement delivery shall the ordering party be entitled at its discretion to ask for a discount (in the sense of the German legal term „mindern“) or to withdraw from the contract (in the sense of the German legal term „zurücktreten“). At our request the ordering party is obliged to state within a reasonable period whether it wishes to withdraw from the contract.
(3) The limitation period is suspended (in the sense of the German legal term „gehemmt“) for the period needed for the supplementary performance (in the sense of the German legal term „Nacherfüllung“) and does not start again from the beginning.
(4) The purchaser’s entitlement to compensation and/or reimbursement for expenses incurred to no avail is defined in § 7. No additional entitlements apply.
§ 7 Overall liability
(1) All claims by the ordering party against us regarding payment of damages and/or reimbursement of costs (hereinafter referred to as “damage claims”) for any legal reason whatsoever, including infringement of obligations in connection with the contract, culpa in contrahendo, other infringements of obligations or claims in tort (in the sense of the German legal term „deliktische Ansprüche“), are excluded.
(2) Exclusion of liability as stated in § 7 (1) shall however not apply if the damage claim is based on a deliberate (in the sense of the German legal term „vorsätzlich“) or grossly negligent (in the sense of the German legal term „grob fahrlässig“) action on our part or on the part of one of our representatives, employees or other vicarious agents (in the sense of the German legal term „Erfüllungsgehilfe“), if the damage claim is based on a culpably (in the sense of the German legal term „schuldhaft“) caused damage to life, body or health by us, one of our representatives, employees or other vicarious agents, or in connection with a mandatory legal liability specifically according to German Produkthaftungsgesetz (Federal German product liability legislation), in the event we have infringed a guarantee promise (in the sense of the German legal term „Garantiezusage“) or if we, one of our representatives, employees or other vicarious agents negligently (in the sense of the German legal term „fahrlässig“) breach a material contractual obligation (in the sense of the German legal term „wesentliche Vertragspflicht“). In this last case our liability shall nevertheless be limited to the value of the damage that is typically foreseeable. Insofar as our liability is not excluded according to § 7 (2) statutory provisions concerning the liability sum shall apply in all other cases.
(3) To the extent that our damage liability is excluded or restricted, this shall also apply to the personal damage liability of our representatives, employees or vicarious agents.
(4) The above provisions do not imply any change in the burden of proof to the detriment of the ordering party, nor are any claims excluded that are expressly granted in these Terms and Conditions of sale and delivery.
(5) Where a breach of duty is not constituted by a defect but is our responsibility, the purchaser has the right to withdraw from or terminate the contract.
§ 8 Retention of title
(1) The purchased article remains our property (in the sense of the German legal term „Eigentum“) (hereinafter: retained-title goods) until all our existing claims arising now or in the future against the ordering party for any legal reason have been completely settled. The ordering party must as a subsidiary obligation to the contract keep safe (in the sense of the German legal term „verwahren“) the articles that are entirely or partly our property at its own expense. The ordering party is not entitled to move the retained-title goods across a national border without our express written permission.
(2) The ordering party is entitled to sell retained-title goods in the course of regular business activities against cash payment or subject to retention of the title. In no case does this entitlement remain valid if the ordering party is in default of payment (in the sense of the German legal term „Zahlungsverzug“). Pledging (in the sense of the German legal term „Verpfändung“) or cession by security (in the sense of the German legal term „Sicherungsübereignung“) are not permitted. The ordering party assigns to us herewith in advance and in full all receivables and subsidiary claims from resale or for any other legal reason (insurance, tortious act). At our request the ordering party must notify us without delay in writing of the purchaser if goods that are entirely or partly our property have been sold or where they are situated, and which claims it is entitled to make as a consequence of resale or for any other legal reason (e.g. compensation for physical damage to the goods), and also to supply us with officially authenticated certificates (in the sense of the German legal term „öffentlich beglaubigte Urkunden“) on the assignment of claims.
(3) Subject to revocation at any time we authorise the ordering party to recover claims assigned to us in its own name and for its own account. Should the ordering party assert the claim, it undertakes to keep the relevant receivables separate from all the ordering party’s or third parties’ monies or assets. This does not affect our entitlement to establish the claim ourselves, but we shall not do so for as long as the ordering party complies with its financial commitments in good time and insolvency proceedings are not initiated with regard to the ordering party’s assets.
(4) The ordering party is only entitled to process or modify retained-title goods if our written permission has been given. Any processing or modification work carried out by the ordering party on retained-title goods must take place in all cases in our name and for our account as the manufacturer, so that we become owners of the goods thus produced. If the retained-title goods are processed together with other objects that are not owned by us, or if the value of the processed goods exceeds the value of the retained-title goods, we acquire a joint title of the new goods in accordance with the ratio of the value of the retained-title goods to the value of the new goods. In the event that we do not acquire effectively such a title, the ordering party agrees in advance to assign its future title or joint title in the new goods to us as surety. The joint title shall correspond to the ratio as defined in sentence 3 hereof.
(5) If retained-title goods are combined with other goods that are not our property or mixed with them in a manner such that they cannot be separated and the ordering party’s or third party’s goods are to be regarded as a significant element in the resulting goods, the ordering party must assign joint ownership to us in the ratio stated in § 8 (4) sentence 3.
(6) Following withdrawal (in the sense of the German legal term „Rücktritt“) from the contract we shall be entitled without restriction to recover the retained-title goods partly or in full, to sell them or to proceed otherwise with them. The ordering party undertakes to release these goods. Until such time as the title to the retained-title goods passes to the ordering party, it must hold them in trust (in the sense of the German legal term „treuhänderisch“) for us and ensure that they are correctly stored, protected and insured.
(7) If third parties claim access to the retained-title goods, in particular by distraint, seizure, possession or other methods, the ordering party undertakes to draw attention to our title and to notify us without delay so that we are placed in a position to exercise our rights of ownership. If the ordering party does not comply with this demand, it shall be liable for all damage caused.
(8) If the above provisions on retention of title proves to be partly or entirely ineffective according to law in the country in which the goods are situated, a surety is to be provided which corresponds to a retained title (in the sense of the German legal term „Eigentumsvorbehalt“) in this area. If it is necessary that the ordering party cooperates in establishing such rights and/or retention of title, it must take all steps necessary to establish and maintain them.
§ 9 Legal venue – place of fulfilment – choice of law
(1) If the ordering party is a merchant, legal person under public law, an organization responsible for a special fund under public law in the sense understood by Federal German commercial code, the place of fulfilment and legal venue (in the sense of the German legal term „örtlicher Gerichtsstand“) for any disputes arising directly or indirectly from the contractual relationship is the place at which our company has its registered offices, unless another sole legal venue is laid down compulsorily by law. We are however also entitled to take legal proceedings at the place where the ordering party has its registered offices. The district court is agreed as the competent court.
(2) The material laws of the Federal Republic of Germany excluding the conflict of international and supranational contract regulations and/or legal systems shall apply to all legal proceedings between us and the ordering party.
Stand May 2018