General Business Conditions of CMR Coatings GmbH
Version: 29th January 2016
All contracts and deliveries are affected exclusively on the basis of the following conditions. Provided that there is a single case where other conditions shall be effected – especially buying conditions of the customer – our explicit written confirmation is required. The delivery of goods does not include the acceptance of the buyer´s business conditions. On the other hand the buyer accepts our conditions by the receipt of goods.
I. General
1. Our offers are without obligation. Orders are only mandatory when they are confirmed in writing or when we start to produce. The same applies to modifications, supplements and verbal subsidiary agreements.
2. Agreed delivery times and dates will be observed wherever possible, they are considered as rough indication and not as a binding promise. At delay in delivery the customer is able to set a reasonable final deadline and to withdraw from the contract after the inefficient expiration of this term. Damages for non-performance can only be claimed by the customer, if the delay in delivery is caused by deliberate or reckless behavior of our legal representative or one of our vicarious agents.
3. In the case of deliveries, which do not touch our plant(drop-shipping) delivery dates and –periods are observed when the goods leave the plant of the contract manufacturer or of our pre-supplier.
4. Partial deliveries as well as deliveries of excess quantity or shortfalls up to 10% are reserved. As far as major tolerances are usual in trade for certain goods, quantity variances within this limit are contractual. Quantity deviations will be considered appropriately in the invoice.
5. Increases of customs duties, taxes and other charges which occur after contract closing are for the customer’s account.
6. Force majeure incidences, restrictions regulated by public law like strike and lockout, do entitle us to postpone the delivery for the period of interference or to withdraw in whole or in part from the contract, without being obliged to compensation. The same applies to unexpected other circumstances, which prevent, delay or complicate the manufacture or the dispatch of the goods, particularly energy shortfall or raw material scarcity. Sale and delivery of the goods shall be subject to correct and punctual supply to ourselves. In case of partial or complete drop out of our sources of supply we are not obligated to stock up on other pre-suppliers.
II. Prices
All prices are to be understood EXW (Incoterms 2000) plus national legal VAT or comparable foreign tax valid on the date of delivery or other kind of service. Should there be a general increase of prices between contract closing and delivery the customer is entitled to withdraw from the contract within a period of 2 weeks after notice of the increase of price. This right of withdrawal does not apply to long-term delivery contracts.
Prices in offers and invoices refer to standard trading units. For small quantities, custom-made articles as well as for requested deviation from the standard trading units we charge a surcharge according to the explanations to the general terms and conditions.
III. Payment
1. All prices are exclusive of VAT. Price calculation is made on the basis of the quantities and weights noted by our supplier or by our contract manufacturer.
2. Invoices are payable immediately net cash unless otherwise agreed. If the customer is behind schedule with payment, the enforcement of a further claim is reserved.
3. Checks are only considered as payment when they are cashed. Incidentally they are just accepted on account of performance. Expenses will be charged to the customer. As far as base rates are agreed with the customer, we are entitled to make an adjustment, if the change of the rate is announced by the Deutsche Bundesbank in the Federal Gazette.
4. The customer is allowed to count up our accounts receivables only with undisputed accounts or accounts that are established as final and absolute. In case of a letter of complaint the customer isn’t exempted from payment, unless the letter of complaint is accepted by us; accounts receivables that are caused by contracts with no context to the rejected delivery have to be paid in any rate.
IV. Delay of payment and doubts about credit rating
Delay of payment starts with the due date of the claim. At delay in payment we are entitled to charge default interest of 8% above the base interest rate. The assertion and the evidence of a higher or lower damage is reserved for the seller as well as for the customer.
At delay in payment all open accounts immediately become due for payment. All given reductions, bonuses, discounts and other allowances become invalid. Additionally we reserve the right to withdraw from the existing contracts. We reserve the same right also, if we come to know circumstances, which let us doubt the customer´s solvency (creditworthiness, insolvency application, customer exceeds his line of credit by calling off goods, nonpayment of due invoices, etc.)
Moreover we are entitled to demand cash payment before further deliveries, as well as to withdraw from the contract after the expiry of a reasonable final deadline or to demand comprehension for non-performance. If the customer, despite of appropriate request, is not content to pay in advance or to provide a suitable security for the performance that he is responsible for, we are entitled to withdraw from the contract so far as we have not yet delivered.
V. Delivery
1. The risks of transport ex point of delivery are always for the customer’s account, also with deliveries, which are carriage free resp. free delivery, except of those deliveries where we carry out the transport by our own vehicles from our plant or warehouse. Unloading and warehousing the goods is always at the customer’s risk.
2. It falls to the customer or rather his agent to load the transporting vehicle and to regard the legal regulations of the carriage of dangerous goods, if he collects the goods from the point of delivery.
3. As far as our employees help with the loading or unloading, they act at buyer´s risk and not as our vicarious agent; we do not assume liability for any damages caused by that.
4. All settlements concerning transport also apply to the delivery by third transportation company, as far as there could be deducted a liability of the seller from their behavior, the liability of the third party will remain unaffected thereof.
5. Increase of carriage charges after contract closing as well as additional costs which arise by obstruction or delay of transport due to circumstances beyond our control, are to be charged to the debit of the customer. If we take goods back in whole or in part, the customer bears the costs thereby incurred, no matter what the reason for the redemption of the goods is.
6. If the delivery occurs in returnable containers, they have to be sent back within 30 days after receipt of delivery completely emptied and freight paid. Loss or damage of returnable containers is at customer´s charge, if he is responsible for the loss or damage. Returnable containers must not be used for other purposes or be filled with other products. They are only destined for the transport of the delivered goods. Labels must not be removed.
7. We do not take back disposable packaging; corresponding to the packaging regulations we name a third party to the customer who recycles according to the packing regulations.
VI. Condition of goods, application and processing
1. Only the condition of goods which are described in the product descriptions, specifications and labeling of the seller or which are contractual regulated, count as condition of the goods. Public statements, promoting or advertising statements of the seller, as well as applications, that are identified relevantly according to the European Chemicals Directive REACH neither represent quality details nor describe an application in accordance with the contract.
2. Characteristics of samples and patterns are only binding as far as the quality of the goods has been explicitly agreed.
3. Statements regarding the quality and shelf life or other declarations will only count as guarantee when explicitly agreed and specified.
VII. Application-specific consulting
As far as we render consultancy service, we do this in all conscience. All statements regarding suitability and applications of the delivered goods are non-binding and do not release the customer from own tests and experiments. The same particularly applies to the fact when the customer mixes our product with dilutions, hardeners, additive lacquers or other components, which have not been sourced from our company.
VIII. Defects liability – buyer’s duties
1. We are liable for material defects, including the absence of guaranteed quality, against merchants and corporate bodies under public law conformable to legal regulations; at our option either by redhibitory action, reduction or replacement delivery. We are liable if the following requirements, beside the legal requirements, will be fulfilled:
a) The customer has to examine the goods and the packaging immediately on delivery for sort, quantity and quality, according to customary conventions. If the goods are delivered in packages, the customer additionally has to check every single label of the packages for compliance with the order.
b) If the customer finds material defects, he has to inform us about them within 8 days after receipt of the goods in writing or by telex.
c) If the buyer refrains to examine the goods or does not notifies a deficiency in known deadline all rights to warranty will be lost. The same applies in the event of wrong delivery, even at such a significant deviation, unless a new authorization of the goods by the purchaser had to be regarded as excluded.
d) Shows later defect which was not recognizable despite careful investigation (hidden defect) , this defect must be reported as above immediately after its discovery . Otherwise the goods shall also insofar as contractually agreed. The complaint of a hidden defect is excluded at the latest at the end of 8 weeks after receipt of the goods.
e) If the buyer gives no opportunity to check his claims or rejected goods or samples not immediately according our demand, the warranty claims made will not be considered.
2. Opposite non-merchants we are liable for defects, including the lack of assured properties , according to legal requirements either on conversion, reduction or replacement , when in addition to legal , the following conditions are met:
a) The non-merchant is responsible for the above examination obligations as the merchant. The demands that are placed on the knowledge of the buyer in the product sample does not conform to the merchantability, but on the conditions that can be expected from the buyer due to its commercial position.
b) If the buyer discovers deficiencies during the investigation, he shall immediately notify in writing this the seller. In general any defects must be carried out during the statutory deadlines in writing. If the buyer omits the respective him reasonable investigation as well as the written notification or if he missed the deadline set for him regarding warranty claim, he loses any warranty applicable to the detected and / or detectable defects. The same applies to wrong delivery.
IX. Liability for defects
1. For damages caused by defects in the goods, erroneous wrong delivery or defects in the packaging of legal protection of the purchaser including assets, we shall be liable as follows:
a) As far as damage caused by compliance with the inspection duties of the buyer could have been avoided, any type of liability is excluded on our part, for non-traders not, if the damage resulted from gross negligence on our part is due.
b) As far as damage occurs despite compliance with the inspection duties of the purchaser, we shall only be liable for grossly negligent breach of contract by our legal representatives – non-traders against for grossly negligent infringement of our agents
2. For other than the above regulated damage we are independent from a basic liability only if it has been caused by a grossly negligent action by us or one of our agents.
3. For sale by model the characteristics of the sample or samples are not assured; rather, it is non-binding properties, which describe the goods about. The same applies to analysis data, unless certain properties have been expressly guaranteed.
4. We are not liable for the suitability of the product for the intended buyer’s purposes. Our technical advice, information or recommendations know to be accurate. Since the actually successful application lies outside our control and their circumstances are not all predictable, can written and oral instructions, advice, etc. are not legally binding granted. In particular, they do not release the buyer from the testing of our products and goods for their suitability for the intended processes and purposes.
5. Any liability on our part based on the Product Liability Act remains unaffected by the foregoing provisions.
X. Title retention
1. The title of goods will be transferred to the buyer only, if full payment of the purchase price was made involving all others, including future claims arising from the business relationship with us. As long as the buyer fulfills his obligations towards us, he is authorized to re-use goods in the ordinary course of business.
2. We are entitled, without any grace period or notice of cancellation of the reserved goods by the purchaser to demand, if the purchaser does not comply with its obligations, despite a deadline. In the return of goods a withdrawal from the contract is possible only if we declare this in writing.
3. The purchaser hereby assigns from arising from the continued use (e.g. as sales) of the goods resulting claims against third parties with all ancillary rights to secure all our demands upon us. If reserved goods are sold together with other goods to a total price, the assignment is limited to the proportionate amount of our invoice for the conditional goods. If conditional goods are sold after processing with goods of third parties, the assignment shall be the part of the claim of the buyer, which corresponds to our co-ownership, share applies. Uses the Buyer the reserved goods within the framework of a work (or similar) contract, so he takes the (compensation for work) receivable in the amount of the invoice value of our goods used for this purpose to us.
4. The buyer is authorized in ordinary course of business to collect its receivables from a re-use of the goods. At our request, the purchaser has to notify the assignment to his customers, to refrain from any disposition of the claims, provide us with all necessary information on the inventory of goods in our ownership and the claims assigned to us and hand over the documents to assert the assignments, Third party access to the reserved goods and the assigned claims are reported to us immediately.
5. The buyer is obliged to keep the reserved goods carefully and to insure them at his own expense against loss and damage. He assigns his claims from the insurance contracts in this way in advance to us. We accept this assignment.
6. A manipulation or processing of the reserved goods by the purchaser or a third party commissioned by always takes place for us, without incurring any obligations to us. We are considered the manufacturer according to i. S. d. § 950 BGB and acquire title to the intermediate and final products at least in the amount of the invoice price of our reserved goods. Buyer or respective owners are only depositary for us. In a further processing with goods of others, we shall have joint ownership of the new item in proportion of the invoice values of the processed goods. The same applies in accordance with §§ 947, 948 BGB in combination or mixing of the reserved goods with other goods.
7. Our retention of title in accordance with the foregoing provisions shall also continue if individual claims are included in a current account and the balance is drawn and recognized. If the value of us hereafter available backups exceeds the total amount of outstanding claims by more than 20 %, we are obliged to the buyer’s request to release securities at its own discretion.
8. As far as the retention of title under the law of the country in which the delivered goods is, should not be effective, the buyer has to order at our request, an equivalent level of safety. If he does not comply with this, we may demand immediate payment of all outstanding invoices without regard to agreed payment Terms.
XI. Resale Discounts
We provide all resale discounts only subject to the proper settlement of all transactions. When handled properly, the transactions are valid only when the account of the buyer is compensated and all checks are redeemed in order to pay our deliveries. Otherwise, all rebates granted during the current marketing year are invalid and have to be paid by the buyer.
XII. Cancellation Costs
The buyer shall unjustified from a placed order back , the seller may , without prejudice to the possibility of making a higher actual damages , demand 15 % of the sales price for costs incurred for processing the order and for lost profit . The purchaser retains the right to prove lower damages.
XIII. Limitation
All claims of the buyer – for whatever legal reason whatsoever – expire one year. For intentional or fraudulent conduct and claims under the Product Liability Act, the statutory periods shall apply.
XIV. Regulations of the foreign trade legislation
If an approval for the offered legal transactions, supplies or achievements is necessary according to German or European foreign trade legislation or according to US-Export-Control-Regulations than the contractual compliance is suspending conditionally. If an approval is not granted or strictly adhered or if the rider are not fulfilled the Seller is emancipated of the contractual performance. The Buyer is indentured to engage constructively by providing needed documents. Costs incurred for it are paid by the Buyer.
The Buyer is exclusively responsible for the observation and accomplishment of all regulations of foreign trade (e.g. Currency Transfer licenses, Import and Export regulations). The foreign trade law information that carefully provided by the Seller are nonbinding. It doesn’t absolve the purchaser of fulfilling the foreign trade regulations in regard of proving the products by himself.
The delivery of a boycott declaration in foreign trade is void (§ 4a AWV).
XV. Data Storage
We store in our business accumulating personal information about the purchaser and forward this possibly on to anyone, in which we hold an interest and / or have contractual obligations.
XVI. Place of performance, legal domicile and applicable law
Only the law of the Federal Republic of Germany For the terms and conditions and all legal relationships. The CISG (CISG) shall not apply. Place of performance for all deliveries and services is Vlotho. The place of jurisdiction for all disputes is our registered office in Vlotho or the location of the nearest competent court. In addition, the seller is entitled to assert at its discretion own claims at the buyer’s place of jurisdiction. The buyer is not permitted, in other courts than the court to raise the action counterclaim or set off of their claims against the lawsuit claim as the court of the lawsuit in other courts.
XVII. Final clause
Should any individual provisions in the above general terms be or become invalid, this will not affect the validity of all other provisions.
Version: 29th January 2016