General Terms and Conditions of the DBF – Deutsche Basalt Faser GmbH
(hereinafter: the DBF)
§ 1 Scope of Application
These terms and conditions apply exclusively to entrepreneurs, legal entities under public law or special funds under public law according to § 310 subparagraph 1 German Civil Code.
The DBF does not acknowledge conflicting terms and conditions of the buyer. Those are hereby explicitly objected to. They are also not acknowledged if the DBF does not explicitly object to the conflicting terms and conditions again. Differing conditions are only acknowledged by the DBF if they explicitly agree to the validity in writing.
§ 2 Offers and Conclusion of Contracts
1. The offers of the DBF are made non-bindingly and without commitment unless something else explicitly results from them. Conclusions and agreements do only become binding for the DBF when the order is confirmed in writing.
2. The DBF reserves the right of ownership, copyright and the rights from patent law and the Utility Models Act concerning documentation like brochures, illustrations, quotations and other documents that are related to the offers. Corresponding documentation must neither be used, copied nor disclosed to third parties without the agreement of the DBF. They are to be handed back to the DBF immediately in case the order is not issued. This does also apply to written documents designated as “confidential”.
3. The statutory value-added tax is not included in the prices. It is reported separately in the invoice at the statutory rate on the date of invoicing.
§ 3 Delivery Time, Terms of Delivery, Delays
1. Delivery times and deadlines indicated for the delivery are estimates only for delivery ex works or ex warehouse. Delivery deadlines are only binding if they were explicitly confirmed as binding in writing by the DBF. The delivery deadline starts on the day on which the agreement concerning the order between the buyer and the DBF is present in writing. The delivery deadline is adhered to if the goods have left the plant within this deadline. If the shipping or pick-up is delayed due to reasons that the DBF is not responsible for, the deadline is considered as met when the readiness for dispatch is announced within the agreed deadline.
2. If the failure to meet a deadline is due to incorrect or unpunctual supply by the supplier or in the event of unforeseeable obstacles beyond the control of the DBF or their suppliers, the deadline shall extend reasonably.
3. If the buyer causes a delay of the shipping or of the delivery of the delivery items, the DBF shall be entitled to charge the costs incurred by that delay to the buyer.
4. The buyer can only make claims arising from delay if he is not in default with his obligations under this business relationship himself.
§ 4 Transfer of Risk at Shipping/on Shipment
If the goods are sent to the buyer upon his request, the risk of accidental destruction or the risk of accidental deterioration is transferred to the buyer at the moment when the goods are dispatched to the buyer. This applies irrespectively of whether the goods are sent from the place of fulfillment or of who is bearing the freight charges.
§ 5 Payment
1. The purchasing price is to be paid immediately after delivery without cash discount in a manner that the DBF has it at its disposal on the due date unless otherwise agreed or stated in the invoices. Costs of the monetary transactions are to be borne by the buyer.
2. The buyer is in default 10 days after the outstanding amount’s due date at the latest without the need for a reminder. When exceeding the date of payment, the buyer owes interests of 8 percentage points above the base interest rate, unless higher interest rates have been agreed on. The enforcement of a further damage caused by delay is reserved.
§ 6 Right of Retention/Offset
Rights of retention of the buyer as well as an offset concerning not explicitly acknowledged or not legally recognized claims are not accepted.
§ 7 Warranty
Warranty rights of the buyer presume that the buyer attended to his duties to inspect for and give notification of defects owed according to § 377 German Commercial Code.
The DBF safeguards that the delivered goods were manufactured flawlessly according to the agreed scope of services. If the DBF delivers according to drawings, specifications, patterns etc. of the buyer, the buyer bears the risk for the applicability for the intended purpose. The time of the transfer of the risk is essential for the condition of the goods as per agreement.
The DBF shall not be liable for defects caused by unsuitable or improper use, faulty assembly or commissioning by the buyer or third parties, normal wear and tear, faulty or negligent handling, nor for the consequences of improper modifications or repair work carried out by the buyer or third parties without the consent of the DBF.
If an acceptance of the goods or an initial sample inspection has been agreed on, the notification of defects which the buyer could have discovered with careful acceptance or initial sample inspection is excluded.
5. Contractual claims of the buyer arising from and in connection with the delivery of the goods shall become statute-barred one year after delivery of the goods. The liability of the DBF for intentional and grossly negligent breaches of duty, culpably caused damage to life, limb and health shall remain unaffected by this.
§ 8 Reservation of Ownership
All delivered goods remain property (goods subject to retention of title) of the DBF until the fulfillment of all claims, in particular also the respective current account balance claims, to which the DBF is entitled within the scope of the business relationship (title retention until all outstanding accounts have been paid). This applies also to any debts arising or incurred in the future and also if payments are made for specifically designated claims. This title retention until all outstanding accounts have been paid shall finally lapse with the settlement of all claims still outstanding at the time of payment and covered by this title retention.
Processing and treatment of the goods subject to retention of title shall take place for the DBF as the manufacturer according to § 950 German Civil Code without obligation of the DBF. The processed and treated goods are seen as goods subject to retention of title according to no. 1. In case of processing, combination and mixing of the goods subject to retention of title with other goods by the buyer, the DBF shall be entitled to co-ownership pro rata to the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If property of the DBF expires through combination or mixing, the buyer hereby transfers to the DBF the ownership rights to the new stock or item to which he is entitled to the extent of the invoice value of the goods subject to retention of title already now and keeps them in safe custody free of charge for the DBF. The co-ownership rights shall be deemed as goods subject to retention of title according to No. 1.
The buyer may only sell the goods subject to retention of title in the ordinary course of business at his normal terms and conditions and as long as he is not in default, provided that the claims arising from the resale in accordance with No. 4 and 5 are transferred to the DBF. He shall not be entitled to dispose of the goods subject to retention of title in any other way.
The claims arising from the resale of the goods subject to retention of title together with all securities which the buyer acquires for the claim shall already now be assigned to the DBF. They serve as security to the same extent as the goods subject to retention of title. If the goods subject to retention of title are sold by the buyer together with other goods not sold by the DBF, the claim from the resale shall be assigned to the DBF in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods sold. In the event of the sale of goods in which the DBF has co-ownership shares pursuant to No. 2, the DBF shall be assigned a part corresponding to the co-ownership share.
The buyer is entitled to collect claims from the resale. This redemption authorization shall expire in the event of revocation by the DBF, but at the latest in the event of default in payment, non-redemption of a bill of exchange or application for the opening of insolvency proceedings. The DBF will only make use of the right of revocation if it becomes apparent, after the conclusion of the contract, that the payment claim arising from this or other contracts with the buyer is at risk due to the buyer’s inability to pay. At the request of the DBF, the buyer shall be obliged to inform his customers immediately of the assignment to the DBF and to provide the DBF with the documents required for collection.
§ 9 Liability
Unless otherwise stated below, other and further claims of the buyer against the DBF are excluded. This applies in particular to claims for damages arising from delay, impossibility of performance, culpable breach of contractual accessory obligations, violation of any precontractual obligations (culpa in contrahendo) and tort. The DBF is therefore not liable for damage that has not occurred to the delivered goods themselves. Above all, the DBF shall not be liable for loss of profit or any other financial loss of the buyer.
The above limitations of liability shall not apply in the event of intent, gross negligence on the part of legal representatives or executive employees or culpable breach of essential contractual obligations. In the event of culpable breach of essential contractual obligations, the DBF shall be liable only for reasonably foreseeable damage typical of the contract, except in cases of intent or gross negligence on the part of its legal representatives or executive employees.
Furthermore, the limitation of liability shall not apply in the event of damage to life, limb or health resulting from an intentional or negligent breach of duty by the DBF or an intentional or negligent breach of duty by a legal representative or vicarious agent of the DBF.
§ 10 Miscellaneous
This contract and all legal relationships between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
The exclusive place of jurisdiction for all disputes arising from this contract shall be the registered office of the DBF.
§ 11 Validity
These General Terms and Conditions are valid from 01 October 2018.