Moll bauökologische Produkte GmbH
Rheintalstraße 35- 43 – 68723 Schwetzingen,
§ 1 Applicability of Conditions
(1) These General Business Terms and Conditions apply to all our contracts, offers, deliveries and other services - and to those in the future as well - exclusively if the customer is an entrepreneur within the meaning of § 14 German Civil Code, a legal entity under public law or a public special fund.
(2) Oral side agreements and modifications to these General Business Terms and Conditions and additions to or the exclusion of these General Business Terms and Conditions and warranty declarations or other assurances made by our employees or other representatives are not valid unless they have been confirmed in writing by our management and only apply to the respective transaction for which they were agreed.
(3) General business terms and conditions of the buyer/customer are definitely not binding unless we had expressly agreed in writing to their application. The customer's standard terms and conditions of business will not apply even if they have been sent to us with the order in a letter of confirmation or in some other way and we do not expressly state that we will not accept them or if we make the delivery to the buyer without reservation.
§ 2 Conclusion of Contracts, Offer Documents
(1) As a matter of principle our offers are non-binding, unless they are expressly marked as binding.
(2) A contract is not valid until the order has been confirmed in writing or until the order has been executed by us. The buyer/customer is bound to his order for 14 days as a matter of principle.
(3) Obvious errors in our offer or in the order confirmation, typographical and arithmetical errors do not give rise to any entitlement of either the buyer/customer or to us. The agreement only comes into effect as it would have come into effect without this error or mistake.
(4) We reserve all title and copyright in all drawings, illustrations, cost estimates and other documents attached to our offers. These documents may not be disclosed to third parties or put to commercial use without our prior consent and must be returned to us on request without undue delay.
§ 3 Supply
(1) We may supply more or less than the quantity agreed to the extent which is customary in commercial practice.
(2) We may supply goods or services in part deliveries provided it is not unreasonable to expect the buyer/customer to accept this.
(3) The delivery times or dates stated by us are non-binding as a matter of principle.
(4) Our observance of the bindingly agreed delivery dates and deadlines stated is contingent on proper and punctual fulfilment of all obligations incumbent upon the buyer/customer.
(5) Unless otherwise expressly agreed delivery shall be ex-works (our warehouse) in accordance with INCOTERMS 2010. Delivery dates and deadlines shall thus be deemed to have been met if, by this date, the goods have left the works or are ready for dispatch and the buyer/customer has been notified accordingly.
(6) Our obligation to supply the goods and services shall be contingent upon our having been supplied in a proper and timely manner by our own suppliers. If delivery is delayed owing to force majeure, including without limitation measures related to industrial action such as strike and lawful lock-out, and in the event of any other hindrances which are outside our sphere of responsibility, the delivery period will be extended by a reasonable period. This also applies if such circumstances occur at our own suppliers. We will notify the buyer/customer of the beginning and end of such hindrances.
(7) In the event of a delay in delivery, the buyer/customer can demand, provided the statutory conditions are satisfied, not only delivery but also reimbursement of any actual proven loss incurred by him by the delay. Such compensation may not exceed 0.5 % of the value of the delivery concerned per week of default and no more than 5 % on aggregate, unless we have acted with intent or gross negligence. This does not affect the buyer's/customer's right to rescind the contract and/or to assert compensation owing to non-fulfilment pursuant to § 8 and once a reasonable subsequent deadline set by the buyer/customer in writing has expired.
(8) If the buyer/customer does not accept the goods ordered in good time, we shall invoice such goods, irrespective of our claim to fulfilment and other rights, and store these goods in our warehouse to the account of and at the risk of the buyer/customer. Insurance cover shall only be obtained by us on express wish from and at the cost of the buyer/customer. If such storage is on our own premises, we may charge a storage flat rate of EUR 1,50 per week for each palette of storage; the parties reserve the right to provide documentary evidence that the actual costs are higher or lower.
§ 4 Dispatch at Request of Buyer/Customer, Palettes and Packaging
(1) If the goods are dispatched at the request of the buyer/customer, this shall be to the account of and at the risk of the buyer/customer. If the goods are shipped with our own vehicles or vehicles leased by us the risk transfers to the buyer/customer as soon as the goods are moved for loading purposes from the ground into the transport vehicle. If transport becomes impossible through no fault of our own, the risk shall transfer to the buyer/customer when it is reported that the goods are ready for dispatch.
The buyer/customer shall inform the freight carrier of the loss and any damage to the goods externally visible on delivery and send us a copy of such report. The buyer/customer shall inform the freight carrier of other damages in text form (by post, fax or e-mail) at the latest seven days after delivery and shall send us a copy thereof.
(3) If the goods are delivered on deposit pallets or EURO pallets, they shall be returned to the freight forwarder immediately after shipment. If the pallets are not returned, the freight forwarder is entitled to charge the buyer for the pallets.
(4) Packaging can be returned to our works during regular working hours. Packaging shall be returned empty, free of foreign materials and non product-related contaminationsand sorted in accordance with different packaging. If the above-mentioned duties are not fulfilled, we may charge the buyer/customer for any extra cleaning and seperation which this may cause.
§ 5 Prices and Terms of Payment
(1) Price quotations in price lists or catalogues can be changed at any time.
(2) Therefore as a matter of principle, the prices due shall be as specified in our order confirmation.
(3) We reserve the right to amend the prices accordingly if, once the contract has been concluded, costs increase or decrease, in particular owing to the conclusion of tariff agreements, changes in the price of the materials and energy consumed or changes to transport costs, provided delivery is not to be made within two months of conclusion of the contract. On request, we will provide the buyer/customer with evidence of increases in costs.
(4) Our prices ex warehouse in Schwetzingen shall be exclusive of packaging, carriage and prevailing VAT, other taxes, charges and other public fees or customs duties.
(5) The purchase price shall be due for immediate payment after delivery on the day of the receipt of the invoice. Diverging agreements are only valid if these are confirmed expressly in our order confirmation. Discount shall only be granted to the extent printed on the invoice.
(6) We are not obliged to accept bills of exchange; a bill of exchange or a cheque shall definitely only be accepted on account of performance. Any associated costs shall definitely be to the account of the buyer and shall be paid in advance in cash.
(7) If we do not receive the invoice amount within the agreed deadline, we are entitled to demand default interest in accordance with the statutory provisions. This shall have no effect on any further-reaching claims and rights.
(8) The buyer is only entitled to set off or retention if the counterclaims are recognised by us, have been ascertained as final and absolute by a competent court or are undisputed.
(9) We are entitled to execute or provide outstanding deliveries or services only in return for advance payment or for the payment of a security if, after the conclusion of this agreement, a material deterioration in the financial situation of the buyer/customer arises or becomes recognisable, which could jeopardise the fulfilment of the buyer's/customer's obligation towards us. If, after we have set a reasonable deadline, the buyer/customer chooses neither to make payment concurrently nor to provide a security deposit, we can rescind the agreement after the deadline has expired without performance having been provided and demand advance payment for any future deliveries.
§ 6 Reservation of Title
(1) We reserve title in goods supplied (hereinafter: Retained Goods) until all amounts, present and future, due to us under the business relationship with the buyer/customer have been settled in full. Where a current account is maintained with the customer, retention of title serves to secure any claim we may have on the current balance.
(2) If the customer processes or alters the Retained Goods, this shall always be performed for us without giving rise to any obligation on our part. If in processing the Retained Goods are combined with other items which do not belong to us, we shall acquire pro-rata co-ownership in the new item commensurate with the ratio of the value of the Retained Goods supplied to that of the other processed items at the time of processing. The buyer hereby transfers this co-ownership to us, and we accept this transfer and assignment. The buyer shall also hold the new item created by processing in custody on our behalf.
(3) In the event that the Retained Goods are combined, blended or mixed inseparablyin such a way that the buyer's/customer's item must be considered the main item, the buyer hereby transfers to us its ownership in the overall item pro rata commensurate with the value of the Retained Goods to the value of the other combined or mixed items. The buyer/customer shall also hold the Retained Goods on our behalf. If the Retained Goods are combined or mixed with movable items belonging to a third party in such a way that the item belonging to the third party must be regarded as the main item, the buyer/customer hereby assigns to us any claim for remuneration which the customer may have against a third party in the amount equal to the invoiced value of the Retained Goods.
(4) The item created as a result of combining or mixing (hereinafter: New Item) or the (co-)ownership rights in the New Item attributable to us pursuant to § 6 (2) and (3) and the claims of the remuneration assigned pursuant to § 6 (6), serve as security for claims in the same way as the Retained Goods themselves pursuant to § 6 (1).
(5) The buyer/customer may re-sell the Retained Goods or the New Item in the usual course of business subject to reservation of title. The buyer/customer must ensure that amounts due owing to such resale are assigned to us pursuant to § 6 (6) and (7). The buyer/customer may not make any other disposals.
(6) The buyer/customer hereby assigns to us its claims from the onward sale of the Retained Goods or the New Item together with all ancillary rights. These serve as security for us to the same extent as the Retained Goods. If the buyer/customer sells the Retained Goods or the New Item along with other goods which were not supplied by us, the claim shall only be deemed to have been assigned in the value of the final invoice amount for resale of the Retained Goods. For the resale of goods in which we have co-ownership pursuant to § (2) or (3) or statutory provisions on combining, blending and mixing, the claim is deemed to have been assigned pro rata based on our co-ownership share. If the buyer/customer is a works contractor for building construction, an outside plant or part thereof and if the customer uses Retained Goods or New Items to provide its service under the contract of works and if it can demand a security payment pursuant to §§ 648 German Civil Code or § 648a German Civil Code from the customer owing to the claims from the contract for works and services, the buyer/customer assigns to us its remuneration claims against the customer with the above-mentioned security rights in the amount of its payment obligation for the Reserved Goods.
(7) If the buyer/customer includes claims for amounts from resale of Retained Goods or New Items in a current account with any of its customers, it hereby assigns to us any balance or final credit balance, which may exist in its favour, the amount assigned corresponding to the total amount of claims included in such current account from resale of the Retained Goods or New Items. § (6) sentences 3 and 4 shall apply mutatis mutandis.
(8) The buyer/customer is authorised to collect any claims assigned to us under the resale of the Retained Goods or the New Item. This shall not affect our right to collect the claim ourselves. However, we undertake not to collect such claim until the conditions set out in § 6 (9) have been satisfied. The buyer/customer may not assign claims from selling on to third parties.
(9) We may revoke the authority to re-sell the Retained Goods or a New Item pursuant to § 6 (5) and the authority to collect claims assigned to us pursuant to § 6 (8) if the buyer/customer defaults on payment or ceases payments or in the event of an application to commence insolvency proceedings or in other cases where the buyer's/customer's credit standing and trustworthiness is impaired. If we revoke the authority to re-sell or collect, the buyer/customer must inform its customers without undue delay that claims have been assigned to us and provide us with whatever information and documents necessary to enable us to collect such claims. Moreover, in such an event the buyer/customer must release and transfer to us any securities to which it is entitled with regard to customer claims.
(10) The buyer/customer is obliged to inform us in writing of pledges of the subject of the agreement and/or the assigned claim or of other claims which third parties file with regard to the subject of the agreement without undue delay and in writing. In the case of pledges, we should be sent at the same time a copy of the pledge report so that we can proceed against this, in particular so that we can file third-party actions in opposition pursuant to § 771 German Code of Civil Procedure. If the third party is unable to reimburse us for the costs incurred in or out of court of an action pursuant to § 771 German Code of Civil Procedure, the buyer/customer is liable for our deficit.
(11) The buyer/customer undertakes to look after the Retained Goods or the New Item. In particular, the customer must insure the Retained Goods adequately against the risk of fire, water damage and theft on a replacement-value basis at its own cost. It hereby assigns its claims under the insurance policies to us. We hereby accepted the assignment.
(12) If the reservation of title or the claim assignment is invalid or unenforceable owing to mandatory foreign legal requirements, the parties shall be deemed to have agreed to the security which corresponds to the reservation of title or the claim assignment in this respect. If this requires collaboration from the buyer/customer, it must take whatever measures are necessary to create and maintain the security.
(13) We hereby undertake to release the securities to which we are entitled at the buyer's/customer's request to the extent that the realisable value of our security exceeds the claim secured by more than 10 %; we will elect which securities to release at our discretion.
§ 7 Warranty, Notification of Defects
(1) We warrant that our goods correspond to the specification applicable on conclusion of this agreement and that they are free of manufacturing and material defects. We do not assume any further warranty. In particular, the buyer/customer must ensure that the goods are suited to the purpose intended by it.
(2) Departures in colour, quality of the surface, measurements, firmness and water absorption caused by the raw materials used and the way in which they are processed are not deemed to be defects.
(3) The buyer/customer must inspect the goods without undue delay after delivery and in as far as this is practicable in the normal course of business. It must report any obvious defects in writing without undue delay, but no more than seven days after receipt, and any latent defects in writing without undue delay after discovery, but no more than three days after discovery. Claims may not be asserted after these periods have expired. The complaint regarding the defects shall be deemed to have been made in a timely manner if it is sent by the applicable expiry date.
(4) If faulty goods are delivered and complaint is duly and properly filed in accordance with § 7(3), the buyer/customer shall first give us the opportunity to improve the goods or replace them, as we so choose ("Subsequent Performance"). The buyer is entitled pursuant to the statutory provisions to rescind the contract, to demand compensation pursuant to § 8 or to reduce the purchase price if the Subsequent Remedy is unsuccessful, unreasonable for the buyer , if we refuse to provide Subsequent Performance without legitimate cause, or the Subsequent Performance is not executed within a reasonable deadline set in writing by the buyer/customer. In the event of minor defects the contract may not be rescinded.
(5) If our operational, maintenance or processing remarks are not followed, if changes are made to the goods, parts are exchanged and expendable supplies are used, which do not correspond to the original specifications, we shall not be liable if the defect is based thereon.
(6) If the buyer/customer asserts claims owing to a defect in a third-party product delivered by us and if the supplier of the third party product does not work as our vicarious agent, the defect claims of the buyer/customer are initially restricted to the assignment of our defect claims against the third party in as far as we only forwarded the goods as a third-party product to the buyer/customer. If the buyer/customer cannot successfully assert its defect claims against the third party out-of-court, we shall have secondary liability for defects in accordance with the provisions of this section.
(7)The limitation period for any claims which the buyer/customer may have, other than claims pursuant to § 8, is 12 months from delivery of the goods concerned. This does not apply if the goods are usually used for construction and caused the defect or we failed to give notice of the defect with malicious intent or assumed a warranty for the quality of the goods. The statutory provisions on the limitation period for recourse claims (§§ 478, 479 German Civil Code) remain unaffected.
§ 8 Liability
(1) We shall be liable for our own intent and gross negligence and intent and gross negligence of our legal representatives and vicarious agents. If we or our legal representatives or vicarious agents have not acted with intent, liability is restricted to the foreseeable damage typical for this type of contract.
(2) Also we shall be liable in the event of negligent injury to life, limb and health caused by us, our legal representatives or vicarious agents and in the event of wilful failure to disclose a defect or in the event of assumption of a guarantee. In the latter case, the extent of liability is based on the wording of the guarantee.
(3) We shall also be liable if we, our legal representatives or vicarious agents negligently breach duties which are material for due execution of the contract and on which the buyer can reasonably expect to be able to rely. If we or our legal representatives or vicarious agents have not acted with intent, liability is restricted to the foreseeable damage typical for this type of contract.
(4) We shall also be liable in instances of mandatory statutory liability, for example under the German Product Liability Act (Produkthaftungsgesetz).
(5) In all other respects, liability is excluded irrespective of the legal reason.
(6) The buyer/purchaser shall notify and consult us comprehensively and without undue delay if it intends to claim for damages in accordance with the aforementioned provisions. The buyer/purchaser shall provide us with an opportunity to examine the loss occurrence.
§ 9 Place of Performance, Place of Jurisdiction, Applicable Law
(1) The place of fulfilment is the registered office of our company.
(2) Schwetzingen shall be the exclusive place of jurisdiction for any disputes for both parties. However, we also have the right to file claims at the general place of jurisdiction of the buyer/customer. This provision also applies to claims from bills of exchange, cheques or deeds.
(3) These General Business Terms and Conditions and all legal relationships between us and the buyer/customer shall be governed exclusively by German law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
§ 10 Severability
If an individual provision of these General Business Terms and Conditions should be or become invalid, this shall not affect the legal validity of the other provisions. Should that occur, the parties shall negotiate in good faith to replace the invalid term or condition with a valid term or condition, which reflects as closely as possible the economic purpose of the invalid term or condition. The same shall apply in the event of a lacuna.