GENERAL TERMS AND CONDITIONS Gluetec Industrieklebstoffe GmbH & Co. KG
1. Field of application
1. The following terms of sale apply to all contracts concluded between the customer and the company Gluetec Industrieklebstoffe GmbH & Co. KG concerning the supply of goods. These conditions of sale shall furthermore apply to all future business relations, even if they are not expressly agreed upon once more in a renewed agreement. Deviating terms and conditions of the contractual partner of Gluetec Industrieklebstoffe GmbH & Co. KG exert no effect if they are not approved by Gluetec Industrieklebstoffe GmbH & Co. KG. The following sales conditions are effective , even if Gluetec Industrieklebstoffe GmbH & Co. KG is aware of conflicting or differing terms and conditions of the customer and a customer‘s order is executed withoutreservation.
2. The sales contracts, concluded between Gluetec Industrieklebstoffe GmbH & Co. KG and the customer on the occasion of the contract conclusion, include the basic agreements between the customer and Gluetec Industrieklebstoffe GmbH & Co. KG, additional contract conditions – not included in the sales contracts – are replaced by the present terms and conditions.
2. Minimum order value
The minimum order value per order for deliveries to Germany and other Countries is 150 € (net value of goods). Purchase orders with a lower order value can be executed. For these small orders, below the minimum order value, we charge a minimum quantity surcharge of 50 € plus VAT per order.
3. Offer and conclusion of contract
1. An order of the customer that qualifies as an offer for the conclusion of a sales contract can be regarded as accepted by Gluetec Industrieklebstoffe GmbH & Co. KG within two weeks by transmitting an order confirmation or by sending the ordered products within the same period of time. Gluetec Industrieklebstoffe GmbH & Co. is also entitled to a right of refusal without giving any reasons in respect to an offer to buy compiled for Gluetec Industrieklebstoffe GmbH & Co. KG. Gluetec Industrieklebstoffe GmbH & Co. is not required to explicitly reject an offer, however, cannot be held liable if an offer by the customer is not answered and no delivery or dispatch of the products is conducted.
2. The offers of Gluetec Industrieklebstoffe GmbH & Co. KG are subject to change and without obligation, unless the offers have expressly been declared as binding.
4. Conditions of payment
1. The prices of Gluetec Industrieklebstoffe GmbH & Co. KG are ex works inclusive of packaging unless nothing else has been agreed upon contractually. The value added tax is not included in these prices, the prices indicate the net cost. The value added tax is separately shown in the customer invoice in its statutory amount on the day of invoicing.
2. A deduction of discount is only valid in case of a specific written agreement between Gluetec Industrieklebstoffe GmbH & Co. KG and the customer. The purchase price is due for payment immediately without any deduction (net price) starting with receipt of the invoice by the purchaser, insofar as the order confirmation offers no different payment target or no different payment target has been agreed upon. A payment shall be deemed as completed when the value dated purchase price has been transferred to an account of Gluetec Industrieklebstoffe GmbH & Co. KG. In the case of payment by check, a payment shall only be deemed as completed if the check was actually cashed.
3. If the customer is in default of payment, the statutory provisions apply, and Gluetec Industrieklebstoffe GmbH & Co. KG shall charge interests for delay at the rate of 8 % (percentage points) above the respectively applicable base interest rate.
4. In case notifications of defects or counterclaims are made, the purchaser is only entitled to an offset if these counterclaims have been established as final and absolute or have been acknowledged by Gluetec Industrieklebstoffe GmbH & Co. KG
5. The customer shall only be entitled to set off against the purchase price (whether from notice of defects or other counterclaims) if these counterclaims have been legally established, or have been approved by Gluetec Industrieklebstoffe GmbH & Co. KG. Otherwise, the customer is not entitled to set off against the purchase price. The customer is not entitled to exercise a right of lien.
5. Period of delivery and time of performance
1. Delivery dates or periods of delivery that have not been expressly agreed upon as obligatory are solely information without obligation by Gluetec Industrieklebstoffe GmbH & Co. KG. The delivery date stated by Gluetec Industrieklebstoffe GmbH & Co. KG begins not until all technical questions have been clarified with the customer. Likewise, the customer has to fulfil all his obligations in an orderly and timely manner.
2. Gluetec Industrieklebstoffe GmbH & Co. KG is entitled to extend the agreed delivery deadlines unilaterally with a prior corresponding notice to the customer. A liability of Gluetec Industrieklebstoffe GmbH & Co. KG against the customer in the event of a delay in delivery is limited to 15 % of the (defaulting) delivery value.
3. Gluetec Industrieklebstoffe GmbH & Co. KG is entitled to partial deliveries and partial performances of each issued order, and the customer is obligated contrariwise to accept partial deliveries and partial performances at all times.
4. In the event of default of acceptance by the customer, Gluetec Industrieklebstoffe GmbH & Co. KG is entitled to claim compensation for resulting damages and possible additional expenses from the customer. The same is in effect if the purchaser culpably violates obligations to co-operate. In the event of default of acceptance or culpable delay, the danger of accidental deterioration and accidental sinking is transferred to the customer.
6. Passing of risk – Shipping/Packaging
1. Loading of goods and shipping take place uninsured at customer’s risk. Gluetec Industrieklebstoffe GmbH & Co. KG will conclude appropriate shipping insurances if the customer expressly requires this. The additional costs in this regard are at the expense of the customer and will be – separately listed – charged on the customer by Gluetec Industrieklebstoffe GmbH & Co. KG.
2. Transport packaging or other packaging (with the exception of euro-pallets) will not be taken back by Gluetec Industrieklebstoffe GmbH & Co. KG. The customer has to take care of the disposal of the packaging at his own expense.
3. In the event that the shipping is delayed by request or by fault of the customer, Gluetec Industrieklebstoffe GmbH & Co. KG will store the goods, ordered and ready for delivery, at the risk and expense of the purchaser. In this case, the announcement of readiness for delivery is equal to shipping and from that date Gluetec Industrieklebstoffe GmbH & Co. KG is entitled to invoice the ordered goods.
7. Warranty / Acceptance
1. For the rights of the customer in case of material and legal faults (including wrong and short delivery) the legal regulations are valid, unless otherwise stated below.
2. Basis of the liability for faults is above all the agreement made on the consistence of the goods. All product descriptions which are an object of the individual contract or have been made public by Gluetec Industrieklebstoffe GmbH & Co. KG (in particular in catalogues or on the Internet homepage) shall be deemed to be an agreement on the consistence of the goods.
3. As far as the consistence of the product has not been agreed upon, it is to be judged according to the legal regulation whether or not there is a fault (§ 434 (1) p. 2 and 3 BGB/Civil Code). For public statements of the manufacturer or other third parties (for example, advertising statements), which are not appropriated by Gluetec Industrieklebstoffe GmbH & Co. KG, liability is denied. Those are not part of the contract.
4. Fault claims of the customer presuppose that he has complied with his statutory examination and complaint obligations (§§ 377, 381 HGB). In particular, the customer is obliged to check the type, quantity and quality of the delivered contract products immediately after receipt of the goods. Obvious defects or faults must be reported in writing without delay, at the latest within a period of 3 calendar days. If a defect or lack appears later which has not been identified upon receipt of the goods (hidden defect or fault), the customer immediately has to notify Gluetec Industrieklebstoffe GmbH & Co. KG about the hidden defect in writing after having gained knowledge, also within 3 calendar days at the latest. The receipt of the fault claim at Gluetec Industrieklebstoffe GmbH & Co. KG is crucial in all cases. In case of late complaints or failure to examine / assess the goods supplied, the liability of Gluetec Industrieklebstoffe GmbH & Co. KG for the defect which is not notified or not notified promptly or improperly is excluded in accordance with the legal regulations. The customer is obliged to accept the performance of the contractor no later than two weeks after delivery in accordance with the legal requirements or when agreeing to a purchase. If an acceptance does not take place within the aforementioned period, the service is considered as accepted.
5. If the delivered goods are defective or faulty, Gluetec Industrieklebstoffe GmbH & Co. KG may first of all choose whether supplementary performance shall be provided by removal of the lack (rectification) or by delivery of a defect-free object (replacement delivery). The right to refuse supplementary performance under the legal regulations remains unaffected.
6. Gluetec Industrieklebstoffe GmbH & Co. KG is entitled to make the subsequent performance owed dependent on the customer paying the due purchase price. However, the customer is entitled to retain a part of the purchase price that is appropriate in relation to the defect or lack.
8. The customer must give Gluetec Industrieklebstoffe GmbH & Co. KG the time and opportunity necessary for the subsequent performance owing, in particular to hand over the complained and rejected goods from the delivered product batch for examination purposes and, if necessary, laboratory tests. In the case of replacement delivery, the customer must return the defective or faulty item in accordance to the legal regulations.
9. The expenses required for the purpose of testing and supplementary performance, in particular transportation-, carriage-, labour- and material-costs (not: removal and installation costs) shall be borne by Gluetec Industrieklebstoffe GmbH & Co. KG if there is actually a defect or lack. Excluded from this are increased costs resulting from the fact that the contractual object is located at a place other than the place of performance. If there is no defect or lack Gluetec Industrieklebstoffe GmbH & Co. KG may demand compensation from the customer for the costs incurred in connection with the unjustified removal of the defect (in particular inspection and transport costs), unless the lack of defectiveness or missing faultiness was not recognizable to the customer.
10. In urgent cases, e.g. in the event of danger to operational safety or to prevent disproportionate damage, the customer has the right to remove the lack himself and to demand compensation for the objectively necessary expenses. Gluetec Industrieklebstoffe GmbH & Co. KG is to be notified of such self-performance without delay, if possible prior to this action. The right of self-remedy of defects of faults does not exist if Gluetec Industrieklebstoffe GmbH & Co. KG would be entitled to refuse a suitable subsequent performance in accordance with the legal regulations.
11. If the supplementary performance has failed or a reasonable deadline to be set for the subsequent performance of the customer has expired unsuccessfully or is dispensable in accordance with legal regulations, the customer may withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal with a minor defect or fault.
12. Claims of the customer for indemnity or replacements for vain expenditures do even exist in the case of defects or lack only in accordance with para. 8 and are excluded incidentally.
1. Claims of the customer for compensation are impossible. Exceptions to this are claims for damages arising from injury to life, body, health or significant breach of serious violation of obligations (cardinal obligations) as well as liability for other damages resulting from deliberate or grossly negligent breach of the duty of Gluetec Industrieklebstoffe GmbH & Co. KG, their legal representatives or servants. Significant contractual obligations are those whose fulfillment makes the proper execution of the contract possible in the first place and on the compliance of which the contractual partner regularly relies and can rely.
2. In the event of a breach of essential contractual obligations, Gluetec Industrieklebstoffe GmbH & Co. KG shall only be liable for the contract coherent, foreseeable damage, if this was simply caused by negligence, unless it concerns compensation claims for damages of the customer resulting from injury to life, body or health.
3. The restrictions of paragraphs 1 and 2 shall also apply in favour of the legal representatives and servants of Gluetec Industrieklebstoffe GmbH & Co. KG, if claims are asserted directly against them.
4. The liability limitations resulting from paragraphs 1 to 3 do not apply insofar as Gluetec Industrieklebstoffe GmbH & Co. KG has fraudulently concealed a defect or lack or has assumed a guarantee for the quality of the goods and for claims of the customer under the Product Liability Act.
5. Due to a breach of duty that does not consist in a defect of fault, the customer can only resign or terminate if Gluetec Industrieklebstoffe GmbH & Co. KG is responsible for the breach of duty. Any free right of termination of the customer (in particular according to §§ 651, 649 BGB/Civil Code) is impossible. By the way, the legal requirements and legal consequences are valid.
9. Statute of limitations
1. The general period of limitation for claims based on material faults and defects of title is one year from delivery. As far as acceptance has been agreed, the period of limitation begins with the acceptance.
2. If, however, the goods are a construction or a thing that has been used in accordance with their normal use for construction and has caused its faultiness (building material), the limitation period is 5 years from the date of delivery (§ 438 Para. 1 no. 2 BGB). Further legal special regulations regarding the statute of limitations remain unaffected (in particular, § 438 para. 1 no. 1, para. 3, §§ 444, 479 BGB/Civil Code).
3. The above limitation periods also apply to contractual and non-contractual claims for damages of the customer, which are based on a defect or lack of the goods, unless the application of the regular legal limitation period (§§ 195, 199 BGB/Civil Code) would lead to a shorter limitation period in individual cases. However, claims for damages of the customer acc. § 8 (1) and (2) as well as according to the Product Liability Act fall under the statute of legal limitation periods solely.
10. Retention of title
1. Until the fulfillment of all receivables, including all balance claims from current accounts that Gluetec Industrieklebstoffe GmbH & Co. KG incurs to the customer now or in the future, the delivered goods remain the property of Gluetec Industrieklebstoffe GmbH & Co. KG.
2. The goods subject to retention of title shall not be pledged to third parties or transferred as collateral prior to full payment of the secured receivables. The customer must immediately notify Gluetec Industrieklebstoffe GmbH & Co. KG in writing if an application for the opening of insolvency proceedings has been filed or if third party access (for example distress) to the goods belonging to Gluetec Industrieklebstoffe GmbH & Co. KG takes place. The related expenses and costs are borne by the customer.
3. In case of breach of contract by the customer, in particular in the case of non-payment of the due purchase price, Gluetec Industrieklebstoffe GmbH & Co. KG is entitled to withdraw from the contract in accordance with the legal regulations and/or to demand the goods on the basis of the retention of title. The request for action for restitution does not at the same time include the explanation of the resignation; rather, Gluetec Industrieklebstoffe GmbH & Co. KG is entitled to demand only the goods and to reserve the right of withdrawal. If the customer does not pay the due purchase price, Gluetec Industrieklebstoffe GmbH & Co. KG may only assert these rights if the customer has previously been unsuccessful in setting a reasonable period for payment or if such a deadline is dispensable in accordance with the legal regulations.
4. Until further notice, the customer is entitled in accordance with (c) below to resell and / or process the goods subject to retention of title in the ordinary course of business. In this case, the following regulations apply additionally.
(a) The retention of title extends to the full value of the products resulting from the processing, mixing or composition of the goods, Gluetec Industrieklebstoffe GmbH & Co. KG being the manufacturer. If the ownership rights remain with processing, mixing or combination with third-party goods, Gluetec Industrieklebstoffe GmbH & Co. KG shall acquire co-ownership proportionately to the invoice value of the processed, mixed or composited goods. Additionally, the same applies to the resulting product as to the goods delivered under retention of title.
(b) Arising receivables resulting from the resale of the goods or the product to Gluetec Industrieklebstoffe GmbH & Co. KG against third parties are hereby assigned by the customer as a whole or in the amount of the possible co-ownership share according to the preceding paragraph. Gluetec Industrieklebstoffe GmbH & Co. KG accepts the assignment. The duties of the customer mentioned in paragraph 2 also apply with regard to the assigned claims and receivables.
(c) Beside us, the customer is authorized to collect the claims or receivables. Gluetec Industrieklebstoffe GmbH & Co. KG commits itself not to collect the claims and receivables as long as the customer meets his payment obligations, there is no defect or lack of his efficiency and Gluetec Industrieklebstoffe GmbH & Co. KG does not enforce the retention of title by exercising a right according to paragraph 3. However, if this is the case, Gluetec Industrieklebstoffe GmbH & Co. KG may require the customer to disclose the assigned claims and their debtors, to provide all information necessary for collection, to hand over the relevant documents and to notify the debtors (third parties) of the assignment , Furthermore in this case Gluetec Industrieklebstoffe GmbH & Co. KG is entitled to withdraw the customer’s authorisation to sell and process the goods subject to retention of title.
(d) If the realizable value of the collaterals exceeds the claims of Gluetec Industrieklebstoffe GmbH & Co. KG by more than 10%, Gluetec Industrieklebstoffe GmbH & Co. KG will, upon request of the customer, release collaterals at the own option of Gluetec Industrieklebstoffe GmbH & Co. KG ,
5. The customer must treat the goods subject to retention of title with care and insure them adequately at their own expense against fire, water and theft damage at replacement value. Maintenance and inspection work that is required must be carried out by the customer at his own expense in a timely and appropriate manner.
11. Use of data
1. Gluetec Industrieklebstoffe GmbH & Co. KG records personal, business, customer and customer data according to the specifications written in the German Data Protection Act (BDSG), so-called data collection. The customer explicitly agrees with the data collection and explicitly declares consent with data processing as per §§ 4, 4a BDSG. Gluetec Industrieklebstoffe GmbH & Co. KG records and processes these data exclusively for the needful handling and processing due to customer relationship, its administration and exclusively own advertising and information purposes. The data will not be circulated beyond legal requirements or obligations to a third party at any time.
2. The customer or customer explicitly complies with Gluetec Industrieklebstoffe GmbH & Co. KG contacting him for informing him about products, procedures, techniques or similar by several communication channels for example in form of newsletters (advertising) – therefor the collected data is used. The customer or customer has he possibility to disagree written or by E-mail to info∂gluetec.de anytime.
12. Place of fulfilment/Place of venue/Applicable law
a. The place of jurisdiction for each contract concluded with Gluetec Industrieklebstoffe GmbH & Co. KG is Würzburg.
b. The exclusively applicable law agreed upon between customer and Gluetec Industrieklebstoffe GmbH & Co. KG is the German law (with the exception of the UN purchasing law whose application is excluded).
c. Place of fulfilment: All payments (as well as check payments / cash payments / bank transfers) must be made to the disclosed accounts of Gluetec Industrieklebstoffe GmbH & Co. KG or, in case of cash payment, must take place directly at the place of business of Gluetec Industrieklebstoffe GmbH & Co. KG.
As of: February 2019