General Terms and Conditions of Business of Neschen Coating GmbH - Hans-Neschen-Straße 1 - 31675 Bückeburg
§ 1 General – Area of application
(1) Our terms and conditions of business apply exclusively; we do not recognise conflicting or deviating terms and conditions of the customer unless we have expressly agreed to their validity in writing. Our terms and conditions of business shall also apply even if we carry out delivery to the customer without reservation, even if we are aware of the customer’s terms and conditions which contradict or deviate from our terms and conditions of business.
(2) All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
(3) Our terms and conditions of business shall only apply to businesses within the meaning of § 14 of the German Civil Code (BGB).
(4) Our terms and conditions of business shall also apply to all future transactions with the customer.
§ 2 Offer – Offer documents
(1) If the customer’s order is to be qualified as an offer in accordance with § 145 German Civil Code (BGB), we can accept it within two weeks.
(2) We reserve proprietary rights and copyrights to illustrations, drawings, calculations and other documents. This shall also apply to such written documents which are designated as “confidential”. The customer requires our express written consent before passing them on to third parties.
(3) Information on the subject matter of the delivery or service (e. g. weights, dimensions, values in use, tolerances, quality, technical data) and our representations of the same (e. g. drawings and illustrations) are only approximately authoritative, unless the usability for the contractually stipulated purpose presupposes exact agreement. Unless expressly agreed otherwise in individual cases, this information does not constitute any assurances, warranties of quality, condition, durability or other guarantees, but merely serves to describe or identify the delivery or service.
(4) Deviations and deviations which are customary in the trade and which take place on the basis of legal regulations or represent technical improvements, as well as the use of equivalent other forms of production or materials are permissible – without consultation with the customer – insofar as the usability for the contractually stipulated purpose is not impaired.
(5) The above applies accordingly to the information contained in our catalogues, brochures, advertising or advertisements about dimensions, weights, properties, durability, performance values as well as shipping weights and similar specifications insofar as they are details of quality in individual cases; information in the order confirmation shall take precedence in each case.
§ 3 Prices – Terms of payment
(1) Unless otherwise stated in the order confirmation, our prices are quoted “ex works”, excluding packaging; this will be invoiced separately.
(2) The statutory value-added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.
(3) The deduction of discounts requires special written agreement.
(4) Unless otherwise stated in the order confirmation, the purchase price is due for payment net (without deduction) within 30 days of the invoice date. The statutory regulations regarding the consequences of late payment shall apply.
(5) The customer shall only be entitled to offsetting rights and rights of retention if his counterclaims are legally established, undisputed or acknowledged by us. Furthermore, he/she is entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 4 Delivery period
(1 Deadlines and dates for deliveries and services are always approximate, unless a fixed delivery period or a fixed delivery date has been agreed. If a delivery period has been agreed, it shall begin on the date of the order confirmation, but not before receipt of the documents to be procured by the customer (e. g. specifications, drawings, approvals, samples, models) and any releases to be provided by the customer and clarification of all technical questions.
(2) Compliance with our delivery obligation shall further require the timely and proper fulfilment of the customer’s obligation. The right to object to the non-fulfilled contract remains reserved.
(3) If the customer defaults on acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims or rights remain reserved.
(4) Insofar as the prerequisites of subsection (3) are met, the risk of accidental loss or accidental deterioration of the delivery and service to be rendered by us shall pass to the customer at the time when he is in default of acceptance or default of payment.
(5) If we are in default of delivery, the customer is in principle obliged to grant us a reasonable period of grace for performance. If the grace period is not observed, the customer is entitled to withdraw from the contract. Insofar as the customer can assert that his interest in further fulfilment of the contract has ceased to exist as a result of a delay in delivery for which we are responsible, he may withdraw from the contract without setting a grace period by giving us immediate written notice. In the event of partial default, the customer may only withdraw from the entire contract if he has a justified interest in rejecting a partial delivery. Otherwise, the customer may reduce the price accordingly. (6) In cases of force majeure and other disturbing events not foreseeable at the time of conclusion of the contract (e. g. operational disruptions of all kinds, transport delays, strikes, legal lockouts, official measures, difficulties in material or energy procurement, unfavourable weather conditions as well as non-delivery, incorrect or punctual delivery by our suppliers), which we are not responsible for and which make delivery and performance considerably more difficult or impossible, we are entitled to withdraw from the contract, provided that the disturbing event is not only of temporary duration and we have not expressly assumed a procurement risk. In the event of withdrawal from the contract, consideration already rendered must be returned immediately. Section 275 (2) of the German Civil Code (BGB) remains unaffected.
(7) In the event of disruptive events of temporary duration – also within a delay in delivery – the delivery period shall be extended or the delivery date shall be postponed by the period of the disruption plus a reasonable start-up period.
(8) We will inform the customer immediately of the occurrence of a disturbing event. The customer may request us to inform whether we intend to deliver or withdraw from the contract within a reasonable period of time.
(9 Insofar as acceptance of the delivery is unreasonable in the cases of paragraph (6) due to a delay of more than one month, the customer may withdraw from the contract by an immediate written declaration to us.
(10) We shall be liable in accordance with statutory provisions insofar as the underlying purchase contract is a firm deal within the meaning of Section 286 (2) No. 4 of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB).
(11) We shall also be liable in accordance with the statutory provisions for damages insofar as the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; any fault on the part of our representatives or vicarious agents shall be attributable to us. Insofar as the delay in delivery is due to a grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(12) In accordance with the statutory provisions, we shall also be liable for damages if the delay in delivery for which we are responsible is due to a culpable breach of an essential contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(13) Claims for damages are excluded in the cases of paragraph (6).
§ 5 Transfer of risk – Packaging costs
(1) Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.
(2) Separate agreements shall apply for the return of packagings.
(3) Insofar as the customer requires, we will cover the shipment with a transport insurance; the costs incurred to this extent shall be borne by the customer.
(4) To a reasonable extent we are entitled to partial deliveries and early deliveries.
§ 6 Liability for defects
(1) Claims for defects on the part of the customer presuppose that he has complied with his duties of inspection and complaint pursuant to § 377 German Commercial Code (HGB) in accordance with the contract.
(2) Insofar as there is a defect in the purchased item, we shall be entitled to choose between subsequent performance in the form of rectification of defects or delivery of a new defect-free item. In the event of rectification of defects or replacement delivery, we shall be obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs up to the amount of the purchase price, insofar as these are not increased by the fact that the purchased item has been brought to a place other than the place of performance.
(3) If the supplementary performance fails, the customer is entitled to choose between withdrawal from the contract or a reduction in price.
(4) We shall be liable in accordance with statutory provisions insofar as the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of deliberate breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(5) We shall be liable in accordance with the statutory provisions insofar as we culpably breach an essential contractual obligation; in this case, however, the liability for damages shall also be limited to the foreseeable, typically occurring damage. Section (7) remains unaffected;
(6) Insofar as the customer is otherwise entitled to compensation for damage instead of performance due to a negligent breach of duty, our liability shall be limited to compensation for foreseeable, typically occurring damage. Section (7) remains unaffected.
(7) Insofar as we are liable on the merits, this liability – even if it is a violation of essential contractual obligations – is excluded:
(i) If, in the customer’s line of business, the customer usually insures the risk that caused the damage or hull insurance is taken out for the damaged goods as is customary in the industry; (ii) For claims for damages in addition to or instead of performance, insofar as compensation for indirect or consequential damages is demanded;
(iii) For damages that can be controlled by the customer. These exclusions do not apply in the case of liability due to gross negligence or intent on the part of our executive bodies, legal representatives or executives or insofar as we have covered the damage by a product liability insurance or liability insurance.
(8) Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability in accordance with the Product Liability Act.
(9) Unless otherwise provided for above, liability is excluded.
(10) The limitation period for warranty claims is 12 months, calculated from the date of transfer of risk. This does not apply if the purchased item is normally used for a building and has caused the defect.
(11) The limitation period in the case of a delivery recourse according to §§ 478,479 of the German Civil Code (BGB) remains unaffected; it is five years, calculated from delivery of the defective item.
§ 7 Joint liability
(1) Any further liability for damages other than that provided for in § 6 shall be excluded, irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising when entering into the contract, other breaches of duty or tortious claims for compensation for damage to property in accordance with § 823 German Civil Code (BGB).
(2) The limitation pursuant to subsection (1) shall also apply if the customer demands reimbursement of useless expenses instead of a claim for compensation for damage instead of performance.
(3) Insofar as the liability for damages against us is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
§ 8 Retention of title security
(1) We reserve title to the purchased item until receipt of all payments arising from the business relationship with the customer. In the event of breach of contract by the customer, in particular in the event of default of payment, we shall be entitled to take back the purchased item. Taking back of the purchased item by us constitutes a withdrawal from the contract. After taking back the purchased item, we shall be entitled to utilisation of the item; the proceeds from the sale shall be set off against the customer’s liabilities – less reasonable disposal costs.
(2) The customer is obliged to treat the purchased item with care; in particular, he is obliged to insure it at his own expense against fire, water damage and theft at replacement value. Insofar as maintenance and inspection work is required, the customer must carry it out in good time at his own expense.
(3) In the event of seizures or other interventions by third parties, the customer must inform us immediately in writing so that we can file a lawsuit in accordance with § 771 of the Civil Procedure Code (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of a lawsuit in accordance with § 771 ZPO, the customer shall be liable for the loss resulting by this.
(4) The customer shall be entitled to resell the purchased item in the ordinary course of business; however, he shall assign to us already now all claims in the amount of the final invoice amount (including VAT) of our claim accruing to him from the resale against his customers or third parties, irrespective of whether the purchased item has been resold without or after processing. The customer remains authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer fulfils his payment obligations from the collected proceeds, is not in arrears with payment and, in particular, as long as no petition for the opening of composition or insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we can demand that the customer notifies us of the assigned claims and their debtors, provides us with all information necessary for collection, hands over the associated documents and informs the debtors (third parties) of the assignment.
(5) The processing or transformation of the purchased item by the customer shall always be carried out for us. If the purchased item is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the item created by processing as to the purchased item delivered under reservation of title.
(6) If the purchased item is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the customer’s item is to be regarded as the main item, it shall be deemed to have been agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall keep the resulting sole ownership or co-ownership for us.
(7) The customer shall also assign to us the claims to secure our claims against him, which arise against a third party as a result of the combination of the purchased item with a property.
(8) We undertake to release the securities to which we are entitled at the customer’s request insofar as the realisable value of our securities exceeds the claims to be secured by more than 10 %; the selection of the securities to be released is incumbent upon us.
§ 9 Place of jurisdiction – Place of performance
(1) If the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, our registered office is the exclusive – also international – place of jurisdiction for all disputes arising from the contractual relationship. However, we are also entitled to sue the customer at the court having jurisdiction for his place of business.
(2) The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods.
(3) Unless otherwise stated in the order confirmation, our place of business is the place of performance.