General Sales Terms and Conditions of Spray-Liner GmbH - Zum Scheider Feld 10 - 51467 Bergisch Gladbach Germany
As of: 05, 2014
1. Scope of Regulation, Inclusion, Side Agreements and Requirements on Forms
1.1 Our deliveries and services shall be performed exclusively on the basis of these general sales terms and conditions. They shall apply without express renewed notification of the purchaser for all future offers, deliveries and services.
1.2 Our sales terms and conditions shall apply even when we undertake business with the knowledge of conditions and terms on the part of the purchaser that are contrary to our terms and conditions or deviate from such. Conditions and terms on the part of the purchaser to the contrary shall only apply when we have agreed to their applicability in writing.
We hereby expressly gainsay the notification of said terms and conditions.
1.3 Oral side agreements shall not exist upon conclusion of the contract.
1.4 Future agreements shall require the written form to take effect. Such shall also apply for the agreement to, or the waiver of, the written form determined in these terms and conditions. The purchaser shall bear the responsibility for ensuring that the communications paths specified by them shall be accessible.
2. Transferred Documents and Advertising Agents
2.1 We retain our rights of ownership and copyright to all documents transferred to the purchaser in connections with the issuances of orders, such as operating instructions, documentation, brochures or advertising videos and so on. Such documents and advertising agents may not be made accessible to third parties unless we issue our express agreement in writing to the purchaser.
3. Offer, Completion of Contract, Period of Commitment and Characteristics of Service
3.1 The purchaser’s order shall represent an offer upon conclusion of the contract. The contract shall take effect through the purchaser’s order, on the one hand, and through the acceptance of this order by us or through its execution, on the other hand. An order confirmation received by the purchaser after the order shall not represent an acceptance of the offer, but rather only document that we have received the order.
3.2 The purchaser shall be committed to their order for three weeks.
3.3 The characteristics of the services to be provided by us shall be exclusively oriented on the written contractual order documents. Images, descriptions and specifications of dimensions or quantity in the catalogs and brochures shall not be contractually binding and shall not have any claim on completeness. The rights to make changes in the execution and material shall be retained to the extent such shall be justifiable to the purchaser.
4. Prices, Shipping Expenses, Selection Shipments, Sets and Call Orders
4.1 All specified prices are non-binding in euro. The legal VAT must always be added to the specified prices, should such not be specified. We retain the right to adjust prices at any time.
4.2 The legal value added tax is not included in our prices. It will be indicated separately on the invoice in the legal amount at the time of invoicing.
4.3 Expenses for packaging and shipping shall not be included in the specified net price. We shall invoice postal, packaging and shipping expenses for orders with a value up to 150.00 EUR (net) with a minimum expense of 6.90 EUR. Shipping expenses shall be invoiced according to expenditure for system packages, epoxy resins and cleaning liquids.
4.4 Expenses for travel, vehicle, technicians and equipment time shall be invoiced in principle for cases of orders with assembly or repairs. Waiting and assembly periods will also be invoiced.
4.5 Selection shipments must be selected within 10 days and returned in the remaining period. The entire selection shipment shall be invoiced upon expiration. Losses or damages to selection shipments shall be borne by the purchaser.
4.6 Call orders must be concluded within a period of one fiscal year by call. Otherwise, we shall be authorized to make adjustments to prices.
4.7 Payment of the purchase price must be made exclusively to the account specified by us. The deduction of rebates shall only be allowed by special written agreement.
5. Exchange and Return of Goods
5.1 Procurement articles that are not included in our warehouse catalog cannot be returned. Worn articles and resins shall be excluded from return.
5.2 A contractual right of return shall be granted for other consumable materials. The purchaser may return the goods within 14 days to us with the specification of the reason for the return. To this end, the goods must be unused, complete and in the original packaging. The return shall be at the expense and risk of the purchaser. We shall not accept shipments that are not free of charges. For the return, we shall invoice a processing fee in the amount of 30% of the net invoice amount.
5.3 For the remainder, a contractual right of return of ordered goods shall not exist.
6. Payment, Obligation to Services in Advance, Consequences of Default and Dunning Expenses
6.1 All invoiced amounts shall be due for payment without deductions immediately upon receipt of the invoice by the purchaser.
6.2 When placing orders with a value greater than 5,000.00 EUR (net), the purchaser shall be obligated to make payment of the invoice amount in advance. The same shall apply should a significant worsening of the purchaser’s asset ratio arise. If the purchaser does not meet their obligation to make payment in advance, we shall be authorized to withdraw from the contract.
6.3 If the payment defaults, we shall be authorized to demand default interest in the amount of 8 percentage points above the base annual interest rate. Fees in the amount of 10.00 EUR shall be invoiced for each dunning notice.
7. Compensation, Right of Retention and Non-assignment Clause
7.1 The purchaser shall not be authorized to demand compensation against our claims for payment unless the purchaser’s demands are undisputed, ready for adjudication or determined to be legally effective.
7.2 The purchaser shall not be have a right of retention against our claims of payment, even in cases of defect, unless they result from the same contractual relationship.
7.3 The purchaser shall not empowered to transfer from their claims against us to third parties.
8. Location of Fulfillment, Obligation for the Provision of Service and Delivery, Transfer of Risk, Partial Services and Delivery Deadlines
8.1 Our location with the address of Zum Scheider Feld 10, 51467 Bergisch Gladbach, Germany, shall be agreed upon as the location of fulfillment for services on both sides.
8.2 The purchaser at the location of fulfillment must pick up goods ordered. If the purchaser requests shipment of the goods ordered by them, the risk of potential loss shall be transferred to the purchaser as soon as we have transferred the goods to the shipper determined by us for shipment. Deliveries shall not be insured.
8.3 Partial deliveries shall be allowed to the extent that the purchaser does not have an interest in such or such cannot be determined to be unjustified to the purchaser. If we make use of this right, expenses for packaging and shipment shall only be invoiced once.
8.4 Delivery deadlines communicated shall not be contractually binding and compliance with them shall not be guaranteed. If the ability to make delivery depends on an up-chain supplier and the delivery fails to be made due to reasons for which we are not responsible, we shall be authorized to withdraw from the contract. The purchaser shall not have a right to compensation for damages based on this cause in such cases. Such shall not apply when the delivery deadline was designated as “fixed” or “contractually binding”.
9. Retention of Ownership
9.1 We retain the ownership of the delivered goods (retained goods) until the complete fulfillment of all demands resulting from the respective transaction, including side demands, and all demands already outstanding against the purchaser until the time of conclusion of the contract.
9.2 If the retained good are re-processed by the purchaser, such processing shall be done for us as manufacturer without additional obligation on us. Our ownership of the re-processed items or of the items newly manufactured through the re-processing shall continue to exist. To the extent that a new item will be created through the re-processing in consideration of the ownership of other suppliers, we shall demand co-ownership of the other re-processed objects at the time of re-processing into the newly created items in relation at the value of our ownership of the retained goods (outstanding final balance including VAT). In the event that such automatic acquisition of ownership should arise for us, the purchaser shall transfer their future ownership, or co-ownership, existing at that time, in the ratio indicated above, in the newly created items as collateral to us.
9.3 If the retained goods are connected with items into one single item, or inseparably mixed, we shall acquire co-ownership of the newly created item in proportion to the value of the retained goods (outstanding balance including VAT) in relation to the value of the other object connected, or inseparably mixed, at the time of combination. If the combination or mixing is done in such a manner that the purchaser’s items should be viewed as the primary item, it shall be considered as agreed upon that the purchaser shall transfer proportional co-ownership to us. The purchaser shall hold the singular ownership or co-ownership arising thereby for us.
9.4 Upon non-compliance with the agreed upon payment deadlines, as well as draft and protest of a check or upon declaration of insolvency, we shall be authorized to demand the retained goods, whereby expenses arising to that extent shall be borne by the purchaser. The demand for return of the retained goods shall only represent a withdrawal from the contract if we expressly declare such. Upon our demand, the purchaser shall be obligated without limitation to issue the exceptional and legal application of the information required for demand to us and make written documents as well as information available immediately.
9.5 If the value of the collateral provided to us exceeds our demand by more than 10%, we shall be obligated at the demand of the purchaser to release this collateral to that extent at our discretion.
9.6 To the extent that a third party obtains ownership of the retained goods (such as through seizure) or the threat of insolvency on the part of the purchaser, the purchaser must notify us immediately of such in order to make the enforcement of our rights of ownership possible.
10. Inspection and Obligation to Give Notice of Defects
The purchaser’s claims of damage presuppose that they have met the obligations for inspection and complaint owed them according to §377 of the German Commercial Code (Handelsgesetzbuch, hereafter HGB).
The purchaser must inspect the goods immediately upon receipt as soon as such shall be possible according to the proper course of business and, when there are defects, immediately notify us. If they do not notify us, the goods shall be considered approved unless a defect is involved that could not be detected during the inspection. If such a defect arises later, the notification must be provided immediately after discovery. Otherwise, the goods will be considered as approved in view of this defect. The timely transmission of the notification shall suffice for the retention of the rights. If we fraudulently conceal a defect, we cannot make use of the previous regulations.
11. Demand for Return, Authorization for Return
We shall be authorized to withdraw from the contract after a suitable determination of a deadline and demand the return of the goods delivered under retention of ownership to the extent that the purchaser enters into default with the payment of the sale price or does not make two payments at the agreed upon payment rates or the purchaser culpably infringes upon the obligations placed on them in accordance with Paragraph 9.
12. Liability for Defects, Purchaser’s Rights and Expiration
12.1 We do not make any guarantees for used goods.
12.2 In all other cases, the laws regarding defects shall apply with the following modifications in accordance with Clauses 12.3 through 12.8 and Paragraph 13.
12.3 We guarantee that delivered goods shall be free of material and legal defects.
12.4 We guarantee that delivered software shall have the agreed upon characteristics and do not have defect that restrict the suitability for the use indicated according to the contract. The purchaser is aware that it is not possible to create a program completely free of errors according to the state of the technology. All claims of defect shall expire when the purchaser or third parties intervene in the software.
12.5 To the extent that purchaser shall apply rights of defect against the manufacturer of the goods delivered by us, we will support the purchaser at our discretion and transfer existing rights against the manufacturer as needed.
12.6 In the case of defective manufacturing and delivery of goods (13.4) or software (13.5), we are obligated to further fulfillment in the form of correcting the defect or of delivery of a new item free of defects at our discretion. We are authorized to make two attempts for the performance of further fulfillment. After two attempts to make improvements without success, the purchaser may withdraw from the contract or demand a suitable reduction of the compensation (reduction) at their discretion.
12.7 If the purchaser withdraws from the contract, the purchaser must immediately return the delivered goods to us and make compensation for the value of wear. It is assumed that a percentage in the amount of 1/60th of the net sales price per month of use will be owed as compensation for use. The purchaser retains the right of proving lower compensation of use.
12.8 Rights of defects do not exist, if the defects or damages are caused by wear due to operational conditions or usual wear (such for rollers and glide rails, sealing systems, sealing rings, rubber parts, connection elements, hoses of any type, fastenings, illumination agents, enameled parts, moveable electronic lines, ball bearings, roller bearings, cogs, tensioning clamps, rotors or helices) as well as by improper usage, errors in operation or culpable treatment of the product by the purchaser. Increased or reduced deliveries along the lines of +/- 5% shall not represent a defect.
12.9 The purchaser shall only be authorized to attempt to correct the defect themselves after the unsuccessful expiration of a suitable deadline for the correction of defects placed on us or with our written agreement. The right of defect shall cease to exist if the purchaser attempts to correct defects themselves without the presence of the requirements indicated in Clause 1. Our right to the performance of two attempts to make improvements shall remain unaffected.
12.10 All purchasers’ rights of defects resulting from a defective service shall expire after 12 months. The beginning of the expiration period shall be oriented on the legal regulations.
13. Additional Liability and Limitation of Liability
13.1 We shall be liable in cases of intent or culpable negligence in accordance with the legal provisions.
13.2 The damage compensation liability shall be limited to the foreseeable damages that typically arise in cases of light culpability of significant contractual obligations. A significant contractual obligation shall be present when the achievement of the purpose of the contract is endangered by infringement or the purchaser trusted, and was allowed to place trust, in the compliance with the obligation.
13.3 For the remainder, we shall not be liable for the light culpability of contractual obligations.
13.4 The regulations contained in Clauses 13.1 through 13.3 shall also apply for the debt and the liability of our vicarious agents and representatives.
13.5 The preceding limitation of liability shall not apply for cases of culpable injury of life, limb and health as well as for deviations from the guarantee and fraudulent concealment of defects. Liability in accordance with the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
14. Applicable Law, Court of Jurisdiction and Validity Clause
14.1 The contractual partners agree with regard to all legal relationships from this contractual relationship to the application of German law under the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) for the present and future fulfillment of the contract.
14.2 The court agreed upon as responsible for the location of fulfillment shall be the court of jurisdiction, when the purchaser is a business person, legal entity of public law or publicly legal special fund in the spirit of the HGB or does not have a general court of jurisdiction in the Federal Republic of Germany. Furthermore, we shall be authorized to make claims against the purchaser at their general court of jurisdiction.
14.3 If individual provision of the contract with the purchaser should be, or become, ineffective under the inclusion of these general sales terms and conditions in whole or in part, or the contract contains loopholes, the effectiveness of the remaining provisions shall not be affected thereby. If the ineffectiveness of individual provisions occurs due to reasons other than those of the right of general business conditions, the contractual partners shall be obligated to agree upon a regulation that will come as close as possible to the spirit and purpose of the ineffective provisions.
15. Data Protection, Acquisition, Processing and Use of Private Customer Data, Reference to a Separate Data Protection Declaration and Use for Advertising Purposes
15.1 We will use the private information provided by you for the completion of the orders and the provision of service providers. Additional information about the nature, scope, purpose of the data acquisition, processing and use of the private information provided shall be found in our data protection declaration. Data shall be processed according to the rules of the applicable German Federal Data Protection Act (Bundesdatenschutzgesetzes, BDSG) as well as the German Teleservices Act (Telemediengesetzes, TMG).
15.2 The data necessary for the completion of business will be saved and transferred to companies associated with us or service provision partners who we employ in the spirit of the German Data Protection Act (Bundesdatenschutzgesetzes, BDSG).
15.3 Upon delivery of the invoice, we will exchange customer data with the following service providers under some circumstances for purposes examining creditworthiness:
Schufa Holding AG, Kormoranweg 5, 65201 Wiesbaden, Germany
Creditreform Hannover-Celle-Wahlburg Bissel & Kruschel KG, Hans-Böckler-Allee 26, 30173 Hanover, Germany
15.4 Naturally, all private data will treated as strictly confidential in general and customer’s concerns about protection shall be strictly taken into consideration according to the legal guidelines.
15.5 We shall use the data provided to us for our own advertising purpose above and beyond the purposes described above. You may revoke the further usage of your data for these purposes at any time through a simple notification to Spray-Liner GmbH, Zum Scheider Feld 10, 51467 Bergisch Gladbach, Germany, Ph.: +49