General Terms and Conditions of Sale
General Terms and Conditions of Sale of SICC Coatings GmbH – Berlin / Germany
§ 1 General
(1) The following terms and conditions are integral parts of the contract concluded with us.
(2) Our General Terms and Conditions of Sale shall also apply in their latest version to all subsequent transactions without this having to be expressly mentioned or agreed upon at the time of their conclusion.
(3) We hereby object to any counter-confirmations, counter-offers or other references by the Buyer to his terms and conditions; any deviating terms and conditions of the Buyer shall only apply if they have been confirmed by us in writing.
(4) The buyer may only assign claims arising from legal transactions concluded with us, in particular claims due to defects, with our express consent.
§ 2 Offers; Orders
(1) Our offers are – in particular with regard to quantity, price and delivery time – always subject to change.
(2) Orders placed by the purchaser shall only be deemed to have been accepted once we have confirmed them in writing. If we do not specifically confirm in writing a contract concluded orally or by telephone, the invoice issued by us shall be deemed to be the confirmation.
§ 3 Prices
(1) Our prices are exclusive of the value added tax applicable at the time of delivery.
(2) If additional or increased charges – in particular customs duties, levies, currency compensation – are incurred between the conclusion of the contract and delivery due to changes in legal standards, we shall be entitled to increase the agreed purchase price accordingly. The same applies to investigation fees.
(3) The price list valid at the time shall be decisive for our calculation of the purchase price.
§ 4 Quantity; Quality; Labelling
(1) We are always entitled to deliver up to 5% more or less than agreed.
(2) The quality of the goods is based on commercial practice, unless otherwise agreed in individual cases or confirmed by us.
5 Shipping; Delivery
(1) The goods always travel uninsured and in any case at the risk of the buyer. This shall also apply in the case of carriage paid delivery and irrespective of the means of transport used. Transport insurance will only be taken out at the express request of the purchaser. Any costs arising from this shall be borne solely by the purchaser.
(2) In the absence of a written agreement to the contrary, we shall select the place of dispatch and the route and means of transport at our best discretion, without assuming any liability for the cheapest and fastest transport.
(3) If the buyer provides the means of transport, he shall be responsible for its punctual provision. Any delays must be notified to us in good time. Any costs arising therefrom shall be borne by the buyer.
(4) We are entitled to make reasonable partial deliveries.
(5) Our delivery obligation is always subject to timely and proper delivery by our own suppliers.
(6) Specified delivery and unloading times are always non-binding unless expressly agreed otherwise in writing.
(7) Delivery hindrances due to force majeure or due to unforeseen events for which we are not responsible, such as operational disruptions, strikes, lockouts, official directives, subsequent loss of export or import possibilities as well as our own reservation of delivery in accordance with §§ 3, 4 and 5 of the German Civil Code (BGB) shall not apply. paragraph 1 above (5) release us from the obligation to comply with any agreed delivery or unloading times for the duration and scope of their effects. They also entitle us to withdraw from the contract without the buyer being entitled to damages or other claims as a result.
(8) If an agreed delivery or unloading time is exceeded without there being an impediment to delivery in accordance with the terms of the contract, we shall be entitled to claim damages. paragraph 1 above (7), the Buyer shall grant us in writing a reasonable grace period of at least two weeks. If we culpably fail to meet this grace period as well, the buyer shall be entitled to withdraw from the contract, but not to assert claims for damages arising from non-performance or default, unless we are guilty of intent or gross negligence.
(9) Unless otherwise agreed, the goods shall be delivered concurrently with payment of the purchase price, in the case of shipment only after receipt by us of the full purchase price.
Compliance with our delivery and performance obligations presupposes the timely and proper fulfilment of the purchaser’s obligations.
(10) If the buyer is in default of acceptance, we shall be entitled to demand compensation for the damage incurred by us; the risk of accidental deterioration and accidental loss shall pass to the buyer upon occurrence of the default of acceptance.
6 Transfer of risk
The risk shall pass to the buyer as soon as the consignment has been handed over to the persons carrying out the transport or when the products have left our warehouse for the purpose of shipment.
If dispatch is delayed at the request of the purchaser, the risk shall pass to the purchaser upon notification that the goods are ready for dispatch.
§ 7 Obligation to examine and give notice of defects
(1) The Buyer shall be obliged to inspect the goods immediately upon delivery to the agreed destination or, in the event of self-collection, upon their acceptance for obvious defects that would be readily apparent to an average customer. Obvious defects also include the absence of delivery note, transport documents or similar as well as considerable, easily visible damage to the goods.
(2) This also includes deviations in the number of pieces, in the weight and in the packaging. The buyer must immediately note any complaints in this respect on the original delivery note or consignment note or on the notice of receipt.
(3) Furthermore, the purchaser shall be obliged to carry out a representative quality control at least on a random basis and, for this purpose, to take appropriate
to open packaging (cartons, bags, cans, foils, etc.) and to check the goods themselves for external condition and odour.
(4) The following forms and deadlines must be observed when giving notice of the defects described above, insofar as the notice of defect is not to be made immediately upon delivery on the delivery note, consignment note or notice of receipt:
a) The complaint must be made by the end of the working day following the delivery of the goods to the agreed destination or their acceptance. In the case of a complaint about a concealed defect which was discovered in spite of a proper initial inspection in accordance with the German Civil Code (HGB), the defect must be reported. paragraph 1 above (1) has initially remained undiscovered, a different time limit shall apply, according to which the complaint must be made by the end of the working day following the discovery, but at the latest within two weeks after delivery of the goods or their acceptance.
b) The detailed complaint must be received by us within the aforementioned deadlines in writing, by telegraph, telex or fax. A notice of defects by telephone is not sufficient. Notices of defects to sales representatives, brokers or
Agents are unremarkable.
c) The complaint must clearly indicate the nature and extent of the alleged defect.
d) The purchaser is obliged to keep the rejected goods available at the place of inspection for inspection by us, our supplier or experts commissioned by us.
(5) Complaints with regard to the number of pieces, weights and packaging of the goods shall be excluded, provided that the customer has not complained in accordance with para. (1) required note on delivery note or consignment note or receipt is missing.
As soon as the buyer has mixed the delivered goods, used them further, resold them or begun to process them, he shall be excluded from making any complaint insofar as it concerns circumstances which do not comply with the provisions of this paragraph.
regulated immediate obligation to examine and give notice of defects.
(6) Goods which have not been complained about in due form and time shall be deemed to have been approved and accepted.
§ 8 Liability
(1) Claims for damages are excluded irrespective of the nature of the breach of duty, including tortious acts, except in the case of wilful misconduct or gross negligence.
(2) In the event of a breach of material contractual obligations, the Seller shall be liable for any negligence, but only up to the amount of the foreseeable damage. Claims for loss of profit, saved expenses, from claims for damages by third parties as well as for other indirect and consequential damages cannot be demanded, unless a quality feature guaranteed by the seller has the specific purpose of protecting the buyer against such damages.
(3) The limitations and exclusions of liability in paragraphs 1 and 2 shall not apply to claims arising from fraudulent conduct on the part of the Seller, or in the case of liability for guaranteed characteristics, for claims under the Product Liability Act or damages arising from injury to life, limb or health.
(4) Insofar as the liability of the Seller is excluded or limited, this shall also apply to employees, representatives and vicarious agents of the Seller.
§ 9 Payment
(1) Our purchase price claims are in principle “net cash” and due for payment without any deduction immediately upon receipt of the invoice and/or notification of readiness for dispatch, unless a different payment term has been agreed in writing.
We are entitled to offset payments against the buyer’s older debts first, despite any provisions of the buyer to the contrary; we will inform the buyer of the type of offsetting that has taken place.
If costs and interest have already been incurred, we shall be entitled to offset the payment first against the costs, then against the interest and finally against the principal claim.
(2) We shall only accept bills of exchange or cheques on the basis of special agreements and always only on account of payment. Discount and bill charges shall be borne by the buyer and are due immediately.
(3) If the invoice amount is not settled within a maximum of 10 calendar days from the invoice date or by the other due date, we shall be entitled to charge interest on arrears in the proven amount, but at least 8% above the base rate of the ECB, without the need for a special reminder.
(4) If the purchaser is no longer able to conduct business in an orderly manner, in particular if the purchaser is seized, a protest of a cheque or bill of exchange takes place or payments are suspended or if the purchaser initiates judicial or out-of-court composition proceedings or a composition concerning the purchaser.
bankruptcy proceedings are applied for or proceedings under the German Insolvency Code are applied for, we shall be entitled to declare all our claims arising from the business relationship immediately due and payable,
even if we have accepted bills of exchange or cheques.
The same shall apply if the buyer defaults on payments to us or if other circumstances become known which make his creditworthiness appear doubtful. Furthermore, in such a case we are entitled to demand advance payments or securities or to withdraw from the contract.
(5) The Buyer shall only be entitled to set-off, retention or reduction if the counterclaims asserted by him in this respect have been legally established or expressly recognised by us.
§ 10 Retention of title
(1) The goods delivered by us shall remain our property until the Buyer has settled all claims arising from the business relationship – including balance claims from current account as well as from refinancing or reverse bills of exchange.
(2) The buyer is entitled to sell the goods delivered by us in the ordinary course of business. The authorisation granted hereunder shall expire in particular in the cases mentioned in § 9 (4) above. In addition, we are entitled to restrict the buyer’s right of sale by means of
written declaration if he is in default with the fulfilment of his obligations towards us and in particular with his payments or if other circumstances become known which make his creditworthiness appear doubtful.
(3) The restrictions of the above paragraph shall apply to the Buyer’s right to process the goods delivered by us. (2) accordingly. Through the processing, the buyer does not acquire ownership of the wholly or partially produced items; the processing is carried out free of charge exclusively for us as the manufacturer within the meaning of § 950 BGB (German Civil Code). Should our retention of title nevertheless lapse due to any circumstances, the buyer and we are already in agreement that ownership of the items shall pass to us upon processing, we shall accept the transfer of ownership and the buyer shall remain the custodian of the items free of charge.
(4) If our goods subject to retention of title are processed or inseparably mixed with goods still owned by third parties, we shall acquire co-ownership of the new items or mixed stock. The extent of co-ownership shall be determined by the ratio of the invoice value of the goods supplied by us to the invoice value of the goods delivered by us.
goods subject to retention of title at the invoice value of the remaining goods.
(5) Goods in which we hold an interest pursuant to of the foregoing paras. (3) and (4) acquire ownership or co-ownership shall apply, as well as the rights granted to us in accordance with the provisions of the German Civil Code. paragraph 1 above (1) goods delivered under retention of title, as goods subject to retention of title within the meaning of the following provisions.
(6) The purchaser already now assigns to us the claims from a resale of the goods subject to retention of title. Receivables from a resale also include the claim against the bank which has opened or confirmed a letter of credit in favour of the buyer (= reseller) in the context of the resale. We hereby accept this assignment.
If the goods subject to retention of title are a processed product or a mixed stock in which, in addition to goods supplied by us, only such items are included which either belonged to the purchaser or were supplied to him by third parties only under the so-called simple retention of title, the purchaser shall assign to us the entire claim from the resale of the goods. In the other case, i.e. in the event of a concurrence of advance assignments to us and other suppliers, we shall be entitled to a fraction of the proceeds of the sale, namely in accordance with
the ratio of the invoice value of our goods to the invoice value of the other processed or mixed goods.
(7) Insofar as our claims as a whole are secured beyond doubt by more than 125% by the assignments or reservations declared above, the surplus of the outstanding amounts or the reserved goods shall be released at our discretion at the request of the purchaser.
(8) The buyer is authorised to collect the outstanding debts from the resale of the goods. This
Direct debit authorization is not applicable if the buyer is no longer in the proper course of business as defined in § 9 (4). In addition, we may revoke the Buyer’s authorization to collect if he is in default with the performance of his obligations towards us, in particular with his payments, or other circumstances
which make his creditworthiness appear doubtful. If the authorisation to collect lapses or is revoked by us, the purchaser shall, at our request
to inform us immediately of the debtors of the assigned claims and to provide us with the information and documents required for collection.
(9) In the event of access by third parties to our reserved goods or the outstanding debts assigned to us, the purchaser shall be obliged to draw attention to our ownership/our right and to inform us immediately of any
notify. The costs of an intervention shall be borne by the buyer.
(10) In the event of conduct in breach of contract, in particular default of payment, the purchaser shall be obliged to surrender to us, at our first request, the goods subject to retention of title still in his possession and to assign to us any claims for surrender against third parties in respect of the goods subject to retention of title. The taking back or seizure of goods subject to retention of title by us does not constitute a withdrawal from the contract.
(11) In the cases of § 9 (4), we can demand from the buyer that he pay us the costs arising from the resale and which are due to us in accordance with § 9 (4). § 10 (6) to us and their debtors. We shall then be entitled to disclose the assignment at our discretion.
The buyer is obliged to return to us empties (Euro crates, pallets, containers, etc.) of the same type, quantity and value as he received them for the purpose of delivery. The empties must be returned in a cleaned condition in accordance with the hygiene regulations. If it is not possible for the buyer to return the goods to us upon delivery of our goods, he must immediately and at his own expense ensure that the empties account is balanced (obligation to bring). If the buyer defaults on the return of the empty goods, we may refuse to take back the goods after setting a reasonable period of grace and demand monetary compensation from the buyer.
§ 12 Final provisions
(1) The place of performance for the delivery of the goods is the respective place of destination.
(2) Insofar as the contractual partner is a merchant or a legal entity under public law or a special fund under public law, Berlin shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship. In the event of jurisdiction of the local court, the local court Pankow-Weißensee in Berlin shall have exclusive jurisdiction.
(3) The law of the Federal Republic of Germany shall apply, to the exclusion of applicable international law. The validity of the international sales law (CISG – UN sales law) is also expressly excluded.
(4) The invalidity of individual provisions of these General Terms and Conditions of Sale shall not affect the validity of the remaining provisions. Ineffective provisions shall be deemed to be replaced by such effective provisions as are suitable to realize the economic purpose of the omitted provisions as far as possible.
We have stored data about the buyer in accordance with the Data Protection Act.
Berlin, February 2021
SICC Coatings GmbH
13156 Berlin / Germany