General Terms and Conditions of Sale of SE Tylose GmbH & Co. KG
1. Offer and conclusion of contract, written form
a) For our present and future deliveries, the following terms and conditions shall apply exclusively. Conflicting or divergent terms and conditions of the buyer shall not become part of the contract, even if we do not expressly contradict them. Even if we refer to a letter that contains or refers to the terms and conditions of the buyer or a third party, this does not constitute agreement with the validity of those terms and conditions. In addition to our terms of sale, the statutory provisions applicable in the individual case, the INCO-TERMS of the International Chamber of Commerce in Paris as well as the Uniform Rules and Customs for Documentary Credits (ERA) in the current version shall apply.
b) Our offers are non-binding and subject to change. The contract is concluded only with our order confirmation or through our performance, unless a written contract has already been concluded.
c) Amendments and supplements to the terms of the contract require written form to be effective. Transmission by telecommunication, in particular by fax or e-mail, is sufficient to comply with the written form requirement.
2. Scope of performance, guarantees and quality
a) Our order confirmation, and, in the absence of such, our invoice shall define the scope of the performance. Delivery dates are non-binding, unless they have been expressly designated as binding by us. The quality of the ordered goods is determined exclusively according to the standard specification, unless a different specification has been agreed on.
b) We are entitled to partial delivery insofar as this is reasonable for the buyer according to the circumstances of the individual case. The invoices issued for such partial delivery are to be paid irrespective of the total delivery.
c) Product details and usage criteria in catalogues, leaflets, safety data sheets and other information material which we make available to the buyer, as well as product descriptions, are neither to be understood as guarantees for a particular quality of the goods nor as a mere agreement on the quality; any guarantees or agreements respective quality need to be expressly agreed in writing. The same applies to samples and specimens handed over to the buyer.
d) The buyer is to decide on the suitability of the goods for a specific purpose. Details and information provided as part of our advice does not exempt the buyer from carrying out his own tests and trials.
3. Prices and payment / set-off / right of retention
a) Unless otherwise stated in the order confirmation, our prices apply "ex works", including packaging. The weight / quantity of the delivery are decisive for the calculation.
b) The statutory value added tax is not included in our prices; it will be shown separately on the invoice at the statutory rate on the date of invoicing.
c) Unless otherwise stated in the order confirmation, the purchase price is due net (without deductions) within 30 days of the invoice date. The statutory provisions regarding the consequences of default in payment apply.
d) The buyer is responsible for any customs duties, fees, taxes and other public charges.
e) Cheques or Bills of exchange will only be accepted subject to prior written agreement, on account of performance and with reservation as to the eligibility for central bank credit. The buyer bears all costs incurred for redemption of cheques, bills of exchange and bank transfer.
f) In case of default of payment, as well as in case of other reasonable doubts as to the solvency or creditworthiness of the buyer, we are entitled to demand advance payment for deliveries or services not yet carried out and to demand payment of all claims resulting from the business relationship immediately. Our delivery obligation is suspended as long as the buyer is in arrears with a due payment and the buyer has not made a corresponding advance payment. Other legal rights to which we are entitled remain unaffected.
g) Offsetting against the buyer's counterclaims or withholding payments due to such claims is only permitted if the counterclaims are undisputed or legally established or arise from the same order under which the delivery in question was made.
4. Force majeure
a) We are not liable for the impossibility of delivery or for delays in delivery if these are due to force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, lack of workers, energy or raw materials, difficulties in obtaining necessary official approvals, pandemics or epidemics, official measures, embargoes, boycotts or the lack of, incorrect or late delivery from our suppliers despite a contract closed by us congruent hedging transaction) for which we are not responsible.
b) In the event of hindrances of a temporary nature pursuant to a), the delivery or performance periods shall be extended or the delivery or performance dates postponed by the period of the hindrance plus a reasonable start-up period. If the delivery or acceptance is delayed by more than one month pursuant to subsection a), each of the parties are entitled to withdraw from the contract with regard to the quantity affected by the delivery or acceptance disruption, to the exclusion of all further claims, unless such party is responsible for the performance impediment.
c) We are not obligated to procure the goods from third parties.
5. Place of fulfillment and Transfer of risk
Unless the order confirmation states otherwise, delivery will be made “ex works”, which is also the place of fulfillment for delivery and any subsequent fulfillment. At the buyer's request and expense, the goods can be sent to another destinaion (sale by dispatch/ Versendungskauf). Unless otherwise agreed, we are entitled to determine the type of dispatch ourselves (in particular the transport company, route, packaging).
6. Proprietary reservation
a) We reserve ownership of the goods delivered by us (hereinafter “reserved goods”) until the delivered goods have been paid for in full. In accordance with the following regulations, the buyer is entitled to process and sell the reserved goods in the ordinary course of business.
In case the buyer behaves in breach of contract, especially if payment is delayed, we are entitled to demand return of the purchased goods. The withdrawal of the title retention goods by us implies a rescission of the contract. Upon redemption of the goods, we are entitled to exploitation of the goods. The proceeds from the sale – minus appropriate costs for realisation – are to be deducted from buyer’s liability.
Any processing of the title retention goods shall be free of charge on our behalf. We are considered the manufacturer according to § 950 German Civil Code (Bürgerliches Gesetzbuch “BGB”) and directly acquire ownership of the newly manufactured items.
In the case of processing of other goods by the buyer which are not our property, we are entitled to co-ownership of the new item in the ratio of the invoice amount (including value-added tax) of our goods to the other processed goods at the time of processing.
If title retention goods are combined, mixed or blended in accordance with §§ 947, 948 BGB with goods which do not belong to us, we shall become co-owners in accordance with the legal provisions. If the buyer acquires sole ownership by combining, mixing or blending, he already transfers co-ownership to us according to the ratio of the value of our goods (invoice amount including VAT) to the other commodity at the time of the compounding, mixing or blending,
In such cases, the buyer shall keep the property owned or co-owned by us, which is also deemed to be title retention goods within the meaning of the provisions of section 6, free of charge.
b) The buyer assigns the receivables from the resale of title retention goods to us in the amount of the value of the title retention goods - if necessary in the proportion of our co-ownership share in the sold product - to secure our claims. We accept the assignment.
c) The buyer is only entitled to transmit the title retention goods in the ordinary course of business on the basis of a purchase contract or a contract for work if the receivable from the resale is passed on to us. The buyer shall not be entitled to any other disposal of the title retention goods. The buyer must notify us immediately in writing if an application to open insolvency proceedings is or has been filed (including a third-party application) or if third parties’ access (e.g. seizures) the goods belonging to us.
The buyer remains, in addition to us, empowered to collect the receivables. We undertake not to collect the receivables as long as the buyer complies with his payment obligations, there is no defect in his performance and no case of Section 6 a), sentence 3. However, if this is the case, the buyer is to notify us of the assigned claims and the debtors, make available all the necessary information for collection, hand over the related documents and notify the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the buyer's authority to further sell and process the goods subject to retention of title. Furthermore, the buyer must provide all information on the stock of title retention goods and, at our request, to designate goods owned by us as such.
d) If the realizable value of the securities assigned to us exceeds the claim to the buyer by more than 10%, we are obligated to release securities of our choice at the request of the buyer or a third party affected by our excess security.
e) The buyer bears the risk for the goods delivered by us under retention of title. He is obligated to keep the goods free of charge and to insure them adequately against loss (theft, fire, etc.). He assigns to us the claim against the insurance in the event of a loss upon conclusion of the purchase agreement, namely a first-rate partial amount equal to the purchase price of the goods delivered by us and in our property. We accept the assignment.
f) If – in the case of a delivery abroad – the retention of title is not permitted in the above-mentioned extent, our above-mentioned rights are limited to the legally permissible extent in the country of the buyer. At the very least, the goods are delivered under simple retention of title, i.e. the goods remain our property until payment for respective goods has been effected.
7. Claims for defects
a) In principle, we are not liable for defects that the buyer knows about when concluding the contract or does not know about due to gross negligence (§ 442 BGB). Furthermore, the buyer's claims for defects assume that he has complied with his statutory inspection and reporting obligations (§§ 377, 381 German Commercial Code, –Handelsgesetzbuch “HGB”). In the case of building materials and other goods intended for installation or other further processing, an inspection must always be carried out immediately before processing.
The obligation to inspect and report the defects in accordance with § 377 HGB applies as well to the buyer, who is an entrepreneur but not a merchant in the sense of the law.
b) If a defect becomes apparent during delivery, inspection or at any later point in time, we must be notified immediately in writing. Detectable defects must be reported to us in writing immediately, but no later than two weeks after delivery. Defects that cannot be identified during inspection must be reported to us in writing immediately after discovery. Packaging damage and loss of goods shall be noted in the shipping documents or notified to the delivering freight forwarder and to us not later than by the 6th day after receipt.
c) Duly reported defects in the delivered goods will – at our option, taking into account the interests of the buyer – be remedied by rectification of the defect or by delivery of defect-free goods. If these measures do not finally lead to success, the buyer is entitled to the statutory rights, in particular the right of reduction and withdrawal. We are entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to withhold a portion of the purchase price that is appropriate in relation to the defect.
d) The buyer must give us the time and opportunity necessary for the subsequent fulfillment owed, in particular to hand over the complained about goods for inspection purposes. In the event of a replacement delivery, the buyer must return the defective goods to us upon our request in accordance with the statutory provisions; however, the buyer has no right to return the item. Goods which were reported as defective may only be returned with our express consent. In the case of justified complaints, we will reimburse the costs of the lowest cost shipping option.
e) The limitation period for claims for defects is 12 months, calculated from delivery. This does not apply if the purchased item was used for a building in accordance with its usual manner of use and caused its defectiveness. Mandatory statutory provisions on limitation such as liability for the assumption of a guarantee, liability for intentional and grossly negligent acts, for injury to life, body or health, liability under the Product Liability Act and the regulations on the sale of consumer goods, in particular the supplier recourse according §§ 478, 479, 445a Paragraph 1 BGB remain unaffected. The buyer's claims for damages or reimbursement of wasted expenses (§ 284 BGB) shall only exist in accordance with the following Section 8 and 9, even in the case of defects in the goods.
8. Liability
a) For damages, regardless of the legal basis, we are liable in accordance with the statutory provisions, if the buyer claims damages, which are based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents.
b) In addition, in the event of simple negligence, we are only liable in accordance with the statutory provisions if we violate an essential contractual obligation; in this case, however, the liability for damages is limited to the foreseeable, typically occurring damage. An essential contractual obligation exists if it is an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the buyer regularly trusts and can rely. Indirect damage and consequential damage that are the result of defects in the delivered goods are also only eligible for compensation if such damage is typically to be expected when the delivered goods are used as intended.
In the case of simply negligent violation of non-essential contractual obligations our liability is excluded.
c) The above limitation of liability does not apply in the event of damage resulting from injury to life, body or health or in cases of mandatory legal liability, in particular under the Product Liability Act or in the case of a guarantee.
d) Unless otherwise stated in these terms and conditions and in particular in this section 8, we are liable in accordance with the statutory provisions.
e) Insofar as liability for damages is excluded or limited, this also applies with regard to the personal liability for damages of our executive bodies, employees, legal representatives and other vicarious agents.
9. Statute of limitations
Limitation periods in accordance with Section 7.e) also apply to the buyer's contractual and non-contractual claims for damages that are based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter statute of limitation in the individual case. Mandatory statutory statutes of limitations such as liability for intentional and grossly negligent actions, for injury to life, body or health, and liability under the Product Liability Act remain unaffected.
10. Intellectual Property Rights / Trademarks / Advertising
a) When using our goods, the buyer must take into account all existing industrial property rights (in particular, trademarks and patents). Product names and, in particular, trademarks, in which we are entitled to exclusive rights to protection or to use or which are left to us for use, may only be used with our express written consent in connection with the products manufactured by the buyer. Notices of the buyer on business relations with us for advertising purposes require our explicit written consent.
b) We reserve the ownership and copyright of all offers submitted as well as illustrations, calculations, brochures, product samples and other documents and aids made available to the buyer. The buyer may not make these items, either as such or in terms of content, available to third parties, disclose them, use them himself or through third parties, analyse them or reproduce them without our express consent. Upon request, he must return these items to us in full and destroy any copies that may have been made if they are no longer required by him in the normal course of business or if negotiations do not lead to the conclusion of a contract. Excluded from the obligation to destroy is the storage of electronically provided data for the purpose of standard data backup.
11. Security
If our goods fall under the Hazardous Substances Ordinance, the buyer is obligated to observe our productspecific safety data sheet during storage and processing, or in case of resale of the goods to transmit the data corresponding to the purchaser. Latest safety data sheets are available from us. Insofar as the goods delivered by us are classified as dangerous goods, they may be stored and transported only in the approved packaging and transport means as well as with the mandatory labeling.
12. General provisions
a) Should any provision of these terms and conditions be or become invalid, this shall not affect the validity of the other provisions of these terms and conditions and of the contract. References in these terms and conditions to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are amended or expressly excluded in these terms and conditions of Sale.
b) The law of the Federal Republic of Germany shall apply exclusively. The application of the UN Convention on Contracts for the International Sale of Goods is excluded
c) The place of fulfillment for our delivery obligations is the place from which delivery takes place.
d) If the buyer is a merchant or entrepreneur (§ 14 BGB), the exclusive - including international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our place of business; however, we are also entitled to sue the buyer at his local court or, in the case of natural persons, at his place of residence. Mandatory legal provisions regarding exclusive places of jurisdiction remain unaffected by this regulation.
13. Export of Goods
a) The buyer shall check whether the contract violates the provisions of German, US and other applicable national, EU or international foreign trade law regulations or embargoes or other sanctions based on the information known to him and notifies us of a violation or a risk of a breach before the conclusion of the contract - and if this was not possible due to lack of knowledge - immediately.
b) The Buyer shall check and, if applicable, notify whether the goods to be delivered are listed in the export list (Annex to the Foreign Trade and Payments Regulation) or in the Annex to the EU Dual-Use Regulation, Regulation (EU) No. 2021/821.
The fulfillment of the contract is subject to the condition that there are no obstacles to the delivery due to US or other applicable national, EU or international foreign trade regulations as well as no embargoes or other sanctions.
c) The Buyer shall comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America or international law, as well as any other country of destination and, if necessary, assist us in complying with them free of charge.
SE Tylose GmbH & Co. KG 2024
