General Terms and Conditions.
General Terms and Conditions of Delivery and Payment of PANADUR GmbH
1. Scope of application
1.1 All delivery transactions, agreements and quotations in commercial business dealings shall exclusively be based on the following terms and conditions, as amended at the time in question, even if we no longer make any express reference to them in future. By placement of the order or acceptance of the delivery or payment, as the case may be, Customer declares its agreement with their validity.
1.2 The terms and conditions shall apply even if Customer notifies its own General Terms and Conditions of Business deviating from the present terms and conditions or has provided them on correspondence. They shall only become contents of the contract with our express consent or that of the persons acting on our behalf.
1.3 All amendments or supplements to the present terms and conditions shall require written agreement. This shall also apply to a cancellation of the requirement of written form itself.
2. Conclusion of contract
2.1 The order shall be placed by Customer in writing per letter or telefax. It can also be made by electronic data transmission, for example by e-mail, to the extent that the client can unambiguously be identified as the sender by using customary standards. We shall confirm the order with transmission of our processing guidelines for the goods ordered, which shall be complied with in the application of the high technology products.
2.2 If the order is placed by telephone by Customer, it shall be deemed binding with the contents of the order confirmation following from us if said order confirmation is not challenged in writing without delay after dispatch.
3. Prices / payments
3.1 The prices in commercial dealings shall be net prices and shall be understood excusive of the turnover tax valid at the time in question. Price calculation and payments shall be in Euro. Additional costs as a result of payment in foreign currencies shall be borne by Customer.
3.2 Circumstances occurring four months after the conclusion of the contract considerably influencing the foundation of calculation in an unforeseeable way and outside our sphere of influence shall entitle us to adapt the agreed price to an amount exclusively taking said circumstances into due account. This shall in particular apply to changes in law, official measures etc.. The price adapted in this way shall be based on the same foundation of calculation as the one originally agreed and shall not serve to increase profits.
3.3 As a matter of principle, invoice amounts shall be due for payment 14 days after the invoice date. In the event of payment within seven days of the invoice date, we shall grant 2% discount. Receipt of the payment shall be decisive.
3.4 With payment after the time stated in sub-section 3.3, default interest to the amount of 8 percentage points per annum above the basic rate of interest (§§ 288 II, 247 German Civil Code) shall be charged. We reserve the right to claim further damage from arrears.
3.5 Cheques shall only be accepted on account of payment. Bills shall likewise only be accepted on account of payment and only on the basis of individual agreement.
3.6 Customer can only claim rights to offset and retention with undisputed, acknowledged or legally established claims.
4. Delivery period
4.1 An agreed delivery period shall be deemed complied with if the ordered goods have left our house or we have notified readiness for dispatch by its expiry.
4.2 If Customer still has to take actions or fulfil prerequisites without which our delivery and service cannot be rendered, the delivery period shall be postponed or extended by the same period. In such a case, delivery dates shall be re-agreed in writing.
4.3 If we have been prevented from fulfilling our obligations by circumstances of force majeure which were unforeseeable at the conclusion of the contract, for example strikes, lock-outs, unforeseeable interruptions of operation or unavoidable shortages of raw materials or similar circumstances for which we are not answerable, we shall be exempted from our duty to performance for the duration of the interruption. Agreed delivery periods shall be extended for the duration of the interruption. Customer's claims to damages have been ruled out for circumstances of the aforementioned kind. However, Customer's contractual obligations shall also be suspended for the duration of the interruption. We shall notify Customer of the start and end of the circumstances of force majeure in the sense of this directive without delay and render proof that we are not culpable no later than six months after the end of the disturbance.
4.4 4.3 shall not be applicable to the extent that culpability in take-over, provision or aversion can be ascribed to us.
4.5 If delivery is delayed due to a circumstance for which Customer is answerable, it shall be obliged to reimburse us for all additional expenditure resulting therefrom.
5. Passage of risk / dispatch
5.1 Customer shall bear the price risk as soon as the goods have been handed to the person commissioned with dispatch.
5.2 Part deliveries shall be admissible to the extent that they can be reasonably expected of Customer.
5.3 If Customer wishes dispatch by us, we reserve the right to select the service company.
5.4 Insofar as Customer culpably rejects acceptance of the goods, it shall be obliged to pay the vendor damages to the amount of 0.1% of the total net order amount per working day. Said obligation shall be limited to 10% of the total net order amount. Our claims exceeding this shall remain expressly reserved. Customer shall expressly be allowed to render proof that lower damages than those claimed are actually incurred.
6. Retention of title
6.1 We reserve title to the object of delivery until receipt of all payments from the business relationship with Customer. The retention of title shall also extend to the acknowledged balance to the extent that we book receivables against Customer onto current account (current account reservation).
6.2 In the event of breach of contract by Customer, in particular in arrears in payment, we shall be entitled to take the object of delivery back; Customer shall be entitled to hand it over. To the extent that the provisions of the German Civil Code for consumer credits are not applicable, taking back the object of delivery by us shall only represent withdrawal from the contract if Customer expressly declares it in writing. Pledging of the object of delivery shall always represent withdrawal from the contract. In pledging or other interventions of third parties, Customer shall notify us in writing so that we can initiate proceedings according to § 771 Code of Civil Proceedings. To the extent that the third party is not in a position to reimburse us for the extra-judicial costs of initiation of proceedings according to § 771 Code of Civil Proceedings, Customer shall be liable towards us for the losses incurred.
6.3 Customer shall be entitled to resell the object of delivery in ordinary business dealings; it here and now assigns all receivables to the amount of the final invoice value (including turnover tax) accruing to it against its customers or third parties from the resale to us, regardless of whether the object of delivery has been resold without or following processing. Customer shall be entitled to collect said receivable even after its assignment. We shall be authorised to collect the receivable ourselves; however, we engage not to collect the receivable as long as Customer properly complies with its payment obligations and does not fall into arrears of payment. In such a case, we can demand that Customer notifies the assigned receivables and their debtors, gives all information necessary for the collection, hands over the pertinent documents and notifies the debtors (third parties) of the assignment.
6.4 If the object of delivery is combined or blended with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of delivery to the other combined or blended objects at the time of the combining or blending. If the blending or combining is done in such a way that Customer's object is to be regarded as the main object, it shall be deemed agreed that Customer assigns co-ownership to us pro rata.
6.5 We shall keep the sole or co-ownership on Customer's behalf. Customer shall also assign the receivable accruing to it against a third party from the combination of the object of delivery with a real estate in order to secure our claims against it.
6.6 Customer shall have a claim towards us for release of the conditional commodities if the securities exceed 110% of the realisable value. The claim to release shall further exist if the estimated value of the goods transferred by way of security amounts to 150% of the receivables to be secured.
7. Purchaser's rights from defects
7.1 Customer shall be obliged to examine the goods without delay after receipt and to notify defects. Notification of defects reported more than three days after delivery of the goods shall be ruled out. Hidden defects shall be notified by recorded delivery without delay after discovery, albeit after no more than three days. Notification of a defect shall exclusively be addressed to us. Customer engages to keep the deliveries or part deliveries giving rise to complaint available for us for inspection and examination without change.
7.2 If a defect in the delivered goods has been notified in good time, we shall have the choice between replacement delivery and reduction of the price. If this can be proven not to be reasonable for Customer, it can demand cancellation of the contract.
7.3 Customer's claims to subsequent performance shall be barred by limitation 12 months after delivery.
7.4 In the event of replacement delivery, Customer shall assign ownership of the original delivery back to us.
7.5 We shall only be liable for damage resulting from the defectiveness of the object if this is to be put down to a grossly negligent breach of duties caused by us or by our legal representatives or our vicarious agents. We shall further not be answerable for the defectiveness of the object if the defect is to be put down to the specification required by Customer.
7.6 The above limitation shall expressly not apply to the extent that a liability for damage from an injury to life, limb or health is substantiated as a result of our, our legal representatives' or our vicarious agents' culpable breach of duties.
7.7 Our products are high technology products requiring proper application in order to achieve the required results. Therefore, they are always to be used according to our processing guidelines (technologies), which we transmit with our order confirmation. If the products supplied by us are used or mixed with diluters, hardeners, additional lacquers or other components as a breach of the processing guidelines, Customer alone shall be liable for the consequences resulting therefrom, to the extent that we have not expressly confirmed a use of our high technology products outside the transmitted processing guidelines in writing following consultation.
7.8 To the extent that we have assumed a guarantee for a certain kind of property of the object sold for a certain period, sub-sections 1, 2, 3 and 6 of this section shall not be applicable.
7.9 Claims according to the Product Liability Act shall remain unaffected.
8. Exclusion / limitation of liability
8.1 All other claims to damages, regardless of the nature, in particular those on account of culpa in contrahendo or a breach of contractual or statutory subsidiary duties can only be made by Customer if they are to be put down to an at least grossly negligent breach of duty by us, our statutory representatives or vicarious agents.
8.2 The above limitation shall not apply to foreseeable damage on account of a breach of cardinal contractual duties. In such a case, however, we shall only be liable to the extent that the damage was foreseeable. This shall rule out liability for unforeseeable excess risks.
8.3 The above limitation shall expressly not apply to the extent that a liability for damage from an injury to life, limb or health is substantiated as a result of our, our legal representatives' or our vicarious agents' culpable breach of duties.
9.1 We can withdraw from the contract if, following conclusion, circumstances essential for the handling of the contract have developed without our influence in such a way that performance becomes impossible or unreasonably more difficult for us (e.g. non-delivery by the downstream supplier for which we are not answerable or possibility of delivery only under considerably more difficult conditions).
9.2 We shall further be entitled to withdraw if Customer considerably breaches its contractual duties, in particular if a breach of the duty to care with a view to dealing with conditional commodities can be claimed against it.
9.3 Our right of withdrawal shall also exist in the event of Customer giving false information about its creditworthiness. This shall in particular apply if Customer is objectively not creditworthy and thus our claim to payment appears jeopardised. The same shall apply in the event of Customer having made an affidavit in bankruptcy or similar proceedings.
9.4 Apart from this, our and the customer's right to withdrawal shall be based on the statutory directives.
10. Choice of law / place of jurisdiction
10.1 The contractual relationship between the parties shall exclusively be governed by German law. UN purchasing law shall not be applicable.
10.2 The place of jurisdiction for all legal disputes arising from the contractual relationship shall be Magdeburg Regional Court.
10.3 The place of jurisdiction shall further be based on subsection 2 if the parties have agreed accordingly after origination of the dispute. Further, the parties here and now agree that, in the event of Customer moving its place of residence or headquarters or its customary abode outside the scope of application of the German Code of Civil Proceedings after conclusion of the contract or its place of residence or customary abode not being known at the time of initiation of proceedings, Magdeburg shall also be the place of jurisdiction.
11. Place of performance
Place of performance for all contractual claims shall be Halberstadt.
As of June 22nd 2011.