General Terms and Conditions of Sale
I. Area of Application
1. Our deliveries and services are exclusively subject to these Terms and Conditions of Sale. We reject any terms and conditions of the customer referred to by the customer. Our offers may be revoked until accepted.
2. If our General Terms and Conditions of Sale are already known to the customer,they shall apply to future transactions even without the customer being notified thereof again. Acceptance of our deliveries or services shall be deemed to be acknowledgement of our Terms and Conditions.
3. The following clauses shall not be applicable to consumers:
Article I, paragraph 2 (application to future transactions)
Article II, paragraphs 1 and 2 (turnover tax, price adjustments)
Article VI, paragraph 2 (extension of the reservation of title to claims arising out of the on-going business relations) Article VII, paragraphs 2 and 4 lit. b) (duty to carry out an inspection, limitation of liability to foreseeable damage)Articles VIII, paragraphs 1 and 2 (place of performance, jurisdiction)
Consumers for the purposes of these Terms and Conditions shall be natural or legal persons or partnerships with legal personality with whom/which business relations are entered into and to whom/which a trade or independent professional activity cannot be attributed.
Entrepreneurs for the purposes of these Terms and Conditions shall be natural or legal per-sons or partnerships having legal personality with whom/which business relations are entered into and who/which act in pursuit of a trade or an independent professional activity.
1. The agreed prices shall be plus the statutory rate of turnover tax prevailing on the date of delivery.
2. If order-related costs substantially change after the conclusion of the contract, the contracting parties shall agree on an a price adjustment.
1. Deliveries shall be effected ex works (EXW, Incoterms 2000). The risk of accidental loss and of accidental deterioration of delivery items shall pass to the customer upon notification of the making available of the delivery items. Otherwise the risk shall pass when we deliver the goods into the custody of the carrier. We shall choose the mode of dispatch and routing. Any additional expenses incurred as a result of requests of the customer for a different mode of dispatch or routing shall be for his account.
2. In the event of a different supply agreement being expressly made, the Incoterms 2000 shall apply to the interpretation of trade terms such as EXW, FOB, CPT, DDU, etc.
3. Part deliveries that can be reasonably expected of the customer shall be permitted.
4. Significant, unforeseeable interruptions of operations, exceeding of deliveryterms or non-delivery by our suppliers as well as interruptions of operations owing to a scarcity of raw materials, energy or labour, strikes, lockouts, difficulties in procuring means of transport, disruptions of traffic, government orders and events amounting to force majeure which affect us and our suppliers and for which we are not responsible shall prolong the time of delivery by the period of obstruction in performing the contract, to the extent that such events are of consequence to our ability to deliver the goods. We shall notify the customer of the com-mencement and end of such obstructions without delay. If the delivery is delayed by more than one month as a result, both the customer and we shall be entitled, to the exclusion of damage claims, to rescind the contract with regard to the quantity affected by the interruption in deliveries.
5. If the goods are delivered in loan-containers, these shall be returned carriage paid within 30 days of receipt of the consignment after being completely emptied. The customer shall be liable for any loss of and damage to a loan-container if such loss or damage is his fault. Pack-aging lent to the customer may not be used for other purposes or to package other products. It is intended solely for transporting the delivered goods. Markings may not be removed.
6. We shall not take back non-returnable packaging; in the area to which the German Packaging Ordinance (Verpackungsordnung) applies, we shall give the customer the name of a third party who will arrange for the packaging to be recycled in accordance with said Ordinance.
1. The amount of invoice shall be payable on the due date without deduction. Payment shall have been made on time only if the money is made available for our free disposal on the ac-count named by us by the due date. Discounts shall be allowed by special agreement only. Deductions of discounts shall be excluded to the extent that former bills payable have still not been settled.
2. In the event of a term for payment being exceeded, interest of 8 % above the base lending rate of the European Central Bank (ECB) shall be payable without any reminder being re-quired. If the customer is a consumer, the statutory provisions under §§ 286 et seq. of the German Civil Code (BGB) shall apply.
3. Payment by means of a bill shall not be permitted unless otherwise expressly agreed. Where payment by means of a bill is agreed, the bill shall be issued on account of payment; discount and bill charges shall be for the customer's account. The Uniform Customs and Practice for Documentary Credits issued by the International Chamber of Commerce in Paris as last amended shall apply to payment by letter of credit.
4. Retention and offset in respect of claims of the customer contested by us shall be excluded unless such claims have been recognized by declaratory judgment.
5.Failure to pay invoices when due or other circumstances indicating that the customer's finan-cial circumstances have deteriorated substantially after the conclusion of the contract shall entitle us to call due immediately all our claims based on the same legal relationship.
V. Rendering of advice on application technique
1. We shall render advice on application technique to the best of our knowledge. Any information about the suitability and application of our goods shall not exemptthe customer from carrying out inspections and tests of his own to determine the suitability of the products for the intended operations and purposes.
2. This shall particularly apply if dilutions, hardeners, additives or other components which were not purchased from us are added to the goods.
VI. Reservation of title
1. We shall reserve title to the delivered items until the purchase price has been paid in full.
2. The delivered goods shall remain our property until all claims arising out of the current busi-ness relations with the customer have been satisfied. We shall continue to reserve title even if our claims are partly included in outstanding accounts and the balance is struck and accepted.
3. Any processing or mixing of the goods shall be carried out by the customer on our behalf without, however, obligating us. In case the goods are processed or mixed with other articles not owned by us, the customer herewith already transfers to us, to secure our claims, co-ownership of the new article in the same proportion as the value of the reserved goods bears to the other processed articles subject to the proviso that the customer shall hold the article in safekeeping for us free of charge.
4. The customer herewith already assigns to us by way of security claims arising out of the sale of goods in which we have an ownership interest, in the same proportion as that of our ownership interest in the sold goods. In case the customer combines or mixes the delivered goods with a main article of third par-ties for consideration, he herewith already assigns to us by way of security his claims for remuneration against the third party up to the amount of the invoice value of the delivered goods. We accept this assignment.
5. At our request the customer shall give us all the necessary information about the stock on hand of goods owned by us and about the claims assigned to us and notify his customers of the assignment.
6. The customer is obliged to hold the reserved goods in safekeeping and to insure them against loss and damage at his expense. He hereby assigns his claims arising out of the insurance contracts to us in advance. We accept this assignment.
7. If the value of the securities exceeds our claims by more than 20% we shall release securities at our choice on the same scale at the customer's request.
8. The customer is entitled to dispose of the goods to which we have reserved title in the ordi-nary course of business and to collect the claims assigned to us. These rights shall cease as soon as he does not perform on time his obligations arising out of the business relationship with us, stops making payments and/or his financial position deteriorates. If such events occur, we shall be entitled to demand the immediate, temporary return of the entire goods to which we have reserved title, to the exclusion of the right of retention, without fixing a final deadline or rescinding the contract.
9.If the reservation of title is not valid under the laws of the country in which the delivered goods are located, the customer shall provide equivalent security at our request. If the customer does not meet this request, we may demand immediate payment of all outstanding in-voices irrespective of agreed terms for payment.
VII. Warranty and liability
1. The statutory warranty periods shall be applicable.
2. The customer shall examine the delivered goods to determine whether they are suitable for the intended use, if necessary by way of a trial processing. This particularly applies if com-ponents not purchased from us are mixed with the delivered goods.
3. In the event of a justified notice of defects the customer may only demand that substitute goods be delivered. If the substitute delivery is abortive, the customer shall be entitled to demand, at his option, a rescission of the contract or a reduction of the amount of consideration payable.
4a. The amount of any damage claims of the customer shall be provided for by law if the damage was caused by intentional or grossly negligent conduct or by a negligent infringement of an essential contractual duty. Otherwise, liability shall be excluded. Damage claims under the German Product Liability Act (Produkthaftungsgesetz) remain unaffected.
4b. Compensation for consequential damage caused by a defect shall be limited to the fore-seeable damage typical of the contract.
4c. Limitations of liability shall also apply to personal liability of our vicarious agents.
5. Liability for warranted characteristics and for default and impossibility are not limited by the above provisions. Warranties must be given in writing.
6. If components not purchased from us are mixed or used with the delivered product, we shall give a warranty only to the extent that we are responsible.
VIII. Jurisdiction, place of performance, miscellaneous
1. The place of performance for all liabilities arising out of the business relationship or out of the individual contract shall be our respective place of dispatch, and for payments our business seat.
2. At our option, the courts of Hamburg or the courts at the customer's place of generaljurisdiction shall have jurisdiction. This also applies to disputes in proceedings restricted to documentary evidence, proceedings based on a bill of exchange or chequeproceedings.
3. These General Terms and Conditions of Sale and the contractual relations based thereon shall be exclusively governed by the laws of the Federal Republic of Germany. The UN Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG "Vienna Sales Law") shall not be applicable.
4. We shall store and process data of the customer to the extent required to execute the contract properly.
In the event that individual provisions of the contract with the customer, including these General Terms and Conditions of Sale, are or become invalid, the validity of the other provisions shall not be affected thereby. The wholly or partly invalid provision shall be replaced by a provision which comes as close as possible to the economic intent behind the invalid provision.
ELANTAS Europe GmbH Business seat of the company: Hamburg Registry court: Local Court (Amtsgericht) of Hamburg Registration number: HRB 66822