GENERAL TERMS AND CONDITIONS OF EUROGLAS VERPACKUNGSGESELLSCHAFT M.B.H., AM RIEDERLOH 26, 87656 GERMARINGEN (HEREINAFTER: SUPPLIER)
1. SCOPE OF APPLICATION
1.1. These Terms and Conditions of Delivery are part of all contracts between the Supplier and the Buyer unless otherwise expressly agreed in writing.
1.2. The incorporation of the Terms and Conditions of Delivery can be contradicted within 1 week after receipt. This contradiction must be carried out in writing. The effective date for the contradiction is the receipt of the same by the Supplier.
2. CONCLUSION OF CONTRACT
2.1. An order shall only be considered accepted inasmuch as it has been confirmed in writing by the Supplier.
2.2. The type and scope of services shall arise exclusively from the order confirmation.
2.3 Additional agreements and changes must be agreed upon in writing.
3. Price and Payment
3.1. Prices shall apply ex works. This includes loading at the works. The prices are net subject to change.
3.2. Packaging and transport costs are calculated separately.
3.3. Payments must be made without deductions free of bank charges to the Supplier. In case of payment default, the Supplier is authorised to demand default interest to the sum of 2% on top of the Deutsche Bundesbank bank rate from the Buyer unless the Buyer is able to verify the damages as having been less. The assertion of other and higher default damages shall remain reserved.
3.4. Only undisputed claims or claims determined as legally binding, mutual and due and which are of the same nature can be offset against the other partner through a written declaration.
4. DELIVERY TIME
4.1. The delivery time shall begin on the date agreed upon and documented in the order confirmation, but not prior to the provision of any official approvals or documents which may have to be obtained by the Buyer.
4.2. Deliveries are permitted up to 4 weeks prior to the agreed delivery date.
4.3. The delivery period shall be extended accordingly in case of industrial disputes (in particular strikes and lockouts) or in case of the occurrence of unforeseen obstructions which cannot be influenced by the Supplier, should completion or delivery be thus verifiably delayed. The same shall apply in case of sub-supplier delays.
4.4. If the delivery is delayed on request of the Buyer, then the verified storage costs shall be charged to the Buyer subject to special agreements, but at least 9% of the invoice sum per month. The same shall apply in case of arranged self-collection. The Supplier is authorised to set the Buyer a deadline for acceptance of the delivery or for self-collection, and to withdraw from the contract subsequent to a notice of refusal. The Supplier is authorised to demand any resulting damages from the Buyer.
5. DISPATCH, PACKAGING
5.1. The goods are packaged as is customary in the trade. The Buyer is obligated to return pallets and layer pads within 90 days after receipt of the delivery. Should the Buyer fail to comply with this obligation, the Supplier shall be authorised to invoice – even without a reminder – the costs of new pallets and layer pads.
6. TRANSFER OF RISK, ACCEPTANCE
6.1. The risk shall be transferred to the Buyer on dispatch of the subject of delivery or on shipping of the initial partial delivery. This also applies if the Supplier has accepted further services such as delivery or set-up.
6.2. Should shipping be delayed due to circumstances for which the Buyer is responsible, then the risk shall be transferred to the Buyer from the notification of readiness for shipping.
6.3. Delivered goods must be accepted irrespective of the Buyer’s warranty claims (Clauses 9 – 11).
7. RETENTION OF TITLE, ASSIGNMENT OF CLAIM
7.1. The Supplier reserves the ownership of the subject of delivery until receipt of all payments from the business transaction with the Buyer. The retention of title also extends to the acknowledged account balance should claims be booked against the Buyer in current accounts.
7.2. Taking-back the subject of delivery shall not constitute a withdrawal from the contract unless the conditions laid down in the German Instalment Act apply, or unless the Supplier has declared this to be the case expressly in writing. The seizure of the subject of delivery always constitutes a withdrawal from the contract. The Buyer shall notify the Supplier without delay in case of seizure or other interventions by third parties. If the costs cannot be collected in any other way, the Buyer shall be held liable for any losses incurred by the Supplier.
7.3. The Buyer is authorised to sell the subject of delivery in a proper business transaction; however, they shall assign to the Supplier as of now any claims to the sum of the invoice final sum including the value added tax which arise from resale against their customer or against third parties, and this independent of whether the subject of delivery has been sold on with or without being further processed. The Buyer shall remain authorised to collect on this claim even after assignment. The authorisation of the Supplier to collect on the claims themselves shall remain unaffected; however the Supplier obligates themselves not to collect on the claim as long as the Buyer complies properly with their payment obligations and does not default on payments.
If the Buyer does not comply with their payment obligations properly or if they default on payments, the Supplier can demand that the Buyer states to them the assigned claims and the name of their debtor, provides all information required for collection of the claim, hands over the associated documentation and notifies the debtor or third parties of the assignment.
7.4. The processing or alteration of the subject of delivery through the Buyer shall always be undertaken for the Supplier. If the subject of delivery is processed with other objects not belonging to the Supplier, then the Supplier shall thus procure co-ownership of the new object to the proportion of the value of the subject of delivery to the other processed objects at the time of processing. For the object resulting through processing, the same applies as for the reserved goods.
7.5. The Supplier shall obligate themselves to release the securities to which they are entitled on request by the Buyer inasmuch as their value exceeds the value of the claims to be secured, if these have not already been settled, by more than 20%.
7.6. An assignment of the Buyer’s claims against Acquirers (Clauses 7.3. and 7.4.) to third parties is prohibited for the Buyer subject to the agreement of the Supplier.
8. DEFAULT; CONDUCT WHICH PUTS THE CONTRACT AT RISK
8.1. In case the Buyer defaults on payments, the Supplier is authorised to take back the subject of contract after a reminder and notice of refusal; the Buyer shall be obligated to hand over the subject of contract.
8.2. The Supplier is authorised to prohibit the resale or reuse of the goods in case of payment default. The Supplier may also enter the Buyer’s premises and remove the goods from there. This removal shall not constitute a withdrawal from the contract subject to a written declaration.
8.3. In case the Buyer defaults on payments, the Supplier is authorised to invoice immediately as due any deferred liabilities from other business transactions. In the same way, bills of exchange accepted in payment can become due independent of their runtime.
8.4. In case of payment default, the Supplier is authorised to demand pre-payment for any deliveries still to be made.
8.5. The avoidance of the abovementioned rights of the Supplier, for example through a bank guarantee, can only take place if it has been agreed upon in writing with the Supplier.
9. WARRANTY; OBLIGATION TO GIVE NOTIFICATION OF DEFECTS
9.1. The warranty period shall begin at the time of handover or, in case of self-collection, on the day of collection. In case of partial deliveries, the day of the partial delivery is decisive.
9.2. If the purchase for both parties represents a commercial transaction, the Buyer shall inspect the goods immediately after delivery or self-collection and, if defects are found, shall inform the Supplier accordingly without delay. If the Buyer fails to send a notification, the goods shall be considered approved unless a defect is revealed which could not have been recognised during the inspection. Should such a defect be revealed subsequently, a notification must be sent immediately after its discovery, otherwise the goods will be considered approved even in consideration of these defect. The rejected parts are to be considered separately for each partial delivery within 14 days after the notification of defects.
9.3. Warranty claims, including claims for compensation of indirect damages and other consequential damages shall fall under the statute of limitations 6 months after receipt of the notification of defects.
9.4. No guarantee shall be borne for damages caused by the violation of operating and installation regulations or unsuitable or improper treatment, natural wear or interventions undertaken by the Buyer or by third parties.
9.5 The Supplier shall supply replacement goods for the defective goods; the right to transformation or reduction is excluded.
9.6. If the notification of defects is justified, the Supplier shall bear the costs of the return shipment and the replacement delivery including shipping. The Buyer shall bear all remaining costs.
9.7. All further claims by the Buyer are excluded.
9.8. If a claim for damages is raised against the Supplier for which the Buyer would also be held liable, then the Buyer must exempt the Supplier to the sum of the claim. If the Supplier is partially liable, this shall be taken into account accordingly in accordance with § 5 of the Product Liability Act and §§ 823, 840, 254 of the BGB (German Civil Code).
9.9. If a claim for a quality defect is made against the Supplier or Buyer for which the other party is also responsible, the respective other party is authorised to enter into the legal dispute conducted with the third party.
10.1. The Supplier shall be held liable to the Buyer for the payment of damages due to the violation of contractual and non-contractual obligations only in case of intent and gross negligence. Indirect damages shall not be compensated subject to the following provisions.
10.2. The limitation of liability shall be rendered invalid if the damage has been caused through a severe organisational fault by the Supplier. The Supplier shall be held liable to the full sum subject to Clause 10.4. in case of gross negligence of the Managing Director and executive employees.
10.3. The Supplier shall be held liable in case of any culpable violation of major contractual obligations.
10.4. The liability shall be limited to the compensation of contract-typical, foreseeable damages.
10.5. Claims from the Product Liability Law shall remain unaffected.
11. ASSURED CHARACTERISTICS
11.1. Characteristics are only then assured if the Supplier expressly designates them as such in writing.
12. TERMINATION, WITHDRAWAL
12.1. If the Buyer terminates a contract or withdraws from the same without the Supplier being responsible for the termination or withdrawal due to culpable violation of the contract, then the Supplier shall be entitled to the agreed remuneration for the fulfilment of the contract minus the expenses saved. The entitlement to remuneration shall be rendered invalid if the Buyer is able to verify that the Supplier has sold the goods elsewhere or has maliciously refrained from selling them elsewhere. In such cases, the Supplier shall only be entitled to the difference between the lost and the obtained or maliciously not-obtained profit.
13. EXPORT CERTIFICATE
13.1. If the Buyer collects the goods themselves or commissions a third party to collect them, and transports or ships them into a region outside the European Community, then the Buyer must provide to the Supplier the export certificates required for tax reasons. If these certificates are not supplied, the Buyer must pay the value added tax rate from the invoice sum applicable for deliveries within the Federal Republic of Germany.
14.1. The contractual partners shall obligate themselves to treat all commercial and technical details which are not publicly known and which become known to them in the course of the business relationship as trade secrets. Drawings, models, templates and similar objects may not be provided to or otherwise made accessible to unauthorised third parties.
15. FINAL PROVISIONS
15.1. If a contractual partner ceases payments or if bankruptcy proceedings should be filed regarding their assets, then the other party shall be authorised to withdraw from the contract for the unfulfilled part of this contract. The rights of the insolvency administrator shall remain unaffected.
15.2. Place of fulfilment and place of jurisdiction are the Suppliers’ headquarters.
15.3. It shall hereby be agreed that the Law of the Federal Republic of Germany shall apply.
15.4. All agreements which modify these General Business Terms and Conditions shall require the written form to take effect. Waiving of the written form requirement shall also require a written agreement.
15.5. Should one of the abovementioned clauses be rendered ineffective, this shall not affect the efficacy of the rest of the contract. The parties are obligated to make an agreement in place of the ineffective clause which lies closest to the economic purpose of the ineffective clause. The same applies in case of a contractual gap.
15.6 These General Terms and Conditions of Delivery have been translated into English. In case of any inconsistency or ambiguity between the English version and the German version, the German version shall prevail.
As of 12/2020