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Odenwälder Lackfabrik GmbH
General Terms of Business
1. The following Terms of Delivery and Payment apply only to companies. They do not apply to consumers.
2. Our Terms of Delivery and Payment shall apply exclusively. We do not accept any Buyer’s Terms of Delivery and Payment contrary hereto or deviating herefrom unless we have expressly agreed to their validity in writing. Our offers are non-binding unless expressly agreed otherwise.
3. Additional agreements, changes to and deviations from these Terms shall be made in writing.
1. The agreed prices are quoted ex works and are valid plus statutory value added tax applicable on the day of delivery.
2. The prices are calculated according to the weights, numbers of items and quantities determined by ourselves if the Buyer does not object without delay, however within 14 days after receipt at the latest.
3. Should we generally reduce or increase our prices during the term of the contract, the changed prices shall be applicable for the outstanding quantities. If prices are increased, the Buyer shall be entitled to withdraw from the contract in writing either immediately or no later than four weeks after receipt of the notification of such price increase. Such withdrawal shall have no effect on deliveries made before the price increase.
III. Technical advice
1. Any advice provided by us is given to the best of our knowledge. All details and information regarding the suitability and application of the delivered goods shall not release the Buyer from conducting his own examinations and tests. This shall in particular apply if thinners, hardeners, additional paints or other components not purchased from us are added.
1. The Buyer shall collect the goods on the agreed delivery date or, if a delivery date has not been fixed, immediately after notification that the goods are ready for dispatch at the place of performance in accordance with Section IX. 1. If the Buyer is in default with the acceptance of the goods, we shall be entitled to dispatch the goods at our discretion at the Buyer’s expense or, if not otherwise possible, to keep the goods in storage, if necessary also in the open air. In such case we shall not be liable for (accidental) loss or damage to the goods. If the goods are kept in storage, we shall be entitled to invoice the goods after one week.
2. If, contrary to the provisions of para. 1, it has been agreed that we are responsible for shipment of the goods, transport shall be effected at the Buyer’s expense and the choice of means of transport and transport route shall be made at our discretion unless special instructions are given. Risk shall be transferred at the time at which the goods are handed over by us to the carrier.
3. Partial deliveries reasonable for the Buyer shall be permissible.
4. Considerable, unforeseeable interruptions in operations and exceeding of delivery periods or non-delivery by our suppliers, also those for which we are not responsible, as well as interruptions in operations due to raw material, energy or labour shortages, strikes, lockouts, difficulties in providing means of transport, traffic disruptions, acts of government and cases of force majeure affecting us or our subsuppliers shall prolong the delivery period by the duration of the hindrance to performance insofar as these are relevant for the deliverability of the goods. We shall inform the Buyer immediately of the beginning and end of such hindrances. If delivery is delayed by more than one month as a result, both we and the Buyer shall be entitled, subject to the exclusion of damage claims, to withdraw from the contract with respect to the volume affected by the disruption in delivery. This shall have no bearing on the Buyer’s statutory right of withdrawal in the case of disruptions in delivery for reasons for which we are responsible.
5. If delivery is effected in loaned containers, they shall be returned to us within 90 days after receipt of the delivery, empty of residues and carriage paid. Loss of and damage to loaned packaging shall be borne by the Buyer if he is responsible herefor. Loaned packaging may not be used for other purposes or for accommodating other products. It is intended only for transport of the delivered goods. Inscriptions may not be removed.
6. Non-returnable packaging shall not be returned to us; instead we shall designate to the Buyer a third party who shall arrange for the packaging to be recycled in accordance with the Packaging Ordinance.
1. The invoice amount shall be paid within 10 days after the invoice date without deductions. Timely payment is deemed to have been made only when the money is available to us and cleared on the account specified by us on the due date.
2. In the event of default of payment, default interest shall be paid at a rate of 8% above the current base interest rate. Both we and the Buyer shall be at liberty to furnish proof of higher or lower damage caused by default.
3. A bill of exchange shall not constitute a cash payment and shall be used in payment only with our previous consent. Costs for discounts and bills of exchange shall be chargeable to the Buyer.
4. Withholding and offsetting due to claims on the part of the Buyer contested by us shall be excluded.
5. If due invoices are not paid or if any other circumstances indicate a major deterioration in the Buyer’s financial standing after conclusion of the contract, we shall be entitled to demand immediate payment of all other debts based on the same legal relationship.
VI. Retention of title
1. We reserve the right to retention of title to the supplied items until payment of the purchase price has been effected in full. We shall retain title to the delivered goods until fulfilment of all claims arising from the ongoing business relationship with the Buyer. Retention of title shall also continue to exist if our individual claims are included in a current invoice and the balance is drawn and acknowledged. Payments notwithstanding, purchase price receivables shall remain in force for as long as any bill of exchange liability which we have assumed in this connection persists, for example in a cheque-bill of exchange process.
2. The Buyer shall perform processing or commingling for us without any obligation arising for us. In the event that our goods are processed or commingled with items not owned by us, the Buyer shall hereby assign to us as security for our claims co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other processed items on condition that the Buyer shall keep the new item in storage for us.
3. The Buyer shall be entitled to make free use of the products in the ordinary course of business as long as he meets his obligations arising from the business relationship with us in time.
4. Claims arising from the sale of goods to which we have title shall hereby be assigned to us by the Buyer in the amount of our ownership share of the sold goods by way of security. If the Buyer combines or commingles the delivered goods against payment with a primary item owned by a third party, he shall hereby assign to us by way of security his remuneration claims from a third party up to the total price invoiced by us for the goods delivered. We shall accept such assignments.
5. At our request the Buyer shall provide us with all necessary information about the status of the goods owned by us and the claims assigned to us and to notify his customers of such assignment.
6. The Buyer undertakes to store the goods subject to retention of title with care and to insure them against loss and damage at his own expense. He shall hereby assign to us in advance his claims arising from the insurance contracts. We shall accept such assignment.
7. If the value of the securities exceeds our claims by more than 20%, we shall release the appropriate securities at our discretion if so requested by the Buyer.
8. The entitlement of the Buyer to dispose of the products subject to our retention of title and to collect the claims assigned to us shall expire as soon as the Buyer discontinues payments and/or falls into financial difficulties. If these circumstances occur, we shall be entitled to demand immediate temporary repossession of all the goods subject to retention of title to the exclusion of retention rights, without setting a further deadline or withdrawing from the contract.
9. If retention of title should not be effective under the law of the country in which the supplied goods are located, the Buyer shall at our request furnish equivalent security. If the Buyer does not comply with this request, we may, regardless of agreed payment dates, demand immediate payment of all outstanding invoices.
VII. Claims for defects
1. The Buyer shall examine the goods for defects immediately after receipt.
2. Obvious defects shall be reported to us immediately in writing, however no later than 14 days after receipt of the goods. Hidden defects shall be reported no later than 14 days after their detection. The notification shall be in writing and shall precisely describe the nature and extent of the defects.
3. In the case of duly raised and justified notifications of defects we shall be entitled at our discretion to remedy the defect or make a replacement delivery. If we remedy the defect we shall bear all expenses necessary for this purpose insofar as these do not increase due to the fact that the purchased item has been delivered to a location other than the place of performance. If we are unwilling or unable to remedy a defect or make a replacement delivery or if such actions are delayed beyond a reasonable period of time for reasons for which we are responsible, or if the remedying of a defect or replacement delivery fail for other reasons, the Buyer shall be entitled at his discretion to demand rescission of the contract or an appropriate reduction of the purchase price.
4. All claims arising from defects shall lapse after 12 months following receipt of the goods by the Buyer if the supplied goods have not been used in accordance with their customary use for a building and have caused the defectiveness of the building.
5. In the case of entrepreneur’s recourse (Section 478 of the German Civil Code) we shall be entitled to reject rights of recourse of the Buyer with the exception of the claims for redelivery of the goods and reimbursement of expenses insofar as we grant the Buyer equivalent compensation for the exclusion of his rights. Claims for compensation by the Buyer shall be excluded without it being necessary to grant compensation.
1. Except as otherwise provided, all further claims for reimbursement on the part of the Buyer against us and our employees, representatives and vicarious agents shall be excluded, in particular a claim for compensation for damage not caused to the supplied goods themselves.
2. The limitations and exclusions of liability contained in these Terms of Delivery and Payment shall not apply if in cases of intent, gross negligence, injury to life, body or health, or as a consequence of an accepted quality or service life guarantee or in accordance with the regulations of the Product Liability Act a liability on our part is mandatory. The same shall apply in the case of a breach of duties on our part which jeopardizes the achievement of the purpose of the contract, liability however being restricted to compensation for typical, foreseeable damages.
IX. Place of performance, jurisdiction, miscellaneous
1. The place of performance for all liabilities resulting from the business relationship or the individual contract shall be our respective shipping point, for payment our head office.
2. The place of jurisdiction shall be at our discretion our head office or the place of general jurisdiction of the Buyer. This shall also apply to disputes in relation to deeds, bills of exchange or cheques.
3. Contractual relations with our customers shall be governed exclusively by the law of the Federal Republic of Germany. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG – “Vienna Convention“) of April 11, 1980 is excluded.
4. Data of the Buyer shall be stored and processed by us to the extent necessary for the proper performance of the contract.