General Conditions of Sale
Effective April 2018
1.0 Range of application:
1.1 All commercial relations between us and our customers are governed solely by the conditions of sale listed below, if the customer is entrepreneur, a juristic person under public law or a public-law fund asset.
1.2 Deviating, conflicting or additional conditions of the customer shall be recognized by us solely in the case that their validity has been agreed upon in writing.
1.3 Our General Conditions of Sale do not cover transactions with end users. This does not concern the regulations of retention of title as per section 5. The retention of title is agreed upon with the end user as well.
1.4 The contractual relations with our customers are subject solely to the law of the Federal Republic of Germany. The United Nations convention on the international purchase of goods shall not be applicable.
1.5 Except for an agreement to the contrary, our quotations shall be subject to confirmation.
1.6 Technical alterations, as well as changes in form, color and/or weight shall be allowed as far as they fall within the scope of acceptability.
1.7 In case the customer already knows our conditions of sale they shall be valid for future commercial relations even without the customer being informed thereof anew. Taking delivery of our goods or services shall be deemed as acceptance of our conditions.
2.0 Conclusion of contract, obligations, agreement on goods properties:
2.1 The order confirmation and/or the delivery note, specifying the item number and the item description, contains our delivery obligation and defines the contractual properties of the goods to be delivered; consideration shall be given as well to the content of the Technical Data Sheet and the Material Safety Data Sheet for the respective product. As for storage stability, application, sheen, drying times, combinability and limits of application we refer to the content of the documentation sheet and the material safety data sheet as well as the CTA brochure Chemical-Technical Working Group Hardwood Floor Finishing, Technical guide, respectively, in their current versions. If the customer lacks the respectively current version of the document sheet and the MSDS, so he finds these pieces of information in the respectively current version on the internet or he may ask us to provide them.
2.2 As to agreements on performance and properties we exclude promotional statements, booklet content except if referred thereto in the written order confirmation and/or delivery note; we further exclude public announcements by us, our employees, and sales people inclusive sales representatives.
2.3 We provide technical consultations to the best of our knowledge. Any data and information regarding applications of our goods are no agreed upon properties; they do not free the customer of his own tests and checks so as to establish the goods’ suitability for the intended processes and purposes.
2.4 This applies especially if thinners, hardeners, additional paints or other components are added which were not purchased from us.
3.0 Prices and terms of payment:
3.1 The invoice amount shall be paid without deductions by the due date. Default starts as per section 286 of the German Civil Code (BGB). If the payment is made via electronic transfer it is effected only when the money is available to us on our account on the due date. Discounts and rebates are granted only on the basis of special agreements. To deduct any discounts from new invoices is excluded if older invoices due are not yet paid. The giving of bills of exchange is not a payment; it shall be allowed as to its realization only with our prior agreement. Discounting and bill of exchange charges are to be borne by the customer.
3.2 Except as otherwise agreed on our prices are effective as per our price list applicable in the respective case; they are ex our store; customers from Germany will be charged VAT as applicable in the respective case. Customers from abroad will not be charged VAT as per the legal regulations and tax directives applicable in the respective case.
3.3 In the case that the order confirmation does not set up a deviating term of payment, default starts as per section 286 German Civil Code (BGB). We will charge interest minimum as high as the law permits (section 2 BB BGB). The user and the customer shall still be entitled to prove that the damage was bigger or smaller.
3.4 The customer may offset our claims only against undisputed or legally established counterclaims. Offsetting against disputed claims shall be excluded between us and the customer.
3.5 Cheques are only accepted subject to their validity.
3.6 In case that agreed upon payment terms are not kept we shall be entitled to demand that all our open claims be paid immediately in cash.
3.7 General nationwide net trade prices offered by our customers/distributors (e.g. through their own online shop) must not exceed a discount of 20 % on our current price list. Net trade prices offered through internet platforms such as Amazon, Ebay etc. must not exceed a discount of 5 % on our current price list. This supports the reasonable interests of business partners and manufacturer and ensures a fair and equal distribution structure. In case this regulation regarding the minimum price is disregarded, we reserve the right to revoke the discount granted for the purchase of the goods to the reseller and to invoice the difference. If the a.m. values are exceeded, the manufacturer will charge the differential amount between permitted and actual discount by way of skimming of excess profit in any case. Mutually agreed individual and local special discounts or similar activities within defined sales areas are expressly not affected and can be determined at the sole discretion of the distributor.
4.0 Periods and dates of delivery, passage of perils:
4.1 Periods and dates of delivery shall be fixed by individual agreement.
4.2 In case we are hindered in keeping the periods and dates of delivery by circumstances which are beyond our influence such as factory break-downs, delays at our suppliers, delivery infringements due to administrative measures, embargoes, strikes, force majeure or damages by natural elements afflicting us or our suppliers, we exclude that we will keep the periods and dates of delivery. Those shall be prolonged by a period equal to that during which the obstructing circumstances prevail. If for one of the causes above the delivery becomes impossible, so we and our customer free ourselves mutually from the obligations existing. A claim for indemnity in relation hereof shall be excluded.
4.3 If delivery is made in returnable containers, so these are to be sent back free of any residues, freight paid, within 90 days upon receipt of goods. Damage or loss of a returnable container, as long as these have not been given back to us, shall be borne by the customer, if they are responsible therefor. Returnable containers must not be used for other purposes or filled with other products. They are intended only for the transport of the goods delivered. Markings must not be removed.
4.4 Disposable containers will not be taken back by us; instead we will name a third company that according to the German packaging regulation will return the containers to a recycling facility.
4.5 Partial deliveries tolerable to the customer shall be allowed.
4.6 In case the parties agreed that the goods shall be picked up from us, the risk of accidental loss or accidental deterioration of the goods to be delivered shall pass to the customer upon notification of the goods’ readiness for pick-up, by transferring the goods to the forwarder. The way and route of transportation shall be chosen by us. Additional costs due to demands by the customer shall be borne by him.
5.0 Retention of title:
As seller we retain the title of the goods delivered until customer has met all payment obligations. We explicitly exclude section 449 German Civil Code (BGB). We commit ourselves to release at the customer’s demand the items pledged to us to the extent that the pledged items’ value exceeds the claims secured by more than 20 percent; the items to be released shall be determined by us. The customer may use, mix and sell the goods in an orderly and usual way. The customer is not allowed to mortgage the goods or pledge them as security. In case the goods are seized or arrested by a third party, the customer is obliged to inform us immediately. The customer already now assigns to us all claims resulting from the selling-on of the goods under retention of title; we accept this assignation. The same applies to claims resulting from service and agency contracts at the realization of which the retention of title terminates. If goods are realized in which our customer due to use, mixing or joining has a title of joint ownership, then this prior assignment covers a part of a claim as big as the invoice amount of the seller’s goods used, mixed or joined; a similar rule applies if the goods under retention of title are sold on together with other goods. In the case that the customer does not meet his obligation toward us, in particular if a payment is not effected according to contract, or if the customer runs into financial collapse, then the seller may take possession of his goods.
6.0 Failure in our performance, breach of duty, material/legal defects, liability:
6.1. It falls to the customer to immediately check the goods delivered by us as to their having the agreed upon properties, in particular as to the existence of material and legal defects; if he detects such ones he must inform us thereof within two weeks time in written form.
6.2 In case of failing in our performance or of our products not meeting agreed-upon properties we shall have the right, towards our customer, to, within a reasonable period of time, remedy the defect by, according to our choice, delivering a substitute or amending the goods. If the failure in our performance or the deviation from the agreement on the goods’ properties occurs at our customer’s place of delivery at his customer’s, so the customer must allow us the possibility to execute our right to remedy the defects.
6.3 In cases of slightly negligent breach of duty our liability shall be limited to the predictable for the individual kind of merchandise, contractually typical, immediate average damage amount. The same shall apply to cases of slightly negligent breaches of duty committed by our legal representatives or vicarious agents. Towards enterprises we shall not be liable in cases of slightly negligent breach of unimportant contractual obligations. The limitations to our liability named above do not apply to claims by the customer based on product liability. Further these limitations to our liability do not apply to damages to body and health attributable to us or to loss of life by the customer.
6.4 Claims for damages raised by the customer because of a defect come under the statute of limitations after 1 year as of delivery. This does not apply in case we are reproachable for fraud.
6.5 In the case of the entrepreneur recourse (§ 445a BGB) is presumed that at the time of the transfer of risk to the buyer defects were not present if the buyer under § VII. 2 (sentence 1) dutifully examined, but has not indicated any defects, except this assumption is incompatible with the nature of the thing or the defect.
6.6 If the buyer claims recourse, he must be treated as if he has implemented all legally permissible contractual possibilities towards his contractual partner (for example, refusal of subsequent fulfillment due to disproportionality or limitation of the reimbursement of expenses to a reasonable amount).
6.7 We are entitled to refuse recourse claims of the purchaser with the exception of claims for new delivery of the goods, provided that we grant the purchaser equivalent compensation for the exclusion of his rights. We are liable for the replacement of consequential damages only if we are (jointly) responsible for the occurrence of the defect due to intentional or grossly negligent behavior.
7.0 Warranty declarations:
7.1 The giving of a warranty needs a separate, written declaration.
7.2 A warranty declaration becomes viable only upon signature in their own hand by a managing director authorized to solely represent the company, or by a managing director authorized to jointly represent the company together with another managing director or a procuration officer.
7.3 Property definitions and performance declarations do not contain any warranty declaration. The supposition of tacit warranties is explicitly excluded.
8.0 Data protection:
8.1 For own purposes we shall be entitled to compile, save, amend, transmit and use customer data, which we have got from our customer within our commercial relation, insofar as the customer may dispose of them himself.
8.2 Consent is given by each single customer in the form of a signed customer data sheet.
9.0 Place of fulfillment and venue:
9.1 In case our customer is a merchant or a juristic person under public law or a public law fund asset, then we agree as follows:
a) place of fulfillment for all obligations inferred from the commercial relations or from a single contract is our respective place of delivery; for the payment the place of fulfillment shall be our place of business.
b) the venue is according to our choice our place of business or the general venue of the customer. This shall apply also to conflicts about deeds, bills of exchange or cheques.
10.0 Salvatorian clause:
Should one or more provisions of these Conditions of sale be invalid then the legal effect of the other provision shall not thereby be affected. The invalidity of one or more provisions of our General conditions of delivery and payment shall not cause our General conditions of sale’s becoming invalid.