§ 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