General Terms and Conditions of Sale
of Vereinigte Füllkörper-Fabriken GmbH & Co. KG for contracts with trade professionals
Supplies, services and offers are carried out exclusively on the basis of the following terms of business applicable to all future business relations without further express agreement.
We shall not accept any contradicting terms of business, even if we do not raise any express, formal objection to the validity of other terms of business.
We are hereafter also referred to as the “supplier”, the contracting partner as the “orderer”.
Information for consumers in accordance with § 36 of the Consumer Dispute Resolution Act (VSBG):
We are neither willing nor obligated to participate in a dispute resolution proceeding before a consumer arbitration body.
1.) Offer, weights, filling quantity
All offers are exemptible and non-binding. Illustrations, drawings, weight and dimension details as well as calculations are only approximate, unless they are designated as binding in the actual offer. For partial and filling reserves, the orderer shall provide for a corresponding excess charge. The supplier assumes no liability for the conformity of filling quantities ordered and capacities neither of the intended facility nor for breakage, leakage or losses during filling.
Ordered quantities and all related details shall be interpreted according to our data sheet TB01-E in its latest version, obtainable from us by mail, fax or e-mail.
We reserve intellectual property rights and copyrights concerning offers, the enclosed documents, models, cost estimates, drawings, calculations and similar information, even when in electronic form. They shall not be made accessible to third parties.
2.) Contract signing
The contract comes into being only when the supplier confirms the order. The qualities established with this confirmation conclusively determine the properties of the service. Declarations by the supplier in connection with this contract do not include any acceptance of guarantee, in case of doubt.
3.) Prices and payment
Unless otherwise noted, the supplier shall bindingly adhere to the prices included in his offers for 30 days after the offer date. The written order confirmation from the supplier is decisive for binding price determination, provided the order data taken as a basis for the order confirmation remain unchanged. The supplier’s prices are understood ex works, in Euro plus the turnover tax applicable at time of delivery. Prices do not include packaging, insurance or other forwarding expenses, which are billed additionally. VFF reserves the right to invoice the agreed service by post or electronically by e-mail.
Unless otherwise agreed, the supplier’s invoices are payable 30 days after invoicing without deduction. After the date for payment, the supplier is entitled to charge interest on payments due, at 8% above the respective base rate, and to suspend his services until full payment, subject to assertion of a more extensive claim. The orderer is authorized to offset and withhold only legally valid or undisputed counterclaims.
If, between contract signing and most recent (partial) delivery, more than 12 months go by, and in the interim wages or material prices increase substantially, the supplier is entitled to increase prices by 0.5% for each percent increase in payroll, material or energy expenses.
If payment in a currency other than the Euro is agreed upon for contracts with foreign orderers, and the rate for the foreign currency drops, the supplier is entitled to demand value adjustment for the reductions in value occurring from the time when the contract was signed, to the time of payment.
In addition, the supplier is entitled to withdraw from the contract without prejudice to the right to demand damages – if the orderer does not pay within a reasonable period, seriously and definitively refuses to pay, or does not make payment on a date specified in the contract or within a certain period or where there are particular circumstances – sustained deterioration of the customer’s assets, which justify an immediate withdrawal.
4.) Delivery dates, Obligations
Adherence to agreed delivery dates requires authorizations, necessary documents such as drawings, etc., as well as compliance with the agreed terms of payment. Otherwise, an agreed delivery time or date will be reasonably extended accordingly, unless the supplier is responsible for the delay. Adherence to a delivery time or date is subject to proper, timely self-provision. The supplier shall inform the orderer of imminent delays as soon as possible.
Force majeure releases the supplier from his obligation to deliver as long as it lasts. Force majeure applies if the hindrance is due to an event that cannot be foreseen and prevented by the supplier even with the utmost attentiveness. The supplier is entitled, based on the aforementioned events, either to withdraw from the contract or to claim damages.
If the object of delivery has left the supplier’s factory or warehouse by the end of the agreed delivery period or it has been reported ready for delivery by the supplier, then the delivery period has been adhered to. If acceptance has to take place, except in cases of justified refusal of acceptance, the scheduled acceptance date is decisive and, alternatively, the supplier’s announcement that it is ready for acceptance.
If there is a delay in forwarding or acceptance of the object of delivery for reasons attributable to the orderer, he will be billed within one month after reporting the object’s readiness for forwarding or acceptance.
In case of default, the supplier’s liability for damages is limited to 0.5% for each full week of lateness, but in total not more than 10% of the value of that portion of the entire delivery that cannot be used on time or as per contract due to the delay. More extensive orderer claims are excluded even after expiry of a deadline for performance set for the supplier. In addition, Point 7.c. is applicable to the supplier’s liability.
5.) Transfer of risk, Acceptance
The risk is transferred to the orderer as soon as the object of delivery has left the factory or the warehouse, namely when partial deliveries are made or the supplier has taken on other services such as forwarding expenses or delivery and installation. Acceptance, where applicable, will be decisive for the transfer of risk. It must be carried out without delay on the scheduled acceptance date, alternatively, after the supplier reports its readiness for acceptance. The orderer cannot refuse acceptance because of an unsubstantial defect. If there is a delay or omission of forwarding or acceptance due to circumstances that are not the supplier’s fault, the risk is transferred to the orderer from the day when readiness for forwarding or acceptance is reported.
6.) Retention of title
a) The delivery item shall remain the property of VFF, as Contractor, until all claims due to the Contractor from the transaction with the Orderer have been satisfied. Where the Orderer breaches his obligations, in particular where he defaults on payment, the Contractor is entitled to demand release of the delivery item by the Orderer, and/or to withdraw from the agreement without having to set a notice period. The Orderer shall be obliged to implement this release. The Contractor’s demand for release shall not include any notice of cancellation unless it has been explicitly declared as such.
b) The Orderer may manipulate the delivery item, or mix or combine it with other items. The manipulation, mixing, or combining of the delivered item is hereinafter referred to jointly as “manipulation”. The term “manipulated” is also used to generally refer to the delivery item. The manipulation of the delivery item by the Orderer shall be performed solely for the Contractor. The manipulated delivery item shall be considered a “new item”. The new item shall be stored by the Orderer for the Contractor. Within the framework of this storage relationship, the Orderer shall observe at least the diligence of an ordinary businessman.
c) Where the Orderer manipulates the delivery item with other items which are not the property of the Contractor, the following applies: The Contractor has the right to co-ownership of the new item that has been produced by the manipulation in the ratio of the value of the manipulated delivery item to the value of the other manipulated items which do not belong to the Contractor as it is at the time of manipulation. The Orderer and the Contractor are in agreement that the Orderer shall grant the Contractor co-ownership of the new item in the ratio of the value of the manipulated delivery item to the other manipulated items. The time of manipulation shall be authoritative for calculation of the value ratio.
d) In the interests of security, the Orderer hereby assigns to the Contractor all receivables from the resale of the delivery item which the Orderer receives from his purchaser from the sale of the delivery item. This assignment also covers all ancillary rights which the Orderer acquires with respect to his purchaser in the context of the sale of the delivery item. This does not require additional special declarations. The assignment for security also covers any balance claims. However, this assignment is limited to the amount of the sum which the Contractor has invoiced to the Orderer for the delivery item. The share of the receivable assigned by the Orderer to the Contractor shall be satisfied in the first place.
e) Where the Orderer combines the delivery item or the new item with parcels of land or movable property, he shall, in the interests of security, assign the claim to compensation, which he is entitled to for this combining, to the Contractor, including all ancillary rights, and without such requiring additional special declarations. Assignment shall be performed in the ratio of the value of the delivery item or new item to the value of the other combined items. The time, at which the combining is performed, is authoritative.
f) The Orderer is in principle entitled to collect, but not to cancel, the receivables assigned under this para. 6 [retention of title demanded]. The Orderer is obliged to pass on payments made on assigned receivables to the Contractor immediately, though to a maximum of the secured receivable of the latter. The Contractor is entitled to revoke the Orderer’s authority to collect receivables where there exists good cause. Good cause exists in particular if the Orderer defaults on payment, ceases his payments, is ordered to initiate insolvency proceedings, or if there exists justified evidence that the Orderer is in excessive debt or is threatening to become insolvent. The Contractor is entitled to disclose the assignment of security and to exploit the assigned receivables for his part by observing an appropriate notice period and after prior warning, and is also entitled to demand that the Orderer disclose the assignment of security to his orderers.
g) The Orderer shall provide the Contractor immediately with all information and all documents required to enforce the latter’s rights against the orderers of the Orderer, in particular contracts, delivery slips, guarantees, and credit insurance documents. The Contractor shall only make use of this right in case of a legitimate interest. Legitimate interest of the Contractor is generally such where the Contractor holds the rights stipulated under para. 6 above.
h) The Orderer may resell the delivery item or new item as part of his ordinary business. This right is subject to the condition that the equivalent value of the delivery item is paid to the Orderer. The Orderer is obliged to reach an agreement with his recipient that the latter only obtains ownership upon payment. For as long as the Contractor’s retention of title persists, the Orderer is forbidden from pledging the delivery item or new item or transferring such by way of security. In the event of third-party interventions, in particular pledging, seizure, or any other disposal which affects the delivery item or new item, the Orderer shall inform the Contractor immediately.
i) The Orderer is entitled to demand release of a corresponding portion of the security rights by the Contractor as soon as the realisable value of such exceeds the sum of all secured claims of the Contractor by more than 10%. The Contractor shall be entitled to choose which security rights to release at his own discretion.
7.) Warranty claims
a) Defects of goods
If the orderer intends to demand damages instead of performance, or to correct the defect himself, the correction is considered to have failed only after the second unsuccessful attempt. This does not affect cases where, by law, a deadline is not to be set.
If VFF decides to provide a warranty service in the form of supplying a replacement, the new shipment shall be made within a reasonable period after the buyer has reported the defect. The reasonable length of such a period shall be determined by the expenditure required for the manufacture or procurement of such items to be delivered as a replacement. In any event, however, a period of 4 months from the date of reporting of the defect by the buyer shall be deemed reasonable for the performance of supplying the replacement. Only in the event that VFF is responsible for exceeding the reasonable period for supplying a replacement shall the subsequent performance be deemed to have failed.
In cases of supplemental performance, the supplier will bear typical freight charges, by land and/or by sea, provided that this is not a disproportionate burden for the supplier.
Minor defects that do not substantially reduce the value or suitability for use of the object of delivery for the purpose specified by the contract are not covered by warranty.
Any right of reduction of the contract price is excluded. Further claims of the orderer are determined by the provisions on liability for damages under the clause with the heading “Liability” (c) below).
b) Defects in law
Insofar as the delivery and use of the object of delivery lead to infringement of trademarks or copyrights in Germany that are the supplier’s fault, then the supplier shall at his own expense provide the orderer with the right to use the object of delivery, or modify the object of delivery in a manner acceptable by the orderer and in such a way that an infringement of trademarks do no longer exist. If this is not practicable under economically reasonable conditions and causes disproportionate expenses, both parties to the contract are entitled to withdraw from the contract.
The obligations due to defects in law exist with respect to the supplier only if
-the orderer fully informs him of any asserted trademark or copyright infringements without delay,
-the orderer supports him in his defense against any asserted claims. This comprises comprehensive and continuing information on the progress of any proceedings, including trials. For this purpose, the orderer shall enable the supplier or consultants specified by him, to review all correspondence along with enclosures and his own business documents that are relevant to trademark or copyright infringement.
In case of doubt, business documents shall be submitted. The supplier in turn undertakes to use acquired knowledge only for defense against claims arising from trademark or copyright infringements. In addition, the orderer undertakes to enable the supplier where necessary to make modifications to the object of delivery to avoid or eliminate the trademark infringement under the preceding section,
-the supplier reserves the right of defensive measures including reaching settlements, whether in court or out of court.
For damage that was not caused to the object of delivery itself, the supplier is only ever liable, regardless of the legal reasons, in the case of intent or gross negligence of the owner, the departments or executive employees, in the case of culpable injury to life and limb or health, in the case of fraudulent concealment of defects or, if the absence thereof was guaranteed, in the case of defects of the object of delivery. This applies only within the scope of the provisions for liability for personal damage or damage to goods as specified in the Product Liability Act.
Should substantial contractual obligations be breached, the supplier is also liable for gross negligence of non-executive employees and basic negligence. The supplier’s liability is however limited to the damages typical of the specific contract and reasonably foreseeable. Further claims are excluded.
8.) Statute of limitations
Regardless of the legal grounds, claims of the orderer against the supplier become barred by limitation within 12 months from successful delivery, or from acceptance in the case of a contract for work. The statutes of limitation apply to claims for damages.
9.) Place of jurisdiction, applicable law, binding force, language, miscellaneous
The contractual relations with the orderer are governed by German law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
For all disputes arising from the contractual relations, proceedings shall be brought before the court that is competent for the supplier’s place of business. The supplier is entitled to sue the orderer in a jurisdiction competent for the latter’s place of business or the latter’s branch office’s place of business.
This supply conditions are written in German and English language. In the event of any ambiguities or discrepancies between the English and /or the German version of this supply conditions, only the German version shall prevail.
If any provision in this supply conditions is or becomes invalid, all other provisions shall remain in full force. The invalid provision(s) shall be substituted by such regulations having an economic effect as similar as possible to the invalid provisions.