General Sales, Delivery and Payment Terms (AVB)
As per: 01.03.2013
I. Area of application
1. All our deliveries and performances shall be exclusively provided subject to the following conditions. With the receipt of an offer, an order confirmation or, at the latest, with the granting of an order or the receipt of a delivery, the client acknowledges that these AVB shall apply to all current and future business transactions.
2. Where any different Terms and Conditions of the client are not expressly rejected by us, this does not mean that they are accepted and such Terms and Conditions shall not become part of the contractual relationship. Every deviation from our terms shall be regarded as a rejection of the order, whilst an acceptance of delivery (even with reservations) shall be deemed to represent an acceptance of our AVB.
3. Deviating conditions can only be agreed with our Senior Management.
II. Scope of performance
1. All our offers are subject to confirmation. Any orders, agreements and prices shall only become binding with our written order confirmation.
2. The scope of our supplies and performances shall be determined by the written declarations of both parties. Where an agreement has been signed without such declarations having been provided by both parties, our written order confirmation shall be binding. Where the client does not immediately reject the contents of our order confirmation in writing or, at the latest within a period of 7 days after receipt, the agreement and its contents are deemed to have been bindingly accepted. In case of no order confirmation having being issued from our side, the written order of the client shall be decisive.
3. Any ancillary conditions, provisos, changes or additions to an order require prior written agreement from our Senior Management.
III. Prices and terms of payment
1. All our prices are ex works. They exclude any statutory sales tax valid at the time of the signing of the agreement and, where applicable, any insurance, packaging and dispatch costs.
2. In case of our valid daily rates or prices of our subcontractors changing from those valid at the time of the signing of the agreement by the time of the delivery, we shall be entitled to adapt our prices accordingly. In case of nontraders this shall only apply, where our deliveries or performances have been provided more than 4 months after the signing of the agreement. The extent of the price adaptations must be in line with the changes since the signing of the agreement.
3. Unless otherwise agreed in writing, payment of the net amounts shall be due within 30 days from the invoicing date without any deductions.
4. In case of an unsuccessful enforcement against the client, nonpayment, his bills or cheques not being honoured or an application for the instigation of insolvency proceedings being lodged against him, all outstanding invoices shall become due with immediate effect.
5. In case of the client being a trader and the agreement constituting a part of his business, the client shall be in default after 30 days from the date of the invoice. Default interest shall be charged at the rate of our usual loan cost and at least at a rate of 2 % above the respective base rate of the European Central Bank; a fee of €10 shall also be charged for each reminder. The client shall have to proof that the default has not caused any or considerably less damage. We also retain the right to claim for subsequent default damage.
6. The client shall only be able to offset any claims that are undisputed or have been legally determined.
7. In case of the client being a trader and the agreement constituting a part of his business, the client shall not be entitled to refuse performance acc. to § 320 of the German Civil Code (BGB) or shall not have any other right of retention. This also applies to a retention right arising from alleged deficiencies in supply prior to enforcing the guarantee and the commercial retention right acc. to § 369 of the German Commercial Code (HGB).
IV. Delivery dates; acceptance
1. With regard to delivery dates, the provisions specified in section II, para. 2, sentences 2 and 3 shall apply accordingly. Compliance with the delivery dates is subject to receiving any information and documents to be provided by the client in time and the agreed terms of payment and other obligations being adhered to by the client; in case of these points not being met, the delivery periods shall be extended in line with the delay caused by the client.
2. An agreed delivery date has been fulfilled once the goods have been made available to the client. Where a dispatch of the goods has been agreed, the delivery date shall be deemed to have been complied with once all goods have been dispatched.
3. Where non-compliance with the delivery date is due to the mobilisation of troops, war uprisings, strikes, lockouts or due to the occurrence of another unforeseeable impediment, the delivery period shall be extended accordingly. This shall also apply if our subcontractors are affected by these circumstances.
4. In case of non-compliance with the delivery date, the client shall only be able to claim for damage caused by a delayed delivery if this has been separately agreed. The client shall, in this case, have the right to set an appropriate extension of time, after which he shall be entitled to withdraw from the agreement.
5. Where the client does not accept the supplied goods within the agreed period, we shall be entitled to withdraw from the agreement without extending the period and to sell the supplied goods to other clients.
V. Passage of risk and dispatch
1. Where dispatch has been agreed, the risk shall pass to the client as soon as the entire order has been dispatched or picked up; this shall also apply, where the goods are delivered by our company.
2. Where the dispatch or the delivery of the order is delayed due to reasons caused by the client, the risk shall already pass to the client during the time of delay. We shall, however, have to insure the goods at his cost, as directed by him.
3. The packaging and dispatch – paid for by the client – shall be carried out with the usual commercial diligence; upon request and at the expense of the client, the delivery shall be insured by us against breakage, transportation and fire damage.
VI. Guarantee; product information
1. We generally cannot provide any assurances about the respective characteristics of our goods. We therefore do not accept any liability for consequential damage unless where we have confirmed in writing that we will also accept responsibility for damage to other property of the client.
2. The client shall inspect our deliveries immediately. In case of the client being a trader, any determined defects must be reported to us by registered letter within an exclusion period of 3 days, stating the actual defects. In case of obvious defects, this period shall commence upon handover of the goods and in case of hidden defects upon detection. For nontraders, only a complaint period of two weeks for obvious defects shall apply. After expiration of this period, the client shall no longer be entitled to any further claims.
3. For all goods supplied by us, generally only the weight determined by us shall be decisive. Unpacked (loose) soap is supplied in the usual commercial manner as soap with a fresh or cut weight determined in the factory. In case of sales being based on fat content, the guaranteed percentage of the weight in fatty acid must be present. Any weight loss occurring after dispatch as a result of drying shall be borne by the client.
4. Any suggestions or recommendations for processing and using our products shall be made without obligation. Any party processing our products shall be personally and directly liable for ensuring that the statutory regulations do not infringe any third-party rights.
VII. Security interest; rescission
1. All supplied goods shall remain our property until all receivables from the client – for whatever legal reason - have been met.
2. The client shall be entitled to process the supplied goods as part of his regular business operation. The goods shall be processed without any obligation on our part; the new products will become our property. Where products are processed with other goods from third parties, we shall gain co-ownership in the newly produced products based on the ratio of the value of our claimed goods compared to the other processed objects. In case of the products being combined, mixed or blended with other products, we shall become a co-owner in accordance with the statutory regulations. In case of our property being absorbed in a new product and the client becoming the (co-)owner, he shall already at this stage transfer his property to us as security, based on the ratio of the value of our claimed goods compared to the other processed objects. The client shall in all these cases, hold the objects owned or co-owned by us free of charge.
3. The client shall only be entitled to sell these goods as part of his normal business operation after obtaining prior written permission by us. This sales authorisation shall be automatically voided in case of an unsuccessful execution against the client, where his bills or cheques are not being honoured or an application for the instigation of insolvency proceedings has been lodged (considerable worsening of the financial circumstances). No other dispositions of our claimed goods, such as, in particular, pledging or assignment as securities, shall be permitted.
4. The client shall already at this stage transfer all claims, including all ancillary rights resulting from the resale of the claimed goods, to us and irrespective of whether the goods are resold with or without further processing. Where processed, combined, mixed or blended claimed goods are sold, we shall be entitled to the first partial amount corresponding to the percentage of the invoice value of our claimed goods in relation to the other processed objects at the time of processing, combining, mixing or blending. The client shall be entitled to collect the receivables transferred to us during his regular business operation. The right to collect these receivables shall cease once revoked by us and we shall be able to revoke this right at any time. The right will, however, at the latest cease in case of a considerable deterioration of the client's financial circumstances. As long as the client meets his payment obligations as agreed, we shall not make use of our collection authorisation. This collection authorisation does, however, not entitle the client to transfer his follow-up claims to a factoring company as part of a so-called factoring arrangement for accepting the collection risk, unless the business with us constitutes a commercial transaction for the client or the client is a legal person under public law or a public special fund. In each case, the client shall assign his claims against the factoring company with regard to payment of the factoring proceeds to us as a precaution and shall inform the factoring company immediately of this assignment upon issue of an invoice.
5. Without our express written consent, the client shall not be entitled to transfer our receivables to a current account. He shall also not be authorised to transfer any receivables previously assigned to us and obtained from the resale of the supplied goods onto a current account owned jointly with his customer. As a precaution, the client shall assign any rights arising from any recognised and current balances.
6. Our security interests shall only cease upon complete fulfilment of all payment obligations of the client. In case of payment by cheque or bill, fulfilment has only occurred once these have been honoured in full and there is no recourse against us. We shall release securities of our choice as soon as their value exceeds our claims by more than 20%.
7. The client shall inform us immediately of any execution measures by third parties affecting the claimed goods or other securities and shall forward any documentation required to object to these measures. Any resulting intervention costs shall be borne by the client.
8. Upon request, the client shall immediately provide a list of all purchasers of our claimed goods and inform these purchasers of the prior assignment of the receivables due from these. In case of companies without any natural person acting as unlimited general partner, this obligation shall also personally affect the director(s).
9. In case of a considerable deterioration of the financial circumstances of the client or where, after the signing of the agreement, legitimate doubts about the credit worthiness of the client should arise (i.e. information from a credit rating company), we shall be entitled to obtain prepayment or guarantees at all times prior to delivery; after delivery, we shall be entitled to stop the client selling or using the products and to demand the return of the goods to us. Where the client does not meet such a request, we shall be entitled to withdraw from the agreement.
VIII. Final provisions
1. The place of fulfilment for deliveries and payments is Euskirchen.
2. Where the client is a general trader, a legal person under public law or a public special fund, the place of jurisdiction shall be Bonn. We shall be entitled to also bring any action at the place of jurisdiction of the client.
3. The contractual relationship and any disputes arising therefrom shall – also in case of export orders – be subject to the law of the Federal Republic of Germany, as far as this is permissible and disbarring any other legal regulations and international agreements. For export orders, the United Nations Agreement for the International Sale of Goods (CISG), the Hague Agreement of 01.07.1964 and any respective executing laws shall only apply, if this has been separately and expressly agreed with us in writing.
4. In case of one or several provisions of these AVB being ineffective or unusable this shall not result in the other provisions becoming ineffective or unusable; the ineffective or unusable provision should, instead, be replaced by a new provision fulfilling the economic intent of the original provision.