Terms and Conditions
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General Terms and Conditions of LOBA GmbH & Co. KG, Ditzingen
All our deliveries shall be exclusively based on our following terms of business. The validity of any terms used by the purchaser is excluded, even if we do not expressly raise objection to such terms and effect the delivery without reservation. Deviations and supplements on the part of the purchaser shall only be effective with our express written confirmation; they shall only apply to the transaction for which they were agreed. In the case of regular business relations, the following terms shall also apply to future contracts, even if this is not expressly agreed in future.
1. All our prices are expressed ex works without packing, uninsured and duty unpaid plus the rate of value added tax valid on the day of delivery.
2. Deliveries for which no express price agreement has been made shall be charged in euros at the list price valid on the day of delivery.
3. if unforeseeable increases in material prices, labour costs, transport costs, taxes or levies occur between the conclusion of the contract and delivery, we shall be entitled, even in the case of an express price agreement, to undertake a price adjustment in accordance with these factors if the purchaser is a merchant. If the adjusted price exceeds the agreed price by more than 5 %, the purchaser shall be entitled to withdraw from the contract.
4. We give product information and application-related information to the best of our knowledge without thus making undertakings regarding characteristics or assuming responsibility for advising the customer. All details and information on the suitability and application of our products do not release the purchaser from undertaking checks and tests on its own responsibility regarding the suitability of the products for the intended processes, purposes and uses.
Delivery and delivery period
1. If delivery periods and dates are exceeded over and above a degree customary in the sector due to reasons for which we are responsible, then the purchaser shall be entitled to set a reasonable additional period to effect performance in writing, and if this period is not met, the purchaser may withdraw from the contract or demand damages according to Section VI.
2. The delivery period shall under no circumstances commence before the complete clarification of all details of the desired execution. The execution of deliveries presupposes the granting of all necessary permits and releases in due time as well as the receipt in due time of all documents which are to be supplied by the purchaser. If these prerequisites are not met due to reasons for which we are not responsible, delivery periods and dates shall be extended accordingly.
3. The period or date shall be regarded to be met if the operational shipment has been dispatched or collected within the agreed period or by the agreed date. If shipment is delayed due to reasons for which the purchaser is responsible, the period shall also be regarded to be met if we have notified the purchaser of the readiness for shipment within the agreed period.
4. If the non-compliance with a period or date is due to force majeure, mobilisation, war, riots, strikes, lock-outs or other unforeseeable impediments affecting our plant for which we are not responsible and which occur or become known to us after the conclusion of the contract, then the period or date shall be extended in a reasonable manner. This shall also apply in the case of unforeseeable events which have an effect on our own supplier’s plant and for which neither the supplier nor we are responsible.
5. Part deliveries are permissible.
6. If acceptance by the customer in part volumes within a specific period is agreed, then the customer – both in terms of time and volume – must undertake a roughly even distribution of the acceptance and acceptance volumes. If delivery is to be effected on call in whole or in part, then we are entitled to deliver within 4 weeks after a call has been made. If all goods have not been called within 1 year, we are entitled at our option either to withdraw from the contract or to demand immediate acceptance of all goods.
7.The volumes and weights we which supplied or shipped ex works shall be authoritative for the calculation.
8. In the case of staple goods, we reserve the right to supply goods in the original packaging.
9. In the case of production to specification, all details regarding the delivery volume are only approximations. The complete batch shall be sold. The complete batch can deviate by 10 % above or below the agreed delivery volume. Excess volumes within this tolerance limit are to be accepted and remunerated; short volumes within this limit shall nevertheless constitute our complete and due and orderly performance of the contract.
10.The mode and route of shipment shall be selected by us. Additional costs due to deviating wishes of the orderer shall be borne by the orderer.
11. We have joined the licensed collection system. We consequently do not take back sales packaging with a Green Dot. The purchaser can send back transport and secondary packaging at its own expense to the disposal company commissioned by us. This also applies to the acceptance of sales packaging. Details of the delivery depot can be obtained from us. In the case of sale to destination according to the purchaser’s instructions, our respective dispatch point is the sales point as defined by the Packaging Ordinance.
12. In the case of intra-Community deliveries, the purchaser is obliged to notify us of its ID number and also to give us the necessary other details to check the tax exemption and to provide us with the necessary documents as proof of the tax exemption. If the purchaser does not comply with these obligations in due time, we will not treat the delivery as exempt from tax. We are then entitled to additionally charge and demand the respectively incurred turnover tax. If we have wrongly undertaken a delivery on a tax-exempt basis due to false information from the customer, the customer must indemnify us against the tax liability and must bear all additional expenses.
Passing of risk
1. The shipment of our products shall be effected from our production plant or supply depot for the purchaser’s account and risk.
2. In the case of agreed collection, the risk of the accidental loss and accidental deterioration of the subject-matter of the delivery shall pass to the orderer with the notification of the readiness for collection.
3. We shall only take out transport insurance if the purchaser expressly so wishes; the corresponding incurred costs shall be borne by the purchaser.
Liability for defects to the delivery
1. All products supplied by us are to be repaired or supplied anew free of charge at our duly exercised option which show a material defect within 12 months since delivery due to a circumstance which occurred before the passing of risk. The ascertainment of such defects must be notified to us without delay in writing. Claims on account of material defects – irrespective of the cause in law – shall become statute-barred after 12 months. This shall not apply in the case of defects to a building or articles for a building if they have caused the material defect. Notwithstanding Sentence 1, the statutory periods shall similarly apply in the case of claims according to the German Product Liability Act as well as in the case of intent or intention to deceive. Replaced parts shall become our property.
2. No liability is assumed for damage due to natural wear and tear.
3. No warranty is assumed for damage which arises due to the following reasons:
- unsuitable or improper use
- in the case of excessive strain or use,
- if thinners, hardeners, additional varnishes or other substances are added by the purchaser which were not purchased from us or which were not expressly permitted by us for adding in writing.
- slight deviations to our deliveries regarding the colour shade, structure, viscosity, drying time and setting time shall not constitute a defect.
- the purchaser must check by trial use whether the supplied goods are suitable for the intended use. If no trial operation is undertaken, liability for damage to larger areas or piece numbers which could have been avoided by trial use is excluded.
4. After reaching an agreement with us, the purchaser must give us the necessary time and opportunity to undertake all repairs and substitute deliveries which we deem necessary according to our reasonably exercised discretion; otherwise we shall be released from liability for defects. Only in urgent cases of the endangerment to operational safety, which are to be notified to us immediately, or if we are in default with the rectification of a defect shall the purchaser have the right to rectify the defect itself or to have it rectified by a third party and to demand reasonable reimbursement of its costs from us.
5. Of the direct costs incurred by the repair or substitute delivery, we shall bear, provided the complaint is justified, the costs for the replacement part including shipment as well as the reasonable costs for removal and installation. In other respects, the purchaser shall bear the costs.
6. Liability for the resulting consequences shall be cancelled by any alterations or repair work undertaken by the purchaser or third parties in an improper manner without our prior authorisation.
7. Further claims of the purchaser, especially a claim to the reparation of losses which have not been directly suffered by the subject-matter of the delivery, shall only exist
- in the case of gross negligence,
- in the case of death, physical injury or damage to health,
- in the case of the culpable infringement of fundamental contractual obligations, in so far as the achievement of the purpose of the contract is threatened, regarding the typical contractual, foreseeable loss,
- in the cases in which liability is assumed according to the German Product Liability Act in the case of defects to the subject-matter of the delivery, physical injury or material damage to privately used articles,
- in the case of defects to characteristics which are expressly guaranteed, if the purpose of the guarantee was to secure the purchaser against losses which have not been directly suffered by the subject-matter of the delivery,
- in the case of defects which were fraudulently concealed or which we guaranteed did not exist.
In other respects, liability is excluded.
Purchaser’s withdrawal rights and other liability of the seller
1. The purchaser can withdraw from the contract if the complete delivery finally becomes impossible for us before the passing of risk. The same shall apply in the case of inability. The purchaser can also withdraw from the contract if in the case of ordering articles of the same nature, it becomes impossible to execute a part of the delivery in terms of numbers and the purchaser has a legitimate interest in rejecting a part delivery. If this is not the case, then the purchaser can reduce the counter-performance accordingly.
2. If default in performance has occurred and the purchaser grants us a reasonable additional period to effect performance which is not met, then the purchaser is entitled to withdraw from the contract.
3. If the impossibility occurs during the default in acceptance or on account of the purchaser’s fault, then it shall remain obliged to effect counter-performance.
4. The purchaser shall furthermore have a withdrawal right if we let a reasonable additional period granted to us for the rectification or repair of a defect for which we are responsible as defined by these terms elapse without taking action through our own fault. The purchaser’s withdrawal right shall also exist in other cases of the failure of the repair or substitute delivery on our part.
5. Further claims to the reparation of any manner of losses, namely also of such losses which have not been suffered by the subject-matter of the delivery itself, shall only exist in the cases defined in Section VI., Paragraph 7. In other respects, more extensive claims, especially to termination, a reduction of the purchase price or damages, are excluded.
Limitation of liability for other claims for damages
1. Unless otherwise stipulated in the contract or in these terms, claims for damages of the purchaser due to consequential losses caused by a defect, infringement of contractual or statutory secondary obligations, wrong or incomplete consultancy, positive breach of contract, culpa in contrahendo or tort are excluded, unless they are based on intent, gross negligence or the culpable infringement of cardinal obligations by us or our vicarious agents.
2. If we are liable for damages, this obligation shall always be restricted to the loss foreseeable at the time of the conclusion of the contract.
3. The above limitations of liability shall also apply to the personal liability of our vicarious agents or vicarious agents with respect to tortious liability.
4. Claims due to fault and positive breach of contract shall become statute-barred after the same period as the warranty rights in so far as they are based on material defects or a characteristic of the purchased article.
5. Claims due to the negligent failure to provide information on negative material characteristics of our products are excluded in so far as a material defect is not thus founded. Possible consultancy liability shall remain unaffected within the scope of Paragraph 1 above.
6. Our statutory liability according to the German Product Liability Act shall remain unaffected by the above regulations.
Invoicing and terms of payment
1. If the shipment of goods ready for shipment cannot be undertaken due to reasons which lie within the purchaser’s sphere of risk, the invoice shall nevertheless be issued and fall due.
2. If periods for payment are exceeded, we are entitled from the due time of payment to charge interest in the amount of 5 % above the base interest rate according to Article 1 of the Discount Rate Transitional Act of 9.6.1998.
3. Bills shall only be accepted by us by special agreement. The acceptance of bills or cheques shall always only be effected by way of provisional performance.
4. If the purchaser’s financial circumstances significantly deteriorate, then we are entitled to refuse further deliveries until all our claims, whether due or not, have been satisfied or security has been provided for them.
5. If the purchaser’s financial circumstances significantly deteriorate, then we are entitled to terminate all trade credits and to demand from the purchaser the immediate settlement of all outstanding trade accounts receivable. The same shall be applicable if the purchaser ceases its payments, files for the institution of insolvency proceedings, the insolvency application of a creditor is permitted and an order according to Article 21 of the Insolvency Regulations is issued or the purchaser asks its creditors for an out-of-court settlement.
6. The purchaser can only make a set-off against undisputed claims or claims which have been recognised by declaratory judgment; the same shall apply to a retention according to Article 273 of the German Civil Code due to claims which are not based on the same contractual relationship.
Reservation of title
1. The goods supplied by us shall remain our property until payment in full of all claims from the business relationship between us and the purchaser. In the case of current account relationships as defined by Article 355 of the German Commercial Code, Article 356 of the German Commercial Code shall apply accordingly to our security rights from this section.
2. The orderer is obliged to hold the goods subject to reservation of title in safekeeping and to insure them at its expense against loss and damage. It hereby assigns in advance its claims from the insurance policies to us. We accept this assignment.
3. Unless otherwise regulated hereafter, the purchaser is entitled to resell and/or to process the goods subject to reservation of title in the ordinary course of business; it is not, however, permitted to pledge or transfer the goods by way of security.
4. In the case of the processing, joining, mixing or combining of the goods subject to reservation of title with other goods or articles which do not belong to us, we shall be entitled to the thus created co-ownership share of the new article in proportion to the invoice value of the goods subject to reservation of title to the other processed goods or articles at the time of processing, joining, mixing or combining. If the purchaser acquires the sole ownership of the new article, then the contracting parties are already now in agreement that the purchaser shall grant us co-ownership of the new article in proportion to the invoice value of the processed, joined, mixed or combined goods subject to reservation of title to the invoice value of the other processed goods or articles. Direct labour costs, overheads and other imputed cost factors shall not be taken into account when calculating our co-ownership share. The purchaser is obliged to disclose to us at any time at our request the calculation of its goods input costs to determine our co-ownership share. Safekeeping free of charge of the articles subject to our co-ownership for us by the purchaser is already now agreed.
5. The purchaser already now assigns to us by way of security all claims from the resale of our goods subject to reservation of title in the amount of the purchase price agreed with us; we accept this assignment. We are only in agreement with a resale if an effective claim transfer can take place on account of the above declaration of assignment. If the goods subject to reservation of title are resold together with other goods, namely irrespective of whether without or after processing, joining, mixing or combining, then the above agreed advance assignment shall only apply in the amount of the invoice value of the goods subject to reservation of title which are resold together with the other goods.
6. In the case of contracts for work or services whose performance results in the cancellation of our reservation of title, the purchaser’s wage claim is already now assigned to us in the amount of the invoice value of the processed goods subject to reservation of title; we accept this assignment.
7. Until revoked by us, the purchaser is authorised to collect the claims assigned to us in advance for our account in its own name. The collection authority shall expire, even without our express revocation, if the purchaser does not meet its obligations towards us or suffers a financial collapse, especially if an application for insolvency proceedings is made or if it is to be feared that the collected sums cannot be paid to us. In the case of payments on account on wage claims partially assigned to us, the purchaser is obliged to set off the payment on account firstly against the part of the claim which was not assigned to us. Between us and the purchaser, always the part sum which was not assigned to us shall firstly be regarded to be paid by payments on account collected by the purchaser.
8. The collection authority does not include factoring authorisation. We are also not in agreement with the assignment of the resale or wage claims assigned to us within the scope of a non-recourse factoring agreement.
9. In the case of payments in the cheque-bill procedure, our reservation of title and security rights shall remain unaffected and shall continue to exist until our liability from the bill or cheque has ended.
10. The purchaser is obliged to inform us at any time at our request in writing of the whereabouts of our goods subject to reservation of title rights. It is obliged to inform us of other legitimate owners and of the debtors of the claims assigned to us, to notify us of all necessary information for the collection of the assigned claims, to provide us with the documents necessary for collection, especially the contractual documents and invoices, and to inform the debtor at our request at any time of the assignment. The purchaser must provide us at any time with assignment notices. It is obliged to inform us without delay of every impediment to our reservation of title rights or other securities, especially of attachments.
11. In the case of conduct contrary to the contract by the purchaser, especially in the case of default in payment with a claim from the business relationship, and also if the purchaser suffers a financial collapse, ceases its payments, an application for insolvency proceedings against it is filed or its creditors request an out-of-court settlement, we, notwithstanding our other rights, can demand the immediate provisional surrender of our property or if applicable the assignment of the purchaser’s surrender claims. The taking-back of the purchased article by us shall not constitute a withdrawal from the contract unless we expressly stated this to be the case in writing.
12. We undertake to release the securities to which we are entitled at the purchaser’s request if the value of our securities exceeds the claims which are to be secured by more than 20 %; the selection of the securities which are to be released shall be incumbent on us. If a complete assignment of the wage claim has been effected above, we shall be obliged to undertake a reassignment at the purchaser’s request if the value of the security exceeds our supply claim by more than 20 %.
Place of performance, place of jurisdiction, final provisions
1. Place of performance for all liabilities arising from this contract, especially for the payment of the purchase price, and also place of jurisdiction is Ditzingen if the purchaser is a merchant as defined by Article 38, Paragraph 1 of the Code of Civil Procedure. We are, however, entitled to raise an action at the purchaser’s domicile.
2. The law of the Federal Republic of Germany shall be exclusively applicable; the validity of the uniform UN sales law – CISG – is, however, excluded.
3. If individual provisions of these contractual terms are or become ineffective, then this shall not affect the effectiveness of the other provisions. If a part clause is ineffective, the effectiveness of the rest of the clause shall remain unaffected if it is separable in terms of contents from the part clause, is otherwise understandable on its own and a remaining meaningful regulation arises in the overall structure of the contract.
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