§ 1 Applicability
1. All deliveries, services and offers of Bavariapool Thomas Emmerichs GmbH (hereinafter referred to as Seller) to entrepreneurs (§ 14 of the German Civil Code — BGB), legal persons under public law and public law special funds take place exclusively on the basis of these general terms and conditions of business. These form part of all contracts which the Seller concludes with its contracting partner in relation to the deliveries and services offered by it, should the contracting partner be an entrepreneur (§ 14 of the German Civil Code — BGB), legal person under public law or public law special fund (hereinafter referred to as Buyer). These also apply to future deliveries, services or offers to the Principal, even if these are not separately agreed once again.
2. Terms and conditions of the Purchaser or third parties will not apply, even if the Seller does not object to their applicability in an individual case. Even if the Seller refers to a letter which contains the terms and conditions of business of the Buyer or third party (hereinafter third party general terms and conditions of business) or which relates to such, this shall not give rise to any agreement to the applicability of such third party general terms and conditions of business.
§ 2 Offer, acceptance, contractual contents and written form
1. All offers of the Seller are subject to confirmation and non-binding, unless these are expressly stated as being binding or contain a specific acceptance deadline. Orders or engagements can be accepted by the Seller within 14 days of receipt.
2. The sales agreement which is concluded in writing, including these general terms and conditions of business forms the sole basis of the legal relationships between the Seller and the Buyer. This fully reflects all agreements between the Contracting Parties in relation to the subject matter of the contract. Oral undertakings provided by the Seller prior to conclusion of this contract are not legally binding. Oral agreements between the Contracting Parties will be annulled and replaced by the written contract, unless expressly designated as being binding.
3. Additions and alterations to the agreements which have been concluded, including to these general terms and conditions of business require written form to take effect. With the exception of managing directors, the employees of the Seller are not permitted to conclude oral agreements which deviate from these provisions. In order to satisfy the written form requirement, sending by telecommunications equipment, in particular by fax or email suffices, provided that the copy of the signed declaration is sent immediately.
4. Statements provided by the Seller in relation to the delivery or service (for example weight, dimension, usage value, durability, tolerances and technical data) as well as images of the same (for example pictures and drawings) are only of an approximate nature, unless the usability for the intended contractual purpose requires a precise description. These are not guaranteed quality characteristics, but rather descriptions or labelling of the delivery or service. Deviations (for example deviations of +/- 10% in case of delivery in donning or fixed tanks) and deviations which take place due to legal regulations or which represent technical improvements, as well as the replacement of parts by equivalent components are permitted, provided that these do not impair usability for the intended contractual use.
5. The Seller reserves ownership or copyright in relation to all offers and cost quotations issued by it, as well as the drawings, images, calculations, prospectuses, catalogues, models, work tools and other documents and aids provided to the Principal. The Buyer may not make these accessible to third parties, disclose these, use or duplicate them by itself or have these used or duplicated by third parties without the express agreement of the Seller, either as such or in terms
of content. Following a request by the Seller, the Buyer must return the said objects to the Seller in full and destroy any copies which have been made, should these no longer be required in the ordinary course of business or should negotiations not lead to a contract being concluded. The saving of data provided electronically for the purpose of normal data backup is excluded from the above provision.
6. The internal and external properties of the goods are determined in accordance with the agreed specifications. In the absence of such, these are determined in accordance with the product descriptions, labelling and/or specifications of the Seller. In the absence of such, the internal and external properties of the goods are determined in accordance with standard practice and in the absence of such, in accordance with trade practices. References to norms or sets of rules,
statements in security data sheets, statements concerning the usability of the goods and statements in advertising material and conformity declarations do not represent any undertakings or guarantees. In particular, applicable identified uses in accordance with the REACH Ordinance (VO (EC) 1907/2006) do not represent an agreement concerning a corresponding contractual quality or use required in accordance with the contract.
§ 3 Prices and payment
1. The prices apply to the scope of service and delivery listed in the order confirmations. Additional or special services will be charged for separately. The prices are stated in EUR ex works. Packaging, the statutory value added tax, customs duties in case of export deliveries and fees and public duties will be charged for additionally.
2. Should the list prices of the Seller form the basis of the agreed prices and should it be intended that the delivery not take place until more than four months following conclusion of the contract, the valid list prices of the Seller at the time of delivery will apply (each minus any agreed percentage or fixed discount).
3. The prices will be calculated on the basis of quantity or weight determined by the Seller or its supplier. These quantities and weights are binding on the Buyer. Should the goods be transported at the risk of the Seller, the Buyer shall calculate the quantities or weights immediately following delivery by means of a calibrated scale.
4. Invoice sums must be paid at the time of receipt of the invoice and goods without any discount, unless otherwise agreed in writing. The date of receipt of payment by the Seller shall be decisive when determining the time of the payment. Payment by cheque or bills of exchange is excluded, unless separately agreed in an individual case. Should the Buyer not make payment on the due date, interest to the amount of 5% per annum will be payable on the outstanding amounts
from the day payment is due. The charging of higher interests and the bringing of additional damages claims in case of default remain unaffected. In case of default, the Seller will charge a fixed default fee of 50.00 EUR regardless of the above.
5. The setting off against counterclaims of the Buyer or the retention of payments due to such claims is only permitted if the counterclaims are undisputed or have been recognised by a court.
6. The Seller is entitled to only carry out or perform any outstanding deliveries or services in consideration of an advance payment or provision of security if the Seller becomes aware of circumstances following conclusion of the contract which could significantly impair the creditworthiness of the Buyer and due to which the payment of the open claims of the Seller by the Buyer under the respective contractual relationship (including in connection with other individual orders for which the same framework contract applies) is endangered.
§ 4 Delivery and delivery timet
1. Deliveries take place ex-works. Costs of downtime and waiting times will be borne by the Buyer.
2. Possible deadlines and dates stated by the Seller for deliveries or service shall always be deemed to only be of an approximate nature, unless a fixed deadline or date has been expressly promised or agreed to. Should shipping have been agreed, the delivery deadlines and delivery times are based on the time of handover to the carrier, shipping agent or other third parties who are engaged in the transportation. In case of deliveries which do not affect the operations of the Seller (drop shipments), delivery dates and deadlines shall be deemed to have been complied with if the goods leave the place of dispatch in such a timely manner that in case of normal transportation time, the delivery reaches the recipient on time.
3. The risk of transportation ex works shall also be borne by the Buyer if the delivery takes place carriage paid or free to the Buyer’s address. Should the Principal collect the goods from the delivery location, the Buyer or persons appointed by it must carry out the loading. The Buyer is responsible for complying with the statutory regulations, in particular when transporting hazardous goods. The Buyer is responsible for unloading and storing the goods. In case of transportation
in tank vehicles or donning tanks, the Buyer must ensure suitability and the proper technical state of the tank or other containers and to carry out the connection of the filling connection to the feed in system of the tank or other container either by itself or by persons appointed by it. Should employees of the Seller provide assistance with loading or tank work, they are not acting as vicarious agents of the Seller, rather they shall be the sole responsibility of the Buyer.
4. Regardless of its rights due to default on the part of the Buyer, the Seller can request an extension of delivery and performance deadlines or a postponement of delivery and performance dates from the Buyer by the amount of time in which the Buyer fails to comply with its contractual obligations in relation to the Seller.
5. The Seller shall not incur liability for impossibility of delivery or for delivery delays, should these have been caused by force majeure or other events which were not foreseeable at the time of conclusion of the contract (for example any form of operational disruption, difficulties obtaining materials or energy, transport delays, strikes, lawful blockades, lack of workers, energy or raw materials, difficulties obtaining necessary official permits, measures by the authorities or lack of
supply by suppliers or incorrect or late supply by suppliers) for which the Seller is not responsible. Should such events make the delivery or service significantly more difficult or impossible for the Seller and should the hindrance last for a significant time, the Seller is entitled to rescind the contract. In case of temporary hindrances, the delivery or performance deadlines will be extended or the delivery or performance times will be postponed by the period of hindrance plus a
reasonable start up period. Should acceptance of the delivery or service not be reasonably expected on the part of the Buyer due to the delay, it can rescind the contract by means of an immediate written declaration to the Seller. Liability of the Seller and rescission of the contract by the Buyer shall be excluded if the Buyer caused the reasons for the impossibility or delay to the delivery, in particular if the Buyer has not fulfilled its public law obligations under the REACH Ordinance (VO (EC) 1907/2006) in its respective valid version.
6. The Seller is only entitled to provide partial deliveries
- if the partial delivery can be used by the Buyer in the course of the contractual purpose of use,
— the delivery or the remainder of the goods which have been ordered is guaranteed and
— the Buyer does not incur any significant additional expenses or costs as a result, unless the Seller declares that it is prepared to assume such costs.
7. Should the Seller enter default with a delivery or service or should a delivery or service become impossible for the Seller for any reason, the liability of the Seller to pay damages is limited in accordance with § 8 of these general terms and conditions of business.
§ 5 Place of performance, delivery, packaging, transfer of risk, acceptance
1. Unless otherwise stated, the place of performance for all obligations under this contractual relationship is Olching (Geiselbullach).
2. The type of shipping and packaging is at the dutiful discretion of the Seller. Should the Seller deliver in loaned packaging, these must be sent back to the Seller within 30 days of receipt by the Buyer in an empty and proper state at the expense and risk of the Buyer. Should the Buyer fail to comply with the above obligation, the Seller is entitled to charge a reasonable fee from the 31st day and, following the fruitless expiry of a deadline for return, to request the replacement price from the Buyer, taking the above-mentioned fee into account. Labels provided on the packaging may not be ‚removed. Loaned packaging may neither be exchanged nor refilled. The use of loaned packaging as containers or their passing on to third parties is not permitted.
3. The risk shall be transferred to the Buyer at the latest at the time of handover of the object of delivery to the shipping agent, transportation company or other third parties involved in the delivery (whereby the start of the loading shall be ‚decisive). This also applies if partial deliveries take place or the Seller has also assumed other services (such as shipping, or installation). Should the shipping or handover be delayed due to reasons caused by the Buyer, the risk shall be
transferred to the Buyer on the day on which the object of delivery is ready for dispatch and this has been notified to the ‚Buyer by the Seller.
4. Storage costs after the transfer of risk shall be borne by the Buyer. In case of storage by the Seller, the storage costs, amount to 0.25% of the invoice amount of the objects of delivery being stored per complete week. The claiming and proof of further or lower storage costs remains reserved.
5. The delivery will only be insured against theft, breakage, transportation, fire and water damage or other insurable risks, by the Seller following an express request by the Buyer. The costs shall be borne by the Buyer.
§ 6 Warranty, material defects
1. The warranty period is one year from the time of delivery. This warranty period does not apply to damages claims of the Buyer connected to injury to life, body or health or intentional / grossly negligent breaches of obligations on the part of the Seller or its vicarious agents, which will be time barred in accordance with the statutory regulations.
2. The delivered objects must be immediately and carefully inspected after delivery to the Buyer or the third party appointed by it. These are deemed to have been accepted despite obvious defects or other defects which would have been recognisable in case of an immediate and careful inspection, should no written defect complaint be received by the Seller within seven working days of delivery. In relation to other defects, the objects of delivery are deemed to have been approved by the Buyer if the written defect complaint is not received by the Seller within seven working days of the time when the defect became apparent. Should the defect have been apparent to the Buyer at an earlier time in case of normal use, the earlier period of time shall however be decisive in relation to the deadline for sending the defect complaint to the Seller. Following a request by the Seller, an object of delivery in relation to which a complaint has been issued must be sent back to the Seller carriage paid. In case of a justified defect complaint, the Seller will pay the costs of the cheapest shipping route. This does not apply if the costs are increased due to the object of delivery being present at a location other than that of the use in accordance with the contract.
3. In case the delivered objects display material defects, the Seller is initially entitled and obliged, after taking a decision within a reasonable deadline, to choose between improvement or a replacement delivery. In case of failure, for example due to impossibility, unreasonableness, refusal or unreasonable delay to the improvement or replacement delivery, the Buyer can rescind the contract or reasonably reduce the purchase price.
4. Should a defect be due to fault on the part of the Seller, the Buyer can bring a damages claims, subject to the conditions in § 8.
5. In case of defects to parts of other manufacturers which cannot be corrected due to reasons connected to licensing laws or for actual reasons, the Seller can choose between bringing its warranty claims against the manufacturer and seller on account of the Buyer or assigning the said claims to the Buyer. Warranty claims against the Seller only exist in case of the other requirements and in accordance with these general terms and conditions of business if the bringing of the
claims against the manufacturer and supplier referred to above was without success or, is unlikely to lead to results due to insolvency for example. For the duration of the legal dispute, the limitation period of the warranty claims of the Buyer against the Seller concerned will be suspended.
6. The warranty does not apply if the Buyer alters the object of delivery or has the object of delivery altered by a third party without the agreement of the Seller and the correction of the defect becomes impossible or unreasonably difficult as a result. In all cases, the Buyer must bear the additional costs of correction of the defect caused due to the alteration.
7. Any agreed delivery of second hand objects in an individual case will take place to the exclusion of any warranty in relation to material defects.
§ 7 Property rights
1. In accordance with this § 7, the Seller is providing an undertaking that the object of delivery is free from commercial property rights or copyright of third parties. Both contracting partners will immediately inform the other if claims are brought against them due to breaches of such rights.
2. In case the object of delivery breaches a commercial property right or copyright of a third party, the Seller will, depending on its choice and at its expense, choose between altering or exchanging the object of delivery in such a way that third party rights are no longer infringed but that the object of delivery continues to fulfil the contractually agreed functions or obtaining the right of use for the Buyer by means of the conclusion of a licence agreement. Should the Seller be unable to do this within a reasonable period of time, the Buyer shall be entitled to rescind the contract or reasonably reduce the purchase price. Any damages claims of the Buyer are subject to the restrictions in § 8 of these general terms and conditions of delivery.
3. In case of legal breaches by the products of other manufacturers which are delivered by the Seller, the Seller will choose between bringing its claims against the manufacturers and suppliers on behalf of the Buyer or assigning these to the Buyer. Claims against the Seller only exist in these cases in accordance with this § 7 if the bringing of the claims against the manufacturer and supplier referred to above was without success or, is unlikely to lead to results due to insolvency for example.
§ 8 Liability to pay damages due to fault
1. The liability of the Seller to pay compensation, regardless of legal reason and in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contractual negotiations and unlawful acts is limited in accordance with this § 8, should fault be present.
2. The Seller does not incur liability in case of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents, unless an essential contractual obligation has been breached. Essential contractual obligations are those to deliver the object of delivery on time, free from defects of title and such material defects which significantly impair functionality and usability, as well as advice, protection and safety obligations which should allow the Buyer to
use the object of delivery in accordance with the contract, as well as the protection of body or life of the personnel of the Buyer, as well as the protection of its property against significant damage.
3. Should the Seller incur liability in accordance with § 8 Paragraph 2, the said liability shall be limited to losses which were foreseeable to the Seller at the time of conclusion of the contract as a possible consequence of a breach of contract or which the Seller should have foreseen in case of the application of care which is usual in the sector. Indirect losses and consequential losses due to defects to the object of delivery will also only give rise to a claim if such losses are typically
to be expected when using the object of delivery in accordance with the contract.
4. In case of liability for simple negligence, the obligation of the Seller to pay damages for material damage and resulting additional financial losses is limited to the sum of 10,000,000.00 EUR for personal injury, material damage and financial losses (double per person, however a maximum of 5,000,000.00 EUR in accordance with the current sum insured under the product liability insurance or liability insurance), even if this concerns a breach of essential contractual obligations. 5. The exclusion and limiting of liability above also applies to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of the Seller.
6. Should the Seller provide technical information or advice and should the said information or advice not belong to the contractually agreed scope of service owed by the Seller, this takes place free-of-charge to the exclusion of any liability.
7. The restrictions in § 8 do not apply to the liability of the Seller due to intentional behaviour, guaranteed quality characteristics, due to injury to life, body or health or liability under the German Product Liability Act (Produkthaftungsgesetz).
§ 9 Reservation of ownership
1. The reservation of ownership agreed below serves the purpose of securing all existing current and future claims of the Seller against the Buyer under the supply relationship which exists between the Contracting Partners concerning cleaning, corrosion protection, protection and maintenance materials, raw materials, packaging or accessories, including balance claims from a current account relationship which is limited to this supply relationship.
2. The goods delivered to the Buyer by the Seller shall remain the property of the Seller until all secured claims have been paid in full. The goods, as well as those which take their place in accordance with the provisions below which are subject to reservation of ownership are subsequently referred to as “goods subject to reservation of ownership”. 3. The Buyer shall store the goods which are subject to reservation of ownership for the Seller free-of-charge.
4. Should the Seller rescind the contract due to behaviour on the part of the Buyer which is in breach of contract, in particular payment default (hereinafter referred to as “enforcement event”), the Seller is entitled to request return of the goods subject to reservation of ownership.
5. The Buyer is entitled to process and sell the goods subject to reservation of ownership in the course of ordinary businessdealings until the enforcement event occurs. Pledging and provision as security is not permitted.
6. Should the goods subject to reservation of ownership be processed by the Buyer, this will take place in the name of and on account of the Seller as the manufacturer. In such a case, the Seller will acquire ownership directly or, should theprocessing take place with the materials of more than one owner or should the value of the processed item be higher than the value of the goods subject to reservation of ownership, co-ownership in the form of partial ownership in the
newly created item to the relationship of the value of the goods subject to reservation of ownership to the value of the newly created item (hereinafter value relationship). In case that no such ownership is acquired by the Seller, the Buyer hereby now assigns its future ownership or, in the value relationship referred to above, co-ownership in relation to the newly created item to the Seller as security. Should the goods subject to reservation of ownership be combined with
other items to form a unified object or should these be inseparably mixed and should one of the other objects be considered to be a principal item, then should the principal item belong to the Seller, it hereby assigns to the Buyer the co-ownership in the unified object to the value relationship above on a pro rata basis.
7. In case that the goods subject to reservation of ownership are sold on, the Buyer hereby now assigns to the Seller by means of security the claims against the purchaser — in case of co-ownership of the Seller in the goods subject to reservation of ownership, on a pro rata basis in accordance with the value relationship referred to above. The same applies to such claims which arise in place of the goods subject to reservation of ownership or which otherwise are
accrued in connection to the goods subject to reservation of ownership, such as insurance claims or claims connected to unlawful acts, in case of loss or in case of destruction. The Seller hereby authorises the Buyer in an irrevocable manner to collect the claims which have been assigned to the Seller in its own name. The Seller may only revoke this authorisation in case of an enforcement event.
8. Should third parties attach the goods subject to reservation of ownership, in particular by means of an attachment, the Buyer will immediately inform such third parties of the ownership of the Seller and inform the Seller of such, so that it can defend its ownership rights. Should the third party not be in the position of being able to reimburse the Seller in relation to the court or out of court costs incurred, the Buyer shall incur liability in relation to the Seller in respect of such costs.
9. The Seller will release the goods subject to reservation of ownership and the items or claims which arise in their place, should their value exceed the amount of the secured claim by more than 50%. The Seller shall decide which objects are to be released.
§ 10 REACH
1. Should the Buyer inform the Seller of use in accordance with Article 37.2 of the REACH Ordinance (VO (EG) 1907/2006) which makes an updating of the registration of material safety report necessary or which gives rise to another obligation in accordance with the REACH Ordinance, the Buyer shall bear all costs which are incurred in this respect.
2. The Seller shall not incur liability for delivery delays which are due to notification of the said use and the fulfilment of the obligations by the Seller which arise under the REACH Ordinance as a result.
3. Should it not be possible to include the said use as being identified due to reasons connected to the protection of health or the environment and should the Buyer intend to use the goods in such a way which the Seller has not recommended and decides not to follow the advice of the Seller, the Seller is entitled to rescind the contract.
4. In such a case, the Buyer shall not be entitled to any claims against the Seller.
§ 11 Closing provisions
1. Should the Buyer be a merchant, legal person under public law or a public law special fund or should it not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes under the business relationship between the Buyer and the Seller shall be Olching or the place of business of the Buyer, depending on the choice of the Seller. However in case of lawsuits against the Seller, Olching shall be the exclusive place of
jurisdiction. Mandatory statutory provisions concerning exclusive places of jurisdiction shall remain unaffected by the clause above.
2. The relationships between the Seller and the Buyer shall be subject exclusively to the law of the Federal Republic of Germany. The United Nations Convention dated 11 April 1980 relating to contracts governing the international sale of good (CISG) does not apply.
3. Should the contract or these general terms and conditions of delivery contain loopholes, then in order to fill these such legally effective provisions which the Contracting Partners would have agreed in knowledge of the loopholes in accordance with the economic objective of the contract and the purpose of these general terms and conditions of delivery shall be deemed to be agreed.
As of: 12.10.2017