Section 1 GENERAL PROVISIONS, SCOPE OF APPLICATION
These General Terms and Conditions of Sale (hereinafter referred to as "GTC") of Eifelglut GmbH (hereinafter referred to as "Supplier") apply to the business relationships with the Supplier's Customers ("Customer"), insofar as the Customer is an entrepreneur (according to section 14 BGB [German Civil Code], a legal entity under public law or a special fund under public law. The object of the business relationship is, in particular, the sale and delivery of products (hereinafter referred to as "Products").
Unless otherwise agreed, the GTC in the version that is valid at the time of the order - in any case in the version last communicated to the Customer in written form - shall also apply as a framework agreement for similar future contracts, without the Supplier having to refer to them again in each individual case.
The GTC shall apply exclusively. Any deviating, conflicting or supplementary terms and conditions of the Customer shall only become part of the contract if and insofar the Supplier has expressly agreed to their validity in writing. This requirement of consent shall apply in any case, e.g. even if the Supplier carries out the delivery without reservation in the knowledge of the Customer's terms and conditions.
Individual agreements made with the Customer in individual cases, including collateral agreements, supplements and/or amendments, shall in any case take precedence over these GTC. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or the Supplier's written confirmation.
Legally relevant declarations and notifications by the Customer in relation to the contract (e.g. setting of deadlines, notification of defects) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax).
Section 2 CONCLUSION OF CONTRACT
Offers made by the Supplier are subject to change and are non-binding. This shall also apply if the Supplier has provided the Customer with catalogues, technical documentation such as drawings, plans, calculations, references to DIN standards, other product descriptions or documents to which the Supplier reserves the property rights and copyrights.
The order placed by the Customer shall be deemed a binding contractual offer. Acceptance of the order requires written confirmation by the Supplier (e.g. order confirmation). Acceptance may also be affected by delivery of the products.
If the Customer wishes to have products refined as part of its order, the Supplier shall first clarify the details with the Customer. The Customer shall then receive a corresponding written offer from the Supplier, which requires written acceptance by the Customer.
A contract between the Supplier and the Customer is concluded upon acceptance.
The Supplier reserves the right to refuse orders and/or to terminate contracts already concluded extraordinarily and without notice if the transmitted print data is criminally relevant and, in particular, contains pornographic, fascist or radical content or otherwise infringing or illegal content. The costs incurred as a result of this and the costs and expenses already incurred up to the time of termination shall be borne by the Customer.
The Customer shall guarantee to the Supplier that the print data does not infringe the rights of third parties, in particular copyrights, trademark rights, personal rights or rights to a name. Furthermore, the Customer guarantees that it is entitled to the necessary rights, licenses and/or rights of use for the commissioning and manufacture of the products by the Supplier. In this respect, the Customer shall grant the Supplier all necessary permissions to the rights, licenses and/or rights of use required to fulfil the order.
Section 3 DELIVERY, TRANSFER OF RISK, DEFAULT OF ACCEPTANCE
Unless otherwise agreed or otherwise regulated below, the products shall be delivered to the destination specified in the order by the Customer. The Supplier is entitled to determine the type of dispatch (in particular, the transport company, dispatch route, packaging). Delivery shall be deemed to have taken place as soon as the Supplier has delivered the products to the carrier, i.e. handed them over to the carrier. The Supplier shall invoice the Customer for the transport costs.
The risk of accidental loss and accidental deterioration of the products shall be passed onto the Customer upon delivery (cf. section 3 para. 1 of these GTC). If the Customer is in default of acceptance, fails to co-operate or if delivery is delayed for other reasons for which the Customer is responsible, the Supplier shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs, transport costs).
Section 4 DELIVERY TIME, DELAY IN DELIVERY
Agreements pertaining to any delivery deadlines shall be made individually and shall only be binding if the Supplier confirms the respective delivery deadline in writing upon acceptance of the order. In the case of refinement according to section 2 para. 3 of these GTC, the respective delivery deadline is only binding if it has been submitted by the Supplier in his written offer and accepted by the Customer in writing accordingly.
If the Supplier is unable to meet binding delivery deadlines for reasons not attributable to him (non-availability of the service), the Supplier shall inform the Customer immediately and at the same time provide a new estimated delivery deadline. If the service is still not available within the new delivery deadline, the Supplier is entitled to withdraw, in whole or in part, from the respective contract; any consideration already provided by the Customer shall be promptly refunded by the Supplier. A case of non-availability of the service in this sense is, in particular, the non-timely supply by the Supplier's supplier if the Supplier has concluded a congruent covering transaction, if neither the Supplier nor the Supplier's supplier is at fault, or if the Supplier is not obliged to procure the service in the individual case.
The occurrence of the Supplier's delay in delivery shall be determined by the statutory provisions. In any case, however, a reminder by the Customer is required.
The Customer's rights according to section 8 of these GTC ("Liability") and the statutory rights of the Supplier, especially in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.
The Supplier is entitled to partial deliveries, insofar as this is reasonable for the Customer.
Section 5 OVERPRODUCTION, OVERSUPPLY
If the refinement of the products is agreed upon in accordance with section 2 para. 3 GTC, overproduction may occur due to production-related reasons.
In such cases the Supplier reserves the right to an oversupply of up to 10% of the agreed quantity.
If overproduction exceeds 10% of the agreed quantity, the Supplier will inform the Customer accordingly. The Customer has the right to reject the overproduction exceeding the 10% limit. In this case, the Supplier is entitled to resell the products rejected by the Customer as special items to third parties, even though the Customer's data is applied to these products.
Section 6 PRICES, PAYMENT TERMS
Unless otherwise agreed in individual cases, the Supplier’s current prices at the time of the conclusion of the contract shall apply, not including statutory value-added tax, if applicable, and not including the costs of transportation. The costs of packaging required for transportation are included in the prices in the case of standard packaging. If special packaging is required, the costs are not included in the prices and will be invoiced separately to the Customer.
Unless otherwise agreed in individual cases, the purchase price shall be due and payable without deduction within fourteen (14) days - from the date of invoicing and delivery of the products.
Upon expiry of the above payment period, the Customer shall be in default. During the default period, the purchase price shall be subject to interests at the respective applicable statutory default interest rate. The Supplier reserves the right to assert additional default damages. With regard to merchants, the Supplier's claim to commercial interest on maturity (section 353 HGB [German Commercial Code]) remains unaffected.
If it becomes apparent following the conclusion of the contract (e.g. by filing an application for the commencement of insolvency proceedings) that the Supplier's claim to the purchase price is jeopardized by the Customer's lack of performance, the Supplier is entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (section 321 BGB [German Civil Code]. This also applies if the Customer is in default with a substantial part of the payment obligations to the Supplier. Further statutory rights to claim damages instead of performance or reimbursement of expenses remain unaffected.
The Customer is entitled to a right of set-off or has the right of retention only to the extent that its claim has been legally established or is undisputed. In the event of defects in the delivery, the Customer's counterclaims, especially pursuant to section 7 of these GTC ("Warranty Rights"), remain unaffected.
Section 7 WARRANTY RIGHTS
The Customer's rights for defects in quality and title are governed by the statutory provisions unless otherwise specified below.
The basis for the Supplier's liability for faults/defects primarily depends on the agreement regarding the quality of the products. If the quality has not been agreed upon, it shall be assessed according to statutory provisions whether a fault/defect exists (section 434 para. 1 sentence 2 and section 3 BGB [German Civil Code].
The Customer's warranty claims require that it has fulfilled his statutory obligations to inspect and give notice of defects (sections 377, 381 HGB [German Commercial Code]. For this purpose, the Customer shall promptly inspect the delivered products upon delivery. If a defect is discovered during the inspection, the Customer shall promptly notify the Supplier of this defect in writing. The Customer shall also promptly notify the Supplier in writing of any hidden defects upon discovery of the hidden defect. To meet the deadline, timely dispatch of the defect notification shall be sufficient. If the Customer fails to notify the defect or if the defect notification is delayed, the products shall be deemed approved. The Supplier's liability for defects not notified or not notified in a timely manner is excluded according to statutory provisions.
If the delivered products are defective, the Supplier may first choose whether to remedy the defect (rectification) or to deliver a defect-free item (replacement) as part of subsequent performance. The Supplier's right to refuse subsequent performance under statutory conditions remains unaffected.
The expenses necessary for inspection and subsequent performance, in particular transport, travel, labor, and material costs, shall be borne/reimbursed by the Supplier if a defect actually exists. However, if the Customer's request for rectification is unjustified, the Supplier may demand reimbursement of the costs incurred, unless the lack of defectiveness was not recognizable to the Customer.
If the subsequent performance has failed or if a reasonable deadline set by the Customer for the subsequent performance has expired unsuccessfully or is dispensable according to statutory provisions, the Customer may withdraw from the contract or reduce the purchase price. Customer claims for damages and/or reimbursement of futile expenses exist only in accordance with section 8 of these GTC ("Liability") and are otherwise excluded.
Section 8 LIABILITY
Unless otherwise provided in these GTC, including the subsequent provisions, the Supplier shall be liable for breaches of contractual and non-contractual obligations in accordance with statutory provisions.
The Supplier shall be liable for damages – regardless of the legal basis – in cases of intent and gross negligence. In cases of ordinary negligence, the Supplier shall only be liable – subject to a less stringent liability standard under statutory provisions –
a) for damages resulting from injury to life, body, or health,
b) for damages resulting from the breach of material contractual obligations, i.e. obligations whose fulfillment is essential for the proper execution of the contract and on whose observance the contractual partner regularly relies and may rely. In this case, however, the Supplier's liability shall be limited to compensation for foreseeable, typically occurring damages.
The liability limitations resulting from paragraph 2 of this provision shall also apply to breaches of duty by persons whose culpability the Supplier is responsible for under statutory provisions. They shall not apply in cases where the Supplier has fraudulently concealed a defect or assumed a warranty for the quality of the goods. The liability limitations shall also not apply to Customer claims under the German Product Liability Act and other mandatory provisions.
The Customer shall indemnify the Supplier from all claims and demands and reimburse the Supplier for any resulting damages, including costs of legal actions, which are asserted due to the infringement of third-party rights or the transmission of criminally relevant or otherwise unlawful or infringing content.
Section 9 RETENTION OF TITLE
The delivered products shall remain the property of the Supplier ("reserved goods") until complete fulfillment of all current and future claims and demands (including any balance claims from current accounts) of the Supplier against the Customer arising from the contract and the ongoing business relationship. This shall apply as far as permissible under the law of the country in which the reserved goods are contractually located. If this law does not permit retention of title to the delivered products but allows retention for similar rights, the Supplier is entitled to assert these rights. The Customer undertakes to support all measures for the protection of ownership or security interests in the delivered products.
The reserved goods may not be pledged to third parties or transferred by way of security until full payment of the secured claims. The Customer must notify the Supplier immediately in writing if and to the extent that an application for the opening of insolvency proceedings is filed or third-party actions (e.g. attachments) are taken against the reserved goods. The Customer is - until revoked pursuant to para. 3 c) of this provision - authorized to resell and/or process the reserved goods in the ordinary course of business. This authorisation for resale/processing is excluded if there is a prohibition of assignment in the internal relationship between the Customer and its purchasers with regard to the customer's claims. In the event of resale/processing, the following shall also apply:
a) The retention of title shall extend to the full value of the products created by processing, mixing or combining the goods subject to retention of title, whereby the supplier shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, the supplier shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined (reserved) goods.
b) Otherwise, the same shall apply to the resulting product as to the reserved goods. The purchaser hereby assigns to the Supplier as security the claims arising from the resale of the reserved goods or the product in full or, in the case of co-ownership, to the extent of the possible Supplier's co-ownership share pursuant to the above paragraph. The Supplier accepts the assignment. The obligations of the Customer specified in no. 2 of this provision shall also apply with respect to the assigned claims.
c) The Customer shall remain authorized to collect the receivables alongside the Supplier. The Supplier shall undertake not to collect the receivables as long as the Customer meets its payment obligations to the Supplier, does not default on payment, no application for the opening of insolvency proceedings has been filed, no other deficiency in its performance capability exists, and the Supplier does not assert the retention of title by exercising a right pursuant to para. 4 of this provision. In the event of occurrence of one of the aforementioned events, the authorization for collection by the Customer shall lapse even without express revocation. In such cases, the Supplier may demand that the Customer disclose the assigned claims and its debtors to the Supplier, provide all necessary information for collection, hand over the relevant documents, and notify the third party of the assignment. Furthermore, in such a case, the Supplier is entitled to revoke the Customer's authorization for resale and processing of the reserved goods.
In the event the Customer breaches the contractual obligations, especially non-payment of the due purchase price, the Supplier is entitled, in accordance with statutory provisions, to withdraw from the contract and/or demand the reserved goods based on the retention of title. The demand for surrender does not simultaneously constitute a declaration of withdrawal; rather, the Supplier is only entitled to demand surrender of the reserved goods and reserve the right of withdrawal. If the Customer fails to pay the due purchase price, the Supplier may assert these rights only if it has unsuccessfully set the Customer a reasonable deadline for payment beforehand or if such a deadline is dispensable according to statutory provisions.
If the realizable value of the securities exceeds the claims of the Supplier by more than 10%, the Supplier shall, upon written request of the Customer, release securities of its choice.
Section 10 LIMITATION PERIOD
Contrary to section 438 para. 1 no. 3 BGB [German Civil Code], the general limitation period for claims arising from defects in quality and title shall be one (1) year from delivery.
The aforementioned shortening of the limitation period does not apply to statutory special provisions regarding limitation periods, such as for buildings (section 438 para. 1 no. 2 BGB [German Civil Code], claims for restitution in rem by third parties (section 438 para. 1 no. 1 BGB [German Civil Code], in cases of fraudulent intent by the Supplier (section 438 para. 3 BGB [German Civil Code], for claims in Supplier recourse upon final delivery to a consumer (section 479 BGB [German Civil Code].
The aforementioned limitation periods under sales law also apply to contractual and non-contractual claims for damages by the Customer arising from a defect in the products, unless the application of the regular statutory limitation period (sections 195, 199 BGB [German Civil Code]) would result in a shorter limitation period in individual cases.
For claims for damages by the Customer pursuant to section 8 para. 2 of these GTC ("Liability"), as well as under the German Product Liability Act, only the statutory limitation periods shall apply.
Section 11 COURT OF JURISDICTION, CHOICE OF LAW
For all disputes arising directly or indirectly from or in connection with the contract, the exclusive – including international – court of jurisdiction shall be the state of Rhineland-Palatinate, provided that the Customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special public fund. The same applies if the Customer is a businessperson within the meaning of section 14 of the BGB [German Civil Code]. However, the Supplier is also entitled to file a lawsuit at the general place of jurisdiction of the Customer. Overriding statutory provisions, particularly regarding exclusive jurisdictions, shall remain unaffected.
These GTC and the business relationship between the Supplier and the Customer shall be governed by the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) is explicitly excluded.
Section 12 SEVERABILITY CLAUSE
Should individual provisions of these GTC be or become wholly or partially invalid, the validity of the remaining provisions shall not be affected thereby.
To the extent that individual provisions have not become part of the contract, invalid, or void, the legal regulations shall apply. If there is no corresponding legal regulation, a provision shall be deemed to have been agreed upon by the parties which they would have agreed upon if they had considered this point from the outset; in doing so, due consideration shall be given to the mutual economic interests in a reasonable and acceptable manner. The preceding sentence applies accordingly in the event of gaps in regulations.
Eifelglut GmbH Brikettfabrik as of: August 2022
