General Terms and Conditions of Delivery and Payment of PANADUR GmbH
1. Scope of application
1.1 All delivery transactions, agreements and offers are based exclusively on the following terms and conditions of delivery and payment ("Terms and Conditions") as amended from time to time. These terms and conditions shall also apply to all future transactions between the parties, even if we do not invoke them again separately in the future.
1.2 Deviating or conflicting terms and conditions of the customer or third parties shall not apply, even if we do not separately object to their validity in individual cases or carry out the delivery of the goods in the knowledge of deviating or conflicting terms and conditions.
1.3 These Terms and Conditions shall only apply to entrepreneurs, legal entities under public law or special funds under public law within the meaning of § 310 Abs. 1 BGB.
2. Conclusion of contract
2.1 All our offers are subject to confirmation and non-binding, unless otherwise specified. The order is placed by the customer in writing by letter or fax. It may also be carried out by electronic data transmission, such as e-mail, provided that the customer can be clearly identified as the sender on the basis of current standards. We can accept orders within a period of 7 days after receipt. With acceptance the sales contract comes off. We confirm the order by sending our processing guidelines for the ordered goods, which must be observed when using the high-tech products.
2.2 If the order is placed by the customer by telephone, it shall be deemed to be bindingly agreed with the contents of the order confirmation which we subsequently issue if this order confirmation is not objected to in writing immediately after dispatch.
2.3 All amendments or supplements to the agreements made or to these conditions require a written agreement in order to be effective. With the exception of managing directors and authorized signatories, the employees of PANADUR GmbH are not entitled to make verbal agreements deviating from this. To comply with the written form, it is sufficient to transmit the signed declaration by telecommunication, in particular by fax or e-mail, provided that the copy is transmitted.
2.4 Information provided by PANADUR GmbH on the subject of the delivery (e.g. technical data) are not guaranteed characteristics, but descriptions or identifications of the delivery.
3. Prices / Payments
3.1 The prices in commercial transactions are net prices and do not include the applicable value-added tax. The price calculation and payment will be made in Euro. Additional costs due to payment in foreign currencies shall be borne by the customer.
3.2 Circumstances which occur four months after the conclusion of the contract and which significantly influence the basis of calculation in an unforeseeable manner and which lie outside our sphere of influence shall entitle us to adjust the agreed price for outstanding deliveries in an amount which exclusively takes these circumstances into account. This applies in particular to changes in the law, official measures, etc. The price adjusted in this way is based on the same calculation basis as the originally agreed price and does not serve to increase profits.
3.3 Invoice amounts are generally due 14 days after the invoice date. If payment is made within seven days of the invoice date, we grant a 2% discount. The receipt of payment is decisive.
3.4 In the event of payment after the date specified under 3.3, default interest shall be charged at the applicable statutory default interest rate (§§ 288 II, 247 BGB). We reserve the right to assert further claims for damages caused by default.
3.5 Cheques shall only be accepted on account of performance, bills of exchange shall also only be accepted on account of performance and only on the basis of an individual agreement.
3.6 The customer may only assert rights of set-off and retention with undisputed, recognized or legally established claims.
4. Delivery period
4.1 An agreed delivery period shall be deemed to have been met if, in the event that shipment has been agreed, the ordered goods have left our premises by the end of the delivery period or, in the event of collection, we have notified readiness for shipment.
4.2 If the customer still has to carry out actions or to bring about conditions without which our delivery and service cannot be provided, the delivery period shall be postponed or extended by the corresponding period in which the customer does not fulfill his obligations. In such a case, delivery dates shall be newly agreed in writing.
4.3 If we are prevented from fulfilling our obligations by circumstances of force majeure or other events not foreseeable at the time of conclusion of the contract, such as strikes, lockouts, unforeseeable operational disruptions or unavoidable shortages of raw materials or similar circumstances for which we are not responsible, we shall be released from our obligation to perform for the duration of such disruption. Agreed delivery periods shall be extended by the duration of the disruption. Claims for damages of the customer are excluded for circumstances of the aforementioned kind. However, the customer's contractual obligations are also suspended for the duration of the disruption. We shall inform the customer immediately of the beginning and end of the circumstances of force majeure within the meaning of this provision and furnish proof at the latest six months after the end of the disruption that we are not at fault for this. If the customer cannot reasonably be expected to accept the delivery due to the delay, he may withdraw from the contract by immediate written declaration to the seller.
4.4 Clause 4.3 shall not apply insofar as we are responsible for assumption, precaution or avoidance.
4.5 If the delivery is delayed due to a circumstance for which the customer is responsible, the customer shall be obliged to reimburse us for all additional expenses incurred as a result. We reserve the right to assert further claims.
5. Transfer of risk / Dispatch / Partial deliveries / Delay in acceptance
5.1 The customer shall bear the price risk as soon as the goods have been handed over to the person commissioned with the shipment or made available for collection and the customer has been informed accordingly.
5.2 Partial deliveries are permissible, unless they are unreasonable for the customer.
5.3 If the customer desires shipment by us, we reserve the right to choose the service provider.
5.4 If the customer culpably refuses to accept the goods, he is obliged to pay the seller damages amounting to 0.1% of the total net order value per working day. This obligation is limited to 10 % of the total net order value. We expressly reserve the right to make further claims. The customer is expressly permitted to prove that the damage incurred is less than the damage claimed.
6. Retention of title
6.1 We reserve title to the delivery item until receipt of all payments arising from the business relationship with the customer. The retention of title shall also extend to the recognized balance insofar as we book claims against the customer in current accounts (current account retention).
6.2 We shall be entitled to repossess the delivery item in the event of breach of contract by the customer, in particular in the event of default in payment; the customer shall be obliged to surrender the delivery item. Unless the provisions of the German Civil Code for consumer credits apply, our taking back of the delivery item does not constitute a withdrawal from the contract unless the customer has expressly declared this in writing. The seizure of the delivery item always constitutes a withdrawal from the contract. In the event of attachments or other interventions by third parties in the goods delivered under retention of title, the customer must notify us in writing if the purchase price has not been paid in full, so that we can take legal action in accordance with § 771 ZPO (Code of Civil Procedure). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable to us for the resulting loss.
6.3 The customer shall be entitled to resell and/or process the delivery item subject to retention of title in the ordinary course of business; he hereby assigns to us all claims in the amount of the final invoice amount (including value added tax) accruing to him from the resale against his customers or third parties, irrespective of whether the delivery item has been resold without or after processing. The customer is entitled to collect these claims in addition to us even after their assignment. We shall be entitled to collect the claim ourselves; however, we undertake not to collect the claim as long as the customer duly fulfills his payment obligations towards us, there is no defect in his ability to pay and we do not exercise the retention of title by exercising a right in accordance with § 6 of the German Civil Code (BGB). 6.2 claim. In this case we can demand that the customer discloses the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
6.4 If the delivery item is combined or mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery item to the other combined or mixed items at the time of the combination or mixing. If the combination or mixing takes place in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer shall transfer proportionate co-ownership to us. We hold the sole or co-ownership in safe custody for the customer.
6.5 The customer also assigns to us the claim to secure our claim against him, which accrues to him against a third party through the connection of the delivery item with a piece of real estate.
6.6 The customer shall have a claim against us for release of the reserved property if the securities exceed 120 % of the realizable value. The claim for release shall also exist if the estimated value of the goods assigned as security amounts to 150 % of the claims to be secured.
7.1 The customer is obliged to inspect the goods immediately after delivery and to notify any defects in writing. Defects notified later than three days after delivery of the goods are excluded. Hidden defects must be reported in writing immediately after their discovery, at the latest however within five working days after discovery. The notification of a defect shall be addressed exclusively to us. The dispatch of the complaint is decisive for the calculation of the deadline. The customer undertakes to keep the deliveries or partial deliveries complained of ready for inspection and inspection by us unchanged.
7.2 If a defect in the delivered goods is notified in good time, we shall have the choice between replacement delivery and reduction. If this is demonstrably unreasonable for the customer or if the replacement delivery also fails, the customer may demand the rescission of the contract or a reduction.
7.3 Warranty claims of the customer expire 12 months after delivery.
7.4 In the event of a replacement delivery, the customer shall transfer ownership of the original delivery back to us.
7.5 We shall not be responsible for the defectiveness of an item if the defect is attributable to the specification requested by the customer.
7.6 Our products are high technology products that require proper use to achieve the desired results. They must therefore always be used in accordance with our processing guidelines, which we send with our order confirmation. If the products supplied by us are used or mixed with thinners, hardeners, additional lacquers or other components contrary to the processing guidelines, the customer shall be solely liable for the resulting consequences, unless we have expressly confirmed in writing after consultation the use of our high-tech products apart from the transmitted processing guidelines. Insofar as we provide or advise technical information, this shall be done free of charge and to the best of our knowledge. All statements and information about suitability and application of the delivered goods do not release the buyer from his own tests and trials. This applies in particular if thinners, hardeners, additional paints or other components are added which have not been purchased from us.
7.7 If we have given a guarantee for a particular type of condition of the item sold over a fixed period of time, paragraphs 1, 2 and 3 of this section shall not apply.
8. Liability for damages/Exclusion/Limitation of liability
8.1 Our liability for damages, for whatever legal reason, in particular impossibility, delay, defective or incorrect delivery, due to fault at the conclusion of the contract or because of breach of contractual or statutory ancillary obligations, shall be limited in accordance with the following paragraphs.
8.2 We shall not be liable in the event of simple negligence on the part of our legal representatives, employees or vicarious agents. The above limitation does not apply to foreseeable damages due to the violation of essential contractual obligations. In such a case, however, we shall only be liable insofar as the damage was foreseeable. This excludes any liability for unforeseeable excess risks.
8.3 If we provide technical information or advice (see Section 7.6) and if such information or advice is not part of the contractually agreed scope of services owed by us, any liability shall be excluded.
8.4 The above limitation shall expressly not apply if our culpable breach of duty, that of our legal representatives, employees or vicarious agents, gives rise to liability for damages resulting from injury to life, limb or health. The above limitation shall also not apply if liability is established in accordance with the Product Liability Act, insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the item.
9.1 We shall be entitled to withdraw from the contract if, after conclusion of the contract, essential circumstances for the execution of the contract have developed without our being able to exert influence in such a way that performance becomes impossible or unreasonably difficult for us (e.g. non-delivery by the upstream supplier for which we are not responsible or the possibility of delivery only under considerably more difficult conditions).
9.2 We shall also be entitled to rescind the contract if the customer materially breaches his contractual obligations, in particular if he is accused of a breach of duty of care with regard to the handling of the goods delivered under retention of title.
9.3 Our right of withdrawal also exists in the event that the customer makes false statements about his creditworthiness. This shall also apply in particular if the customer is objectively unworthy of credit and our payment claim appears to be at risk as a result. The same applies in the event that the customer has made an affidavit.
9.4 Otherwise, our right of withdrawal and that of the customer shall be governed by the statutory provisions.
10. Choice of law / Place of jurisdiction
10.1 The contractual relations between the parties shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
10.2 The place of jurisdiction for all legal disputes arising from this contractual relationship is the Magdeburg Regional Court.
10.3 The place of jurisdiction shall also be determined in accordance with paragraph 2 if the parties have agreed accordingly after the dispute has arisen. Furthermore, the parties hereby agree that Magdeburg shall also be the place of jurisdiction in the event that the customer moves his place of residence or business or his habitual abode outside the scope of application of the German Code of Civil Procedure after conclusion of the contract, or if his place of residence or habitual abode is unknown at the time the action is filed.
11. Place of performance
Place of performance for all contractual claims is Halberstadt, unless otherwise agreed.
Halberstadt, 23 May 2019