General Terms and Conditions of Peter Lacke GmbH
1. The terms and conditions apply to all current and future business relationships.
Deviating, conflicting, or additional general terms and conditions will not form part of the contract, even where knowledge of them exists, unless express agreement is given to their validity.
2. Our offers are unconditional and non-binding. Orders only become binding if we have agreed to them in writing within a period of 2 weeks. Our written order confirmation is authoritative for the content and scope of the contract. Side agreements with wayfarers, commercial agents and employees as well as amendments, supplements etc. require our written confirmation.
3. For deliveries and/or services that are delayed due to unforeseen exceptional circumstances which we were unable to prevent despite exercising the appropriate diligence, as required by the conditions of the individual case (even if these circumstances occur at the sub-suppliers) such as strikes, lockout, interruption of operations, subsequent difficulties in the acquisition of materials, rejects in the case of an important work piece, an order from the authorities, etc., the delivery period is extended by the duration of the hindrance plus an appropriate start-up time to meet our operational requirements. If the aforementioned events render the delivery or performance impossible, we will be released from the delivery obligation and the customer will not be entitled to demand compensation for damages. In the case of the non-acceptance of ordered goods, we are entitled to charge 15 per cent of the value of the goods for costs already incurred and loss of profits. The customer has the right to proof that no damages were incurred or that any such damages were considerably less than the fixed amount claimed. Our deliveries may deviate from the ordered quantities by up to 10% and a maximum of 25 kg in the case of excess and short production quantities (nuances) and by up to 3% in the case of excess and short filling quantities. The clearance of all goods dispatched by us shall be at the expense and risk of the customer, with the latter also applying if carriage paid delivery has been agreed. Transportation insurance shall only be taken out at the express instruction and expense of the customer. The risk of accidental loss shall pass to the customer when the goods are handed over to the person commissioned to transport them, and at the latest when they leave our works.
4. Our prices do not include the respective statutory sales tax. This will be invoiced separately in each case. In the case of domestic deliveries and deliveries to other EU countries, the customer is obliged to pay 30 days after the receipt of the invoice at the latest. Delivery outside the EU takes place against prepayment, alternatively by LC, whereby each side has to bear the respective inland costs of the LC. The customer shall be in default after the expiry of the deadline. We reserve the right to assert further claims for damages. For the specialist production of small quantities, a price surcharge will be levied following special calculation. In the case of small orders, separate small invoice surcharges will be charged. If the delivery of goods or provision of services takes place more than 4 months after the conclusion of the contract and if the wage and material costs or the prices of our suppliers increase thereafter, we shall be entitled to increase the contractual price accordingly. If freight-free delivery has been agreed, this shall only apply to domestic deliveries and deliveries in Benelux countries and Alsace-Lorraine of at least 200 kg/l, for deliveries to other EU countries 2 t/l and to EU entry areas 5 t/l, for deliveries to CIS countries 10 t/l and for deliveries outside Europe 2 t/l fob German seaports or airports. If, in the event of the purchaser’s claim to carriage paid delivery, the shipment is not carriage paid, then only the general cargo freight excluding surface freight and freight charges for receipt shall be reimbursed in all cases. Additional costs for express freight or other surcharges shall be borne by the recipient, deliveries to addresses outside the Federal Republic of Germany shall be free to the German border and without customs duties or additional costs. The customer may offset against our claims or assert a right of retention if his or her counterclaims are undisputed or have been legally established. This shall not apply to the right of retention insofar as the customer’s counterclaims are based on defective service.
5. The rights of the customer that arise from material defects shall be limited to subsequent performance. Subsequent performance shall be effectuated at our discretion by the elimination of the defect or the delivery of a defect-free item. If the supplementary performance fails, the customer shall be entitled to withdraw from the contract, to reduce the purchase price or – in the event of our fault – to claim damages after the expiry of a grace period of 10 working days to be set. Liability irrespective of fault shall only be considered if a guarantee (Section 276, German Civil Code [BGB]) or quality guarantee (Section 443, BGB) has been expressly assumed in writing. If the customer asserts material defect claims against us on the basis of public statements that are made by us or our assistants, in particular in the advertising or the labelling of certain characteristics, the customer shall bear the burden of proof that the statement was causal for the commissioning. We are not liable for statements made in advertising statements made by third parties. The samples merely indicate the quality of the subject matter of the contract and do not constitute a warranty (Section 276, BGB) or a quality guarantee (Section, 443 BGB). Recommendations for use in word and writing based on the available experience and the current state of knowledge do not represent a quality agreed or presumed between the parties and do not release the purchaser from the responsibility to check the products for their suitability for the intended purpose or method of processing. Liability for material defects shall be excluded in any case if thinners, hardeners, additional varnishes or other components are added that have not been purchased from the supplier or from us and that have been recommended by the supplier and/or by us for such mixing. In the scope of the obligation to examine and give notice of defects according to Section 377 of the German Commercial Code [HGB], the customer shall carry out a sample processing. Defect claims of the customer shall become statute-barred within one year of the delivery of the goods. The limitation period for defect claims does not apply to claims for damages, for which liability according to Section 7 of the General Terms and Conditions is not excluded. It shall not apply to the customer’s right to withdraw from the contract if we are responsible for the defect. If the customer was obliged to take back the sold, newly produced item from a consumer or entrepreneur as a result of its defectiveness, or if the buyer of the customer has reduced the purchase price, the statutory rights of the customer shall apply in the case of defects without the limitations of the warranty rights specified in this provision with the exception of claims for damages (Section 478, BGB).
6. The delivered goods shall remain our property until the full payment of the purchase price including all ancillary claims and all claims already existing from the business relationship, as well as all future claims arising from the business relationship. The customer may neither pledge our goods nor assign them by way of security. However, s/he may resell or process them in the ordinary course of business unless s/he has already effectively assigned the claim against his or her contractual partner in advance to a third party or an assignment prohibition has been agreed. Any processing of our goods into a movable object shall take place on our behalf and with effect for us. In the event of processing with other goods that do not belong to us, we shall acquire co-ownership of the new item in proportion to the value (delivery price including sales tax without discount) of the goods delivered by us and the other goods at the time of the processing. In the event that the purchaser acquires sole or co-ownership of the new item through processing, combining, blending or mixing, s/he hereby assigns to us sole ownership or co-ownership in the ratio of the value of the goods delivered by us to the other goods at the time of processing in order to secure the fulfilment of all our claims. The customer undertakes to store the new item for us free of charge with due commercial care at the present time. In order to secure the fulfilment of our claim, the purchaser hereby assigns to us all claims arising from the resale, including all ancillary rights, to the amount of the value of our share of ownership or co-ownership with priority over the remaining part of his or her claims. In the event that the customer sells our goods (together with other goods that do not belong to us) or items manufactured from our goods or combines, or mixes our goods with another movable item and s/he acquires a claim for this which also covers his or her other services, s/he hereby assigns to us for the same claims this claim with all ancillary rights to the amount of the value of our share of ownership or co-ownership with priority over the remaining part of his or her claim. The same shall apply to the same extent to any rights resulting from the processing of our goods due to and to the amount of our total outstanding claims. We hereby accept the customer’s declarations of assignment. In the event of default on the part of the customer, s/he shall, at our request, prove these claims to us individually and inform subsequent purchasers of the assignment made, with the request to pay to us up to the amount of our total claims. We are also entitled to inform the subsequent purchasers of the assignment at any time and to collect the claim against them. In the event that the customer collects parts of the claim assigned to us, s/he hereby assigns to us his or her respective residual claim to the amount of these parts of the claim. The claim to the surrender of the collected amounts remains unaffected; the customer may neither assign his or her claim against subsequent purchasers to third parties, nor pledge it, nor agree a prohibition of assignment with subsequent purchasers. In the event of access by third parties to the reserved goods, in particular attachments or other impairments of our rights by third parties, the customer shall refer to our ownership and inform us immediately; the customer shall provide us with all documents necessary for an intervention. If the value of the objects serving as security for us and/or delivered under retention of title exceeds our total claim by more than 20%, and not just temporarily, we shall be obliged to release securities to this extent at the request of our contractual partner. The delivery prices including sales tax without cash discount deduction shall be decisive for determining the amount of security. Upon full payment of all our claims arising from the business relationship, the ownership of the reserved goods shall pass to the customer. The customer immediately acquires the claim which s/he has assigned to us to secure our claims in accordance with the above provisions.
7. Claims for damages against us are excluded irrespective of the legal grounds (impossibility, delay, defective performance, breach of contractual ancillary obligations, other obligations arising from the contractual obligation and tort). This does not apply:
– for damages from injuries to life, body or health
– for other damages, if
a) these are based on an intentional or grossly negligent breach of duty by us or one of our executive employees,
b) an essential contractual obligation (cardinal obligation – in particular a key contractual obligation) has been breached,
c) obligations not covered by b) have been breached intentionally or through gross negligence by simple vicarious agents. In cases b) and c), the amount of liability is limited to the typical foreseeable damage. Insofar as liability has been excluded or limited in Sections 1 and 2, this shall also apply to the personal liability of employees, workers, staff, representatives and vicarious agents. The above exclusion of liability does not apply to claims under the German Product Liability Act. Insofar as the customer, instead of compensation for damages instead of performance, demands compensation from us for the expenses which s/he has incurred in reliance on the receipt of performance (Section 284, BGB), such expenses are limited in amount to those expenses that a reasonable third party would have incurred. The customer is only entitled to withdraw from the contract in the event of a breach of duty on our part which does not consist of defective performance if we are at fault.
8. The assignment of claims to which the customer is entitled against us from the business relationship is excluded, with the exception of monetary claims in terms of Section 354 a, HGB. The place of performance for all deliveries and payments is Herford, Germany. The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship, including actions on bills of exchange and cheques, is Herford. These terms and conditions and the entire legal relationship between the contracting parties shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods. Should individual provisions of our terms and conditions or the provisions within the scope of other agreements be or become void or ineffective, this shall not affect the effectiveness of any other provision or agreement.