General terms and conditions
1. General
(1) All sales are exclusively subject to the following Terms and Conditions. The Purchaser accepts these terms and conditions by placing an order and/or accepts the product without objection. These terms and conditions apply to all future business transactions (orders), even if these terms and conditions are not expressly agreed. Contrary or deviating Purchaser terms and conditions do not constitute a component of this Agreement, unless we expressly agree to such terms and conditions in writing. This also applies, if we have knowledge of the fact that the Purchaser's terms and conditions contradict or conflict with our terms and conditions and the Purchaser's order is executed without expressly contesting the Purchaser's terms and conditions. We reserve the right to amend our terms and conditions. The amended version applies to all purchase agreements that are concluded after the amended delivery and payment terms and conditions have gone into effect.
(2) The Purchaser's data is stored and processed with the consent of the Purchaser within the scope of the general business operations of our company. Disclosure of the Purchaser's data to third parties only occurs within the scope of the Federal Data Protection Act [Bundesdatenschutzgesetz]. It is ensured that the data is reasonably protected against unauthorized access.
2. Offer and Agreement Conclusion, Prices and Discounts
(1) Our price list is only understood as an invitation to request a proposal. The set measures are only estimates; tolerances of +/- 3% are customary in the trade and industry. The indicated prices are non-binding and without obligation. The prices apply per set quantity, in Euro plus statutory Value Added Tax applicable at the point in time of delivery / invoicing. The price list valid on the day of delivery is relevant to the purchase price, if the delivery is made more than six weeks after the order and a price adjustment has been made in the interim due to changes in market conditions.
(2) The exclusive relevant basis for the legal relationship between the Purchaser and Seller is the Purchase Agreement concluded in writing, including these General Delivery and Payment Terms and Conditions. The Purchase Agreement includes all arrangements and agreements between the contracting parties regarding the subject matter of the agreement. Verbal commitments made by us prior to the conclusion of the Agreement are not legally binding and any verbal agreements between the parties are replaced by the written agreement, unless such verbal agreements state expressly that they will remain effective after the conclusion of the written agreement. Supplements and amendments to the agreements require the written form to be effective.
(3) The union of several customers into a purchaser or purchasing association can only be construed as one purchaser, if such purchaser and/or purchasing association acts as the main invoice recipient / payer and assumes the liability for punctual payment of invoices. Payments of the individual purchasers to the purchaser or purchasing association are made without debt discharging effect vis-à-vis Erfurt & Sohn KG and do not affect the agreed retention of title.
3. Delivery and Shipping
(1) The Purchaser bears risk and costs for delivery and shipping. The risk passes to the purchaser at the latest at the point of the handover of the goods (the start of loading is relevant) to the carrier, freight driver or other third party commissioned to carry out shipping. This also applies in the case of partial deliveries. We reserve the right to select mode and route of transport, if the Purchaser has not provided other instructions with its order. We are entitled to charge the Purchaser any additional costs associated with such instructions. Pick-up of goods is not possible. The recipient may only assert its claim to compensation for goods lost during transportation against the carrier. We hereby assign any claim to compensation against the carrier to the Purchaser. The same applies in the event of any damage to the goods during transportation; the recipient must immediately request and obtain written confirmation of such damage on the consignment notes or on the delivery notes. In cases of loss of or damage to the goods during transportation for which we are not responsible, the Purchaser's claims against us are limited to the rights stipulated in Section 281 German Civil Code [BGB].
(2) Insurance coverage must be requested separately by the Purchaser; the costs for the insurance are exclusively borne by the Purchaser unless carrier transport insurance has been taken out.
(3) The Purchaser submits to the terms and conditions of the carrier and insurance companies involved with the delivery and shipping of the goods.
(4) We do not make so-called drop shipments and room to room deliveries.
4. Payment Terms
(1) Unless otherwise agreed, upon receipt of the purchased goods the invoice amount is due within 14 days of the invoice date in full, without any deductions. Deduction of a discount is only permissible if agreed separately in writing.
(2) If circumstances occur after the conclusion of the Agreement, which call the Purchaser's credit standing i.e. ability to pay into question and as such the Purchaser's consideration appears to be endangered (e.g. suspension of payments, cheques and bills of exchange are not cashed, as well as the termination of the Seller's trade credit insurance policy), we are entitled to demand reasonable advanced payments or securities. This also applies, if such circumstances already existed at the point of the conclusion of the agreement, and this was not identified by us in spite of the exercise of customary diligence. If upon our demand the Purchaser fails to meet its obligation to provide advance payments or securities, we are also entitled to refuse delivery of goods until the advanced payment or securities have been paid or provided by the Purchaser or to withdraw from the agreement. Interest of 8 percentage points p.a. above the base rate is to be charged on money debts during the delay, unless the Purchaser furnishes proof that as a result of the payment delay we did not suffer any loss or only a substantially smaller loss.
(3) Payments are due irrespective of delayed receipt of the invoice or goods, except in cases of gross negligence or intent on our part in this regard, at the earliest however with the receipt of the invoice or goods.
(4) Bills of exchange and cheques will only be accepted with prior written consent and are only considered payment after they have been cashed. If we assume the issuer liability with the so-called "acceptor's bill of exchange procedure" from a bill of exchange accepted by the Purchaser, payment is only effected with the cashing of the cheque issued by the Purchaser and the lapse of our issuer liability for the aforementioned bill of change. In regard to the timely presentation of bills of exchange or cheques we assume no liability whatsoever. Bill fees and discount fees are borne by the Purchaser.
(5) If the Purchaser’s payment of invoices is in arrears for a period exceeding one week, all claims of any kind are due immediately, including any claims that are not yet due, to the extent the consideration (delivery of goods) has been performed by us. This also applies in such cases, if the conditions of para 2 sentences 1 and 2 are met. In addition, all claims of any kind that are not yet due become due and collectable immediately, if the personal or economic situation of the debtor give rise to the assumption that the undisturbed continuation of the business relationship is impossible and that such circumstances endanger our claims.
(6) Received payments are credited to the debt in accordance with Sections 366 para 2, 367 para 1 German Civil Code [BGB].
(7) Should the Purchaser be in default of payment or acceptance, we are also entitled to withdraw from the respective agreement and any other existing agreements or to demand damages for non-performance of contract after a reasonably grace period has been set to effect performance has expired without results.
5. Delivery Dates and Holdups
(1) Delivery dates and periods are merely estimations and non-binding, unless such dates have expressly been agreed separately in writing. Compliance on our part requires the timely and proper performance of the duties (cooperation duty) of the Purchaser. Unless agreed otherwise in writing, the actual delivery date is considered to be the day the goods were handed over to the carrier.
(2) Force majeure or other unforeseeable exceptional circumstances for which we are not responsible - such as industrial disputes, strikes, lockouts, epidemics and unforeseeable business disruptions, unavoidable shortage of raw materials or energy, lack of means of transport or labour, official orders, legal lockout etc., even if they occur at or are caused by our suppliers or their sub-suppliers, seriously hamper on-schedule delivery. If these events significantly hamper delivery or make on-schedule delivery by us impossible and the obstruction is temporary, a binding delivery date or a binding delivery period will be extended by the duration of the obstruction plus a reasonable lead-in period. We can only invoke the above circumstances, if we notify the Purchaser immediately upon becoming aware of the circumstances. If due to such circumstances the delivery becomes impossible or unreasonable in full or in part, we are entitled to withdraw from the Agreement in full or from the corresponding part of the Agreement. If the delivery period is extended or we withdraw from the Agreement in full or in part due to the above circumstances, the Purchaser may not base any damage claims on such extension or withdrawal. If the delivery delay exceeds one month, the Purchaser may withdraw from that part of the agreement that has not yet been fulfilled after the Purchaser has set a reasonable grace period in writing.
(3) If we are in default in regard to the shipment of partial deliveries, the set grace period, which the Purchaser is required to communicate in writing jointly with a threat to refuse acceptance of delivery after the expiry of such grace period, must be at least two weeks beginning with the receipt of such notification.
(4) If we are in default in regard to a delivery or a contractual obligation or if the performance of a delivery or a contractual obligation becomes impossible, regardless of which grounds whatsoever, our liability for damages is limited pursuant to the provisions of Section 7 of these Delivery and Payment Terms and Conditions.
6. Warranty and Product Properties
(1) Goods must be inspected and compared in accordance with the familiar processing instructions. A grammage tolerance of +/- 10% is customary in trade and industry. In the case of subsequent deliveries, deviations from the original caused through the limitations of technology, fabrication and the characteristics of the raw materials cannot always be avoided. The occurrence of such deviations and such deviations do not constitute any right to submit a complaint, unless the Purchaser can furnish proof that the deviations from the original are unreasonable.
(2) Complaints regarding obvious defects must be notified in writing immediately upon receipt of the goods, at the latest two weeks after their arrival at the destination.
(3) With each notice of defect, sections of the defective good, upon which the claimed defect is supposed to be identifiable, the associated package slip and/or the associated packaging tape and production number must be provided.
(4) If we are responsible for the defect we are entitled to provide a replacement delivery. If we are not willing to, not able to or we refuse to provide a replacement delivery or such replacement delivery is delayed beyond a reasonable period for reasons for which we are responsible or the replacement delivery fails otherwise, the Purchaser may opt to withdraw from the agreement or to demand a corresponding reduction of the purchase price (reduction).
(5) Defects of a part of a delivery do not entitle the Purchaser to submit a complaint about the entire delivery, unless, the Purchaser furnishes proof that the remainder of the defect-free delivery does not serve the intended purpose.
(6) The warranty period is 12 months, starting with the passing of risk. This period is a statute of limitation and also applies to claims to the compensation of consequential damages caused by a defect, unless such claims are asserted on the basis of an intentionally committed tort.
(7) If we are responsible for the defect, the Purchaser may claim damages subject to the requirements stipulated in Section 7 of this Agreement.
(8) The range of colours, structures and other differences within a type of product type form part of the properties of our products and do not represent reasons for complaints or liability. If necessary, purchasers should obtain professional advice.
(9) Form, colour and dimensions may vary slightly and do not justify complaints.
(10) Please note the manufacturer's instructions relating to care, handling and storage.
7. Liability for damages arising from fault on our part
(1) Fault and Claim to Our liability for damages, based on any legal grounds whatsoever, in particular based on impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations (culpa in contrahendo) and tort, is limited pursuant to the provisions of this Section 7 to the extent such liability is based on fault or negligence.
(2) We are not liable for simple negligence of our executive bodies, legal representatives, employees or other vicarious agents, provided such simple negligence does not constitute a violation of essential contractual obligations. An essential contractual obligation is the obligation to the timely delivery of the subject matter of the agreement free of material defects, as well as consulting, protection and care duties whose intent is to enable the Purchaser to use the supplied goods according to the Agreement or to serve the purpose of protecting life or limb of the Purchaser's personnel or of protecting the Purchaser's property from material damages.
(3) To the extent we are liable for damages in principle according to para 2, such liability is limited to damages that we have foreseen as a potential consequence of a breach of contract or which we should have foreseen by applying customary due care. In addition, indirect and consequential damages, as a consequence of defects of supplied goods, may only be compensated if and to the extent such damages are typical if the supplied goods are used as intended.
(4) In the event of liability for simple negligence, our obligation to compensate for property damages and resulting additional financial losses is limited to the actual occurring direct damage typical and foreseeable for such agreements, even if such simple negligence is a violation of essential contractual obligations.
(5) The above exclusions and limitations of liability apply to the same extent to our executive bodies, legal representatives, employees and other vicarious agents.
(6) Any technical information or consulting activities that are not included in our contractually agreed obligations is free of charge and under exclusion of any liability.
(7) The limitations in this Section 7 do not apply to our liability for intent, warranties as to quality, injuries to life, limb or health or pursuant to the German Product Liability Act [Produkthaftungsgesetz].
8. Right of Recourse
(1) The provisions of Section 6 do not affect any of the Purchaser’s right of recourse, if the Purchaser has resold the supplied goods to a consumer. In this case, Sections 478, 479 German Civil Code [BGB] apply.
9. Retention of Title
(1) All deliveries are subject to the retention of title. The goods remain our property until all of our claims arising from the business relationship are satisfied. Unless otherwise agreed in writing in advance, the Purchaser is limited to the domestic territory – to sell and process the goods in the proper course of business, provided the Purchaser does not default on its payments. Without our express written prior consent he is not entitled to assign or pledge the goods subject to the retention of title. In the event of breach of contract by the Purchaser, in particular, if the Purchaser defaults on its payments, we are entitled to take back the goods. The taking back of goods does not constitute a withdrawal from the Agreement, unless we expressly declare such withdrawal in writing. After the taking back of goods subject to retention of title, we are entitled to dispose of such goods. The proceeds from such disposal are credited to the liabilities of the Purchaser after the deduction of reasonable disposal costs according to Section 4 para 7.
(2) The Purchaser is obligated to treat and store the goods subject to the retention of title with care and to insure such goods against fire and water and theft damages such that the replacement value is covered. Upon our request the Purchaser is to furnish proof of such insurance coverage.
(3) In the event of attachments or other seizures by third parties to the goods subject to retention of title the Purchaser is obligated to inform such third parties that the goods are our property and to notify us in writing without undue delay. If a third party is not able to reimburse our court and out-of-court costs associated with third-party proceedings instituted to prevent the execution of a judgement (Section 771 German Civil Procedure Code [ZPO]), the Purchaser is liable to us for the losses incurred by us.
(4) The processing or modification of the goods subject to retention of title by the Purchaser is always performed on our behalf as the manufacturer, but without any obligation or liability to us. If such goods are processed with other objects, which do not belong to us, we acquire joint-ownership in the new object in proportion to the value of our goods (- if available proportionate - invoice final amount plus VAT) to the value of the other processed objects. The provisions on the goods delivered subject to the retention of title also apply to the newly created object/product.
(5) If the goods subject to the retention of title are processed and are inseparably mixed with other objects, which do not belong to us, we acquire joint-ownership in the new object in proportion to the value of our goods (- if available proportionate - invoice final amount plus VAT) to the value of the other processed and mixed objects at the time they were combined. If the mixture occurs in such a manner, that an object of the Purchaser is deemed to be the main thing, it is hereby agreed, that the Purchaser transfers and assigns the proportionate co-ownership to the object. The products created in this manner and to which we are the sole or co-owner are stored and safeguarded by the Purchaser on our behalf free of charge.
(6) To safeguard all our claims arising from the business relationship with the Purchaser, the Purchaser hereby assigns all claims to the goods subject to the retention of title arising from the resale or from other legal grounds (insurance, tort), including all balances from current accounts against its customers or any third party with the full amount and without any deduction, irrespective of if the goods subject to the retention of title are sold or have been sold not having been processed or having been processed. The same applies to claims that arise against third parties as a result of the application of the goods subject to the retention of title to a structure.
(7) We hereby grant the revocable authorisation to the Purchaser to collect the claims assigned to us in the Purchaser’s name and at the Purchaser’s expense. Our right to collect these claims remains unaffected. We undertake, however, not to execute our authority, provided the Purchaser duly meets all of its payment obligations regarding all of our claims, the Purchaser does not default and, in particular, no application to open insolvency proceedings against its assets has been filed or the Purchaser suspends its payments. In each of the above cases we may demand that the Purchaser discloses the assigned claims and their respective debtors to us, provides all information required for the collection of the claims, delivers any and all associated documents and notifies the Purchaser’s debtors regarding such assignment.
(8) We undertake to release securities owed to us upon demand of the Purchaser to the extent that the realizable value of such securities exceed our secured claims by more than 8% over a sustained period. We have the right to select the securities to be released.
10. Set-off, Right of Retention
Any set-off or retention rights of the Purchaser apply only, if its counter claims have been established in a final and binding judgement, and are uncontested or recognised by us.
11. Final Provisions
(1) The entire legal relationship between us and the Purchaser, as well as this Delivery and Payment Terms and Conditions is governed by the laws of the Federal Republic of Germany; the application of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG] is excluded.
(2) The seat of our company (Schwelm in Westfalen) is the exclusive place of performance and is the place of jurisdiction for all obligations and legal disputes arising directly or indirectly from the business relationship, if the Purchaser is a businessman.
(3) Should individual clauses of this Delivery and Payment Terms and Conditions be or become ineffective, this does not affect the validity of the remaining clauses or agreements.
Erfurt & Sohn KG
Wuppertal
Amtsgericht Hagen, HRA 4191
Version of 1st May 2013 - Please note our updated paragraph 5.2 “Force Majeure” dated 20.03.2020.