Terms & conditions
1. Area of application
The general terms and conditions of sale of the company colorplasticchemie Albert Schleberger GmbH – hereinafter referred to as cpc – shall apply exclusively. cpc does not recognise any terms and conditions of the purchaser that conflict with or deviate from these terms and conditions of sale, unless cpc has exclusively agreed to their validity in writing. The Terms and Conditions of Sale shall also apply if cpc carries out the delivery to the purchaser without reservation in the knowledge that the purchaser’s terms and conditions conflict with or deviate from our Terms and Conditions of Sale. All offers, acceptances of offers, order confirmations and the sale of any products by cpc are subject to these Terms and Conditions of Sale. Any errors in cpc’s brochures, price lists, offer documents or other documentation due to error may be corrected by us, without us being responsible for any damages resulting from these errors. All agreements between cpc and the ordering party for the purpose of executing this contract must be in writing. The Terms and Conditions of Sale shall only apply to persons who, at the time of conclusion of the contract, are acting in the exercise of their commercial or independent professional activity (companies) and legal persons under public law; they shall also apply in the currently valid version to all future transactions with the ordering party.
The offer of cpc is subject to change unless otherwise stated in the order confirmation. Declarations of acceptance must be confirmed by us in writing or by telex in order to be legally effective. cpc reserves the property rights and copyrights to illustrations, drawings, calculations and other documents. The documents may not be made accessible to third parties. This applies in particular to written documents designated by cpc as confidential. Before forwarding confidential offer documents to third parties, the ordering party must obtain our express written consent.
3. Prices and terms of payment
Unless otherwise stated in the order confirmation, cpc’s prices shall apply “ex works”. The prices of cpc apply excluding the freight and packaging costs to be charged separately. The prices in the current price lists published at the time of the order shall apply. cpc reserves the right to change the prices accordingly if cost reductions or cost increases occur after the conclusion of the contract, in particular due to collective wage agreements, material price increases, exchange rate fluctuations or changes in customs duties. cpc will prove these to the ordering party upon request. Statutory value added tax is not included in our prices. It shall be shown separately in the invoice at the statutory rate on the day of invoicing. Unless otherwise stated in the order confirmation, the purchase price shall be due for payment without deduction within 30 days of the invoice date. If the Purchaser is in default of payment, cpc is entitled to demand default interest in the amount of 10% p.a. above the respective base interest rate according to § 1 of the Discount Rate Transition Act. If cpc is able to prove a higher damage caused by default, cpc is entitled to assert this. For his part, the ordering party is entitled to prove to cpc that we have incurred no or significantly lower damages as a result of the delay in payment. Payments shall always be made by bank transfer; payments by bill of exchange or cheque shall not be recognised as fulfilment of the payment obligation. The buyer is only entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by cpc in writing. The ordering party has no right of retention due to disputed counterclaims.
4. Delivery time
The start of the delivery period stated by us presupposes the clarification of all technical questions. Compliance with our delivery obligation further presupposes the timely and proper fulfilment of the purchaser’s agreed obligations. cpc reserves the right to plead non-performance of the contract. If the ordering party is in default of acceptance or violates other obligations to cooperate, cpc is entitled to demand compensation for the resulting damages, including any additional expenses. cpc reserves the right to further claims. Insofar as the prerequisites of paragraph 3 of this provision exist, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the ordering party at the point in time at which the ordering party is in default of acceptance or debtor’s delay. cpc is liable according to the statutory provisions, insofar as the underlying purchase contract is a transaction for delivery by a fixed date within the meaning of § 376 HGB (German Commercial Code). cpc is also liable according to the legal regulations, insofar as the buyer is entitled to claim that his interest in the further fulfilment of the contract has lapsed as a result of a delay in delivery for which cpc is responsible. Furthermore, cpc shall be liable in accordance with the statutory provisions if the delay in delivery is based on an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to cpc. If the delay in delivery is not due to an intentional breach of contract for which cpc is responsible, our liability for damages is limited to the foreseeable, typically occurring damage. cpc shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which cpc is responsible is based on the culpable breach of a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage. If the delay in delivery is only due to a culpable breach of a non-essential contractual obligation, the ordering party is entitled to demand a lump-sum compensation for delay in the amount of 3% of the delivery value for each full week of delay, but not more than 15% of the delivery value.
5. Transfer of risk and packaging costs
Unless otherwise stated in the order confirmation, delivery is agreed “ex works”. Transport packaging and all other packaging in accordance with the packaging regulations will not be taken back by cpc, with the exception of pallets. The ordering party is obliged to dispose of the packaging at his own expense. If the ordering party so desires, cpc shall cover the delivery with transport insurance; the costs incurred in this regard shall be borne by the ordering party.
6. Warranty, liability
The customer is obliged to inspect the delivered goods for obvious defects that would be readily apparent to an average customer. Obvious defects also include considerable, easily visible damage to the goods. They also include cases in which a different item or an insufficient quantity has been delivered. Such obvious defects must be reported to cpc in writing within four weeks after delivery. Defects that only become apparent later must be reported to cpc within four weeks after they are recognised by the buyer. In the event of a breach of the duty to inspect and give notice of defects, the goods shall be deemed to have been approved in view of the defect in question. If there is a defect in the purchased goods for which cpc is responsible, the purchaser can choose to demand subsequent performance free of charge, i.e. rectification of the defect or subsequent delivery. cpc can refuse the type of supplementary performance chosen by the purchaser if the performance is impossible or requires unreasonable effort or is associated with disproportionately high costs. As long as cpc fulfils the obligation of subsequent performance, in particular to remedy defects or to deliver a defect-free item, and the subsequent performance has not failed, the ordering party has no right to demand a reduction in payment or to declare withdrawal from the contract. In the case of a replacement delivery, the purchaser is obligated to return the defective item to cpc. If cpc is unable to provide supplementary performance, in particular if this is delayed beyond a reasonable period of time for reasons for which cpc is responsible, or if the supplementary performance fails in any other way, the ordering party is entitled to choose between a reasonable reduction in the purchase price or withdrawal from the contract. cpc excludes any further liability for slightly negligent breaches of duty, insofar as these do not concern essential contractual duties, damages from injury to life, body or health or guarantees or claims under the Product Liability Act are affected. The same applies to breaches of duty by our vicarious agents. The amount of the obligation to pay compensation is limited to the typically foreseeable damage. All information has been carefully compiled by cpc. They correspond to the current status at the time of publication. However, deviations may occur due to technical changes that may be necessary. Liability for damages caused by incorrect technical information provided by the purchaser is expressly excluded. Deviations in quantities, contents, thicknesses, weights and colour shades due to production are permissible within the tolerances customary in the industry. We reserve the right to over- or under-deliver by 10%. Deliveries in type-conforming sales goods, whereby our specifications correspond to the average value. We reserve the right to deviations from the usual tolerance. In particular, if these deviations are due to raw materials from upstream suppliers. All technical data, explanations and instructions regarding the types of use issued and distributed by cpc must be observed by the purchaser. The warranty period is 12 months from the date of transfer of risk. This period is a limitation period and applies to all claims in which a right arises from the defectiveness of the item or service itself.
7. Retention of title
Regardless of the delivery and the transfer of risk, cpc retains ownership of the purchased item until all payments from the business relationship with the ordering party have been received. In the event of behaviour contrary to the contract on the part of the ordering party, in particular in the event of default of payment, cpc shall be entitled to take back the purchased item. The taking back of the purchased goods by cpc does not constitute a withdrawal from the contract, unless cpc has expressly declared this in writing. The seizure of the purchased item by cpc always constitutes a withdrawal from the contract. After taking back the object of sale, cpc is authorised to realise it; the realisation proceeds are to be credited against the purchaser’s liabilities – less reasonable realisation costs. The customer is obliged to treat the object of sale with care; in particular, he is obliged to insure it adequately at his own expense against fire, water and theft damage at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense. In the event of seizures or other interventions by third parties, the purchaser must inform cpc immediately in writing so that cpc can file a third-party action in accordance with § 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not in a position to reimburse cpc for the costs of an action pursuant to § 771 ZPO, the purchaser shall be liable for the loss incurred by cpc. The purchaser is entitled to resell the purchased goods in the ordinary course of business; however, he already assigns to cpc all claims in the amount of the final invoice amount (including VAT) of cpc’s claim, which accrue to him from the resale against his customers or third parties, regardless of whether the purchased goods were resold without or after agreement. The buyer remains authorised to collect this claim even after the assignment. The authority of cpc to collect the claim itself remains unaffected. However, cpc undertakes not to collect the claim as long as the buyer meets his payment obligations from the collected proceeds, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, cpc can demand that the buyer inform cpc of the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents and inform the debtors (third parties) of the assignment. Any processing or transformation of the object of sale by the purchaser shall be carried out for cpc. If the purchased item is processed with other items not belonging to cpc, cpc acquires co-ownership of the new item in proportion to the value of the purchased item to the other processed items at the time of processing. In all other respects, the same shall apply to the object created by processing as to the object of sale delivered under reservation. If the purchased item is inseparably mixed with other items not belonging to cpc, cpc shall acquire co-ownership of the new item in the ratio of the value of the purchased item to the other mixed items at the time of mixing. If the mixing takes place in such a way that the purchaser’s item is to be regarded as the main item, it shall be deemed agreed that the purchaser shall transfer co-ownership to cpc on a pro rata basis. The purchaser shall keep the sole ownership or co-ownership thus created for cpc. The purchaser also assigns to cpc the claims to secure our claims against him, which arise against a third party through the connection of the purchased item with a piece of real estate. cpc is obligated to release the securities at the request of the purchaser insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is incumbent upon cpc.
8. Place of jurisdiction, applicable law
If the Purchaser is a registered trader, the place of jurisdiction is the registered office of cpc; however, cpc is also entitled to sue the Purchaser at the court responsible for the registered office. All legal relationships and legal disputes between the contracting parties shall be governed exclusively by the laws of the Federal Republic of Germany.
Remscheid, March 2015
colorplasticchemie, Albert Schleberger GmbH