General Terms and Conditions
Saarpor Klaus Eckhardt GmbH, Neunkirchen Kunststoffe KG (Saarbrücken District Court, registration no. HRA 92037), effective June 2021
1 Scope of the General Terms and Conditions
1. These General Terms and Conditions (“GTC”) apply to all of our goods and services supplied to our customers, provided they are entrepreneurs (Section 14 of the German Civil Code – BGB), legal entities under public law or special funds under public law. The GTC apply in particular to contracts concerning the sale and/or supply of movable objects (“Goods”), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 650 of the German Civil Code).
2. Unless otherwise agreed, the version of these GTC, which is valid at the time of the customer’s purchase order, or in any case the version most recently communicated to the customer in text form, shall also apply to similar future contracts as a framework agreement without the need for us to refer to them again in each individual case.
3. Our GTC apply exclusively. Any deviating, contradictory or supplementary terms and conditions from the customer, which we have not expressly agreed to, shall not apply. This requirement for our consent applies in every case, for example even if we carry out the delivery to the customer unconditionally in the knowledge of their terms and conditions.
2 Quotation and contract conclusion
1. Our quotations are non-binding and subject to confirmation. Purchase orders/listings only become binding when we have confirmed them in writing. The same applies accordingly to additions, amendments and ancillary agreements.
2. The information, drawings, diagrams and service or product descriptions included in catalogues, price lists or paperwork related to the quotation are approximate values which are customary in the industry (in particular, we reserve the right to make technical modifications/innovations) unless they have been expressly stated to be binding in our order confirmation as an exception.
3. The verbal or written purchase order for the goods by the customer is deemed to be a binding offer of contract. Unless otherwise stated in the purchase order, we are entitled to accept this offer of contract within two weeks of receipt.
4. We may either accept offers of contracts in writing (for example, by means of an order confirmation) or by delivering the goods to the customer.
3 Pricing
1. Unless otherwise stated, we are bound by the prices contained in our quotations for 30 days from their date; Section 2 (1) first sentence of these GTC shall expressly not be affected by this.
2. The prices in euros stated in the order confirmation plus the relevant statutory value added tax are authoritative. The supply of any goods or services beyond that will be invoiced separately.
3. Unless stipulated otherwise on a case-by-case basis, prices are quoted ex works, excluding freight, postage, insurance and packaging typical of the industry, customs duties, fees, taxes and other public charges.
4. If a major change in wage, material or energy costs occurs, we will be entitled to request a reasonable adjustment to the price, taking these factors into account.
4 Delivery
1. We deliver our goods ex works. However, at the request and cost of the customer, the goods will be sent to another place of destination. Unless otherwise agreed, we are entitled to determine the type of shipment (in particular, carrier, despatch route and packaging) ourselves.
2. The lead time and delivery date will be agreed in writing, or stated by us in writing when we accept the purchase order; they shall only be deemed to be agreed to be approximate. Even if a lead time to a fixed calendar date is agreed, it is still not a commercial transaction within a stipulated period within the meaning of Section 376 (1) of the German Commercial Code (HGB). This requires an additional agreement between the contractual partners to the effect that, for example in the case of seasonal goods or advertising campaigns, the contract will be terminated without further ado by means of withdrawal if the delivery date is not met and, provided we are at fault, damages may be demanded on the grounds non-performance.
3. If our meeting a lead time or delivery date is dependent on the customer’s cooperation (for example, if the customer must provide us with plans or drawings, or samples) and the customer fails to perform their act of cooperation on time and/or properly without it being our fault, then the originally agreed lead time will be extended or the originally agreed delivery date will be delayed by the period of time that lies between the time at which the customer should actually have performed their act of cooperation and the time at which they finally perform it properly. This applies even if we do not send the customer a notice of default regarding an act of cooperation which is due but has not been carried out.
4. Delays in the delivery of goods or services due to force majeure or due to other exceptional events, which we could not foresee at the time of concluding the contract and which we could not avoid, which make it much more difficult or impossible for us to deliver - such as can be the case, in particular, in the event of war, natural disasters, explosion, fire, flood, industrial disputes, unrest, official measures, damage to machinery, failure of our suppliers to deliver, etc. - are not our fault even in the event of binding lead times and delivery dates. Such an event releases us from the obligation to fulfil our contractual obligations and from the obligation to pay damages as soon as we have informed the customer of the event. The customer may also suspend the fulfilment of their counter obligations from the time of this notification; down payments will be refunded. However, if the effects of the claimed hindrance or event are only temporary, then the consequences described above shall only apply for as long as and to the extent that the claimed hindrance prevents us from fulfilling our contractual obligations; in particular we are then entitled to delay the delivery of goods or services by the duration of the hindrance plus a reasonable start-up period. If the hindrance lasts longer than two months then both we and the customer are entitled to withdraw from the part of the contract which has not been fulfilled or to give notice of cancellation of the contract without the customer being able to derive any claims to damages from this.
If the aforementioned hindrances occur at the customer, then the same legal consequences shall also apply to their obligation to accept performance.
5. The supply of goods and services by us is only made expressly subject to the correct, timely and proper delivery from our own upstream suppliers. If our obligation to deliver is cancelled because we have been let down by our upstream suppliers through no fault of our own despite concluding a congruent covering transaction with them, then we will not be obliged to pay damages.
6. The contractual partners are obliged to inform the other party of the start and finish of hindrances in accordance with paragraph 4 and/or 5 without delay.
7. Partial deliveries and partial services are permissible, wherever customary, and will be invoiced separately. They are not permissible by way of exception if the partial fulfilment of the contract is of no interest to the customer.
8. The rights of the customer in accordance with Section 9 (Other liability) of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (for example, due to the impossibility or unreasonableness of the performance and/or supplementary performance), shall not be affected by the provisions in this Section 4.
5 Retention of title
1. We will retain title of the sold goods until the full settlement of all our present and future accounts payable arising out of the purchase agreement and the ongoing business relationship with the customer.
2. The retention of title also covers products created by the processing, mixing or combination of our goods at their full value, whereby we are deemed to be the manufacturer. If a third party retains title in the event of processing, mixing or combination with their goods, then we shall acquire co-ownership in relation to the invoice value of the processed, mixed or combined goods. Apart from the above, the same applies to the created product as to goods supplied with retention of title.
3. However, until revoked, the customer is entitled to sell and/or process such reserved goods or products in the ordinary course of business provided they fulfil their obligations arising out of the business relationship with us on time. However, the customer may neither pledge nor transfer the reserved goods or products as security. The customer is obliged to secure our rights in the event of a resale of the reserved goods on credit terms.
4. The customer shall hereby assign to us all accounts receivable and rights arising out of the resale of reserved goods and products to third parties in total or in the sum of any portion of co-ownership. We hereby accept the assignment.
5. As well as us, the customer remains entitled to collect the accounts receivable from the resale of reserved goods and products. We undertake not to collect the account receivable provided the customer meets their payment obligations to us, they do not lack the ability to perform and we do not assert the retention of title by exercising a right in accordance with paragraph 6. However, if this is the case, we may demand that the customer notifies us of the assigned accounts receivable and their debtors, gives all of the information required for collection, hands over the associated paperwork and informs the (third party) debtors of the assignment. Apart from the above, in this case we are entitled to revoke the customer's authority to continue to resell and process the reserved goods.
6. In the event of conduct by the customer, which is in breach of the contract, in particular if the customer defaults on payment, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or request the return of the reserved goods on the basis of our retention of title. However, a request to return the goods does not automatically constitute a simultaneous declaration of withdrawal; on the contrary, we are also entitled to simply request the return of the goods and reserve the right to withdraw. If the customer does not pay the due purchase price, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without result or the setting of such a deadline is unnecessary in accordance with the statutory provisions.
7. The customer must inform us without delay of any third-party enforcement measures concerning the reserved goods, the accounts receivable that have been assigned to us or other securities and hand over the necessary paperwork for an intervention. This also applies to any other kind of impairments.
8. We will release the securities due to us in accordance with the above provisions at the customer’s request to the extent that the realisable value of the goods supplied under retention of title exceeds the accounts receivable to be secured by more than 10 percent.
6 Material defects
1. Unless otherwise stipulated below, the statutory provisions apply to the customer’s rights in the event of material or legal defects.
2. We assume no liability for public statements made by the manufacturer or other third parties (for example, advertising statements), which the customer has not indicated to us were crucial to their purchasing decision.
3. The customer’s claims for defects are conditional upon them having fulfilled their statutory obligation to inspect and notify defects (Sections 377, 381 of the German Commercial Code, HGB). In the case of construction materials and other goods intended for installation or other further processing, it is understood that an inspection must be undertaken in any case directly before installation or processing, provided the customer is installing or processing the goods themselves. If a defect is apparent upon delivery, inspection or at any other later date, then we must be notified of such without delay at least in text form. If the customer fails to inspect the goods properly and/or fails to notify us of defects, then our liability for the defect which was not notified, not notified on time or properly, will be excluded in accordance with statutory provisions.
4. In the event of a justified, timely notice of defects, we will choose to either rework the rejected goods or supply a faultless replacement. However, our right to refuse supplementary performance under the statutory provisions will not be affected. We are entitled to make the owed supplementary performance dependent on the customer paying the due purchase price. However, the customer is entitled to withhold a reasonable portion of the purchase price in relation to the defect.
5. The customer must give us the necessary time and opportunity for the supplementary performance we owe, in particular must hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer must return the defective item in accordance with the statutory provisions. Supplementary performance constitutes neither the removal of the defective item nor its reinstallation if we were not originally obliged to install it.
6. If we do not fulfil these obligations or do not fulfil them in accordance with the contract within a reasonable time, then the customer may set us a deadline at least in text form, before which we must fulfil our obligations. If this deadline passes without success, the customer may request a price reduction or withdraw from the contract, unless the defect is minor. Alternatively, the customer may undertake necessary reworking themselves or have it undertaken by a third party at our cost and risk. If the reworking has been undertaken successfully by the customer or a third party, then all the customer’s claims will be covered by refunding the reasonable costs that they have incurred. A refund of costs is excluded if the expenses increase because the goods have been transported to another place after we have delivered them, unless this is in accordance with the intended use of the goods.
7. Even in the case of defects, the customer may only claim damages or reimbursement of wasted expenditure in accordance with Section 9 (Other liability) and claims apart from this are excluded.
7 Terms of payment
1. Unless otherwise agreed, all invoices are due for payment without deduction after delivery within 10 days of the invoice date. However, we are entitled to make a delivery only wholly or partially against prepayment at any time even within the scope of ongoing business relations. We will state such a reservation upon confirmation of the order at the latest.
2. If we have undisputedly delivered partially defective goods, our customer is nevertheless obliged to pay for the non-defective portion unless the partial delivery is of no interest to them. Apart from this, the customer may only offset against legally established or undisputed counter-claims or such claims which are related to our claims by way of requiring counter-performance. The customer’s opposing rights in accordance with Section 6 (4), fourth sentence shall not be affected.
3. In the event of non-payment despite an amount being due, we are entitled to charge default interest in the amount of statutory default interest at the time. We reserve the right to assert further default damages. Our claim to commercial default interest (Section 353 of the German Commercial Code) with respect to merchants remains unaffected.
4. In the event of delayed payment, we may, after informing the customer in writing, suspend the fulfilment of our obligations until receipt of the payments.
5. Bills of exchange and cheques will only be accepted by arrangement and only subject to discharge and conditional upon their discountability. Discount charges will be charged from the date the invoice amount is due for payment. Liability for the correct presentation of the bill of exchange and for protesting a bill of exchange is excluded.
6. If the customer uses a central settlement company, the settlement of the invoice with the effect of discharging the debt only occurs when the payment is credited to our account.
7. If it becomes apparent after concluding the contract, that our claim to payment is at risk due to the customer lacking the ability to pay, then we may refuse performance and set the customer a reasonable deadline in which they must pay concurrently with delivery or must provide security. If the customer refuses or the deadline passes without success, then we may withdraw from the contract and demand compensation for non-performance; the statutory provisions concerning the dispensability of setting a deadline shall remain unaffected.
8 Sales aids
Sales and presentation aids which are provided to the customer free of charge, remain our property and may be requested back at any time. During the use of the sales and presentation aids by the customer, every associated risk transfers to them. The customer undertakes to only fill the sales and presentation aids with our goods and to pay compensation in the event of loss or damage that they are responsible for.
9 Other liability
1. Unless otherwise stated in these GTC, in particular in the provisions below, other and further claims by the customer against us are excluded. This applies in particular to claims for damages for delays, impossibility of performance, culpable breach of contractual obligations to perform or secondary obligations, culpa in contrahendo and tort. Therefore, we are not liable for damages which have not occurred to the delivered goods themselves either. Above all, we are not liable for lost profit or other financial losses of the customer.
2. The above liability limitations do not apply in the event of intent or gross negligence on our part or if we have breached essential contractual obligations. In the event of a breach of an essential contractual obligation or gross negligence on our part, we will only be liable for damages typical of such a contract which could reasonably be foreseen upon conclusion of the contract.
3. Furthermore, the liability limitation does not apply in those cases in which there is liability for personal injury or material damage to privately used objects according to the German Product Liability Act in the event of defects on the delivered goods. Furthermore, it does not apply in the event of injury to life, body or health or in the absence of warranted characteristics if and to the extent that the purpose of the warranty was to protect the customer from damages which have not occurred on the delivered goods themselves.
4. The customer shall only have the right of recourse against us to the extent that the customer has not made any agreement with their customer which goes beyond the statutory claims for defects. Furthermore, Section 6 (6) final sentence shall apply to the scope of the rights of recourse.
5. If our liability is excluded or limited, this shall also apply to the personal liability of our legal representatives and vicarious agents.
10 Non-disclosure
Unless expressly agreed otherwise in writing, the information that this contractual relationship is based upon is not deemed to be confidential.
11 Final provisions
1. The place of fulfilment, including within the scope of supplementary performance, is the location of our factory.
2. The law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods, shall apply to these GTC and the entire legal relations between the customer and us.
3. The place of jurisdiction for all disputes arising out of or in connection with this contractual relationship is our registered office. However, we are also entitled in every case to take legal action at the place of fulfilment of the delivery obligation at the customer’s registered office in accordance with these GTC or an individual agreement which takes precedence. Statutory provisions, which take precedence, in particular regarding exclusive competence, shall not be affected.
4. Should a provision of these Terms and Conditions or a provision within the scope of other agreements be or become void, the validity of the rest of the agreement shall not be affected. In this case, the void provision will be deemed to be replaced by such valid provision that is equivalent or as close as possible to the economic result the void provision was aimed at. The same shall apply mutatis mutandis in the event of a gap in the agreement.
5. The reciprocal contractual rights may only be transferred by mutual agreement.
Stand: 03/2023
