Terms of Delivery and Payment of Döllken-Kunststoffverarbeitung GmbH
The following terms apply exclusively to all deliveries, including those under future transactions; this shall also apply where they are not referred to again in an individual case but the Buyer had the opportunity to take note of them in an earlier business relation.
Our offers are always non-binding until the sale is confirmed explicitly.
We do not accept contrary terms from the Buyer or terms which deviate from our own terms of sale unless we have expressly agreed in writing to their validity. Our terms of delivery and payment shall also apply if we deliver to the Buyer unconditionally in the knowledge of contrary terms from the Buyer or of terms which deviate from our own terms of delivery and payment.
Our terms of delivery and payment apply only to companies within the meaning of section 310 (1) of the German Civil Code.
The legal invalidity of part of the following terms shall not affect the validity of the remaining terms.
Deliveries shall always be for the account and at the risk of the Buyer.
In the case of customised products we reserve the right to oversupply and to undersupply to a volume of up to 20 % unless otherwise expressly agreed; this shall lead to extra costs.
a) We reserve the ownership of the items sold until all payments under the delivery contract have been received. In the event of behaviour of the Buyer in breach of the contract, in particular in the event of default of payment, we shall be entitled to take the items back. Taking items back shall not be constructed as a withdrawal from the contract.
b) The Buyer shall be entitled to sell the items sold in the normal course of business; however, he hereby assigns to us all claims under the resale against his own buyers or third parties to the amount of our final invoice amount (including VAT), independently of whether the items sold are resold without or after processing.
The Buyer shall continue to be authorised to recover these debts even after assignment. This shall not affect our right to recover the debts ourselves. However, we agree not to recover debts ourselves as long as the Buyer complies with his payment obligations from the amounts received, does not default, does not suffer any material deterioration of his financial situation and in particular applications for the institution of bankruptcy, composition or insolvency proceedings have not been submitted and the Buyer does not cease payment. If this is the case, we may demand that the Buyer notifies us of the assigned claims and the debtors, provides all the information necessary for collection and notifies the debtors (third parties) of the assignment.
c) To secure our claims against him the Buyer shall assign to us all claims against a third party which arise through the connection of the sold item with land.
d) We agree at the request of Buyer to release securities to which we are entitled in so far as the realisable value of our securities exceeds the value of the secured claims by more than 10 %; we shall have the right to select the securities to be released.
e) The Buyer agrees our request under the conditions of No. 3 d) to provide us with a list of all goods still subject to reservation of title, including those which have been processed, a list of claims against third-party debtors and the addresses for invoices.
f) The Buyer shall hold the goods subject to reservation of title in safe custody for us. He shall insure them against fire, theft and water damage. The Buyer hereby assigns to us his claims to compensation against insurance companies or others for damage of the type referred to in sentence 2 above to the amount of our claims.
In the case of a commercial transaction the Buyer shall notify visible defects, transport damage, damage to packaging and shortages in writing as soon as the goods are received together with exact details of the complaint. In the case of damage to the packaging the Buyer agrees to inspect the goods on delivery and to notify the carrier and us of any damage.
The duty to inspect shall cover the whole delivery. If the addressee accepts goods without complaint all claims shall lapse. If the transaction is not a commercial transaction the Buyer shall inspect the goods without delay after receipt. The period for submitting a complaint shall be one week.
Standard minor deviations in the dimensions, weight and colour of the goods delivered, in particular in cases in which they are used outside, shall not entitle the Buyer to submit complaints. We cannot guarantee colourfastness and weathering resistance.
Complaints from the Buyer shall be subject to his due compliance with his obligation to inspect and submit complaints under section 377 of the German Commercial Code.
In the event that the item bought is defective the Buyer shall have the option of subsequent fulfilment in the form of remediation of the defect or of the delivery of a new item free of defects. With the exception of liability for damages arising from injuries to life and health, in the framework of our contractual obligations we shall only be liable to pay damages non-contractually without waiver of the statutory preconditions in accordance with the following provisions:
Guarantee claims shall be limited to replacement deliveries. Following a defective replacement delivery the Buyer shall be entitled to reduce the price. All further claims, in particular for loss of profits or for consequential damages, are excluded, as is our liability for the goods delivered being unsuitable for the purpose intended by the Buyer.
Guarantee claims shall lapse on the processing of goods we deliver even when they become essential components of another item.
In the event that we advised the Customer on or before the order this was done to best of our knowledge and belief but to the exclusion of all guarantees and shall not be grounds for claims for damages against us. In so far as liability for damages is excluded or limited as against us this shall also apply with regard to the personal liability for damages of our employees, workers, associates, representatives and vicarious agents.
We claim in all cases the right of sole production for all drafts, drawings and tools, in particular profiles, which we make. The Buyer must obtain our express prior consent before passing them to third parties.
Their implementation and imitation by third parties are subject to our approval. The Buyer shall guarantee that the production and delivery of goods made in accordance with his instructions do not infringe third-party proprietary rights. We shall retain the sole ownership of moulds, patterns and other fixtures even where the costs for these items have been charged to the Buyer. A breach of this provision shall lead to the Buyer being liable to pay compensation and the Buyer hereby accepts this.
a) The client ensures and guarantees that it is entitled to use the materials that it will be providing to the contractor for incorporation, processing, or other configuration as specified in the contract (“Customer Materials”) for the purpose stipulated in the order and that the incorporation, processing, or configuration as specified in the contract, as well as the contractor’s placement on the market of Customer Materials used in accordance with the contract, will not violate any third-party rights.
b) The client agrees to indemnify the contractor against all third-party claims in connection with the incorporation, processing, or configuration of Customer Materials as specified in the contract and their placement on the market by the contractor. The release of liability also relates to any legal costs for defending such third-party claims.
Invoices shall be paid within 30 days of the date on the invoice. Irrespective of continuing legal or contractual claims the customer is obliged to pay damages as follows:
In the event of delay in payment the customer will pay the costs of judicial and extra-judicial means and proceedings, usual and accruing within the country and abroad, as well as (without evidence being necessary) interest at the rate applicable in 45964 Gladbeck/Germany for unsecured short-term loans in the agreed currency, at least however interest at 9 per-cent points over the base rate of the German Federal Bank (Deutsche Bundesbank).
Our prices do not include VAT and are understood as plus VAT; they apply ex stores. In Germany we supply free of charge to address of buyer if the goods have a net value of 2,000.00 €; outside Germany from 4,000.00 € duty unpaid. In the case of export business we reserve the right to charge sales tax (including subsequently) if the required evidence of export shipment cannot be provided.
We shall refuse to accept delivery of returns which do not contain a returns note issued by us.
In so far as this is permitted by statute, setting off or a right of retention in favour of the Buyer are excluded.
Verbal ancillary agreements shall not be valid unless we confirm them in writing.
Gladbeck shall be both the place of performance for all obligations arising under the contract and the venue. German law applies.