§1 Validity of the conditions
The GTC apply to Desoi GmbH and Desoi Construction Chemicals GmbH, hereinafter referred to as „Desoi“. Desoi‘s deliveries, services and offers are made exclusively on the basis of these terms and conditions, which are an integral part of all contracts that Desoi concludes with its contractual partners for the deliveries or services it offers. They also apply to all future deliveries, services or offers to the customer, even if they are not agreed separately again. Terms and conditions of the purchaser or third parties shall not apply, even if Desoi does not separately object to their validity in individual cases. Counter-confirmations of the purchaser with reference to his business and/or purchasing conditions are hereby rejected, even if Desoi refers to a letter containing or referring to the business conditions of the purchaser or a third party.
§2 Offers and conclusion of contract
1. Offers contained in brochures, advertisements, etc. are non-binding and subject to change without notice also with regard to price information. Desoi is bound to specially prepared offers for 30 calendar days from the date of the offer. Desoi can accept subscriptions or orders within fourteen days after receipt.
2. Subsidiary agreements, amendments, supplements and/or other deviations from these terms and conditions are only valid if Desoi has declared its agreement to this extent. Such agreements must be made in writing.
3. Information in offers and/or order confirmations of Desoi, which are based on an obvious error, namely a typing or calculation error, Desoi does not commit. Rather, the obviously intended statement applies.
4. Desoi‘s information on the object of the delivery or service (e.g. weights, dimensions, values in use, load capacity, tolerances and technical data) and the illustrations thereof (e.g. drawings and illustrations) are only approximately material unless their use for the contractually agreed purpose presupposes exact conformity. They are not guaranteed characteristics, but descriptions or markings of the delivery or service. Deviations customary in trade and deviations, which are due to legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts are permissible, provided that they do not impair the usability for the contractually intended purpose.
5. Desoi reserves proprietary rights or copyright to all offers and cost estimates submitted by Desoi as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and expedients made available to the purchaser. The offer documents, drawings, descriptions, samples and cost estimates of Desoi may not be passed on, published, duplicated or otherwise made accessible to third parties without its approval. Upon request, the documents are to be returned without retention of copies. Any copies made shall be destroyed if they are no longer required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
§3 Prices, price changes
1. Prices do not include the statutory value added tax, which is shown separately. All prices are billed in euros. All invoices must be paid in euros.
2. The prices do not include the costs of packaging and freight or customs duties, fees and other public charges.
3. If there are more than four months between the conclusion of the contract and the agreed and/ or actual delivery date, the prices of Desoi valid at the time of delivery or provision shall apply; if the latter prices exceed the prices initially agreed by more than 15%, the purchaser shall be entitled to withdraw from the contract. For small orders under 25,- Euro a handling fee of 10,- Euro will be charged.
1. The delivery is ex works.
§4 Delivery and delivery time
2. Delivery dates or delivery periods that can be agreed as binding or non-binding must be in writing. Binding force is only given if Desoi has made an express declaration to this effect. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or any other third party commissioned with the transport.
3. Notwithstanding its rights arising from default on the part of the purchaser, Desoi can demand from the purchaser an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period during which the purchaser does not fulfil his contractual obligations towards Desoi.
4. Desoi shall not be liable for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, legal lock-outs, lack of manpower, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the lack of, incorrect or delayed delivery by suppliers) for which Desoi is not responsible. If such events make the delivery or service considerably more difficult or impossible for Desoi and the hindrance is not only of a temporary duration, Desoi is entitled to withdraw from the contract. In the event of obstacles of temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates postponed by the period of the hindrance plus an appropriate preparatory period. If the purchaser cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to Desoi.
5. Desoi is only entitled to make partial deliveries if
- the partial delivery is usable for the customer within the scope of the contractual purpose,
- the delivery of the remaining ordered goods is ensured and
- the purchaser does not incur any considerable additional expenditure or costs, unless Desoi declares its willingness to assume these costs.
6. If Desoi is in default with a delivery or service or if a delivery or service, for whatever reason, becomes impossible for Desoi, the liability of Desoi is limited to damages in accordance with § 8 of these General Terms and Conditions.
§5 Place of Performance, Shipment and Risk Bearing
1. 36148 Kalbach is the place of performance for all obligations arising from the contractual relationship, unless otherwise agreed. If Desoi is also responsible for the installation, the place of performance is the place where the installation has to take place.
2. The mode of dispatch and the packaging are subject to the dutiful discretion of Desoi.
3. The risk shall pass to the purchaser as soon as the consignment has been handed over to the person carrying out the transport or has left Desoi‘s works for dispatch. If dispatch is delayed or not carried out at the request of the customer, the risk shall pass to him upon notification that the goods are ready for dispatch.
4. At the request of the customer, deliveries shall be insured in his name and for his account.
5. Storage costs after passing of risk shall be borne by the customer. In case of storage by Desoi the storage costs amount to 0.25% of the invoice amount of the delivery items to be stored per elapsed week. We reserve the right to assert and prove further or lower storage costs.
§6 Refusal to accept goods and returns of goods
In the event of non-acceptance of the goods by the purchaser, Desoi is entitled to a lump-sum compensation claim of 30% of the purchase price without Desoi having to prove any special damage, unless the purchaser proves that Desoi incurred lower damage. Desoi is allowed to prove a higher damage.
Goods may only be returned with the prior consent of Desoi. In the event of inadmissible returns, the costs incurred will be charged to the customer. Goods which are not defective will not be taken back or only in exceptional cases without acknowledgement of a legal obligation and as a gesture of goodwill if the goods are in perfect original condition. In the event of such a return as a gesture of goodwill, a discount of 10% of the value of the goods, but at least 20 euros, will be charged. Freight collect returns will not be accepted. The return is at the purchaser‘s risk.
1. The warranty period is one year from delivery or, if acceptance is required, from acceptance.
2. The delivered goods must be carefully inspected immediately after delivery to the customer or to the third party designated by him. They shall be deemed to have been approved if Desoi has not received a written notification of defects with regard to obvious defects or other defects which were identifiable during an immediate and careful examination within seven working days after delivery of the delivery item, or otherwise within seven working days after discovery of the defect or the point of time at which the defect was identifiable to the purchaser during normal use of the delivery item without further examination. Transmission by fax is sufficient to ensure the written form, otherwise transmission by telecommunication, in particular by e-mail, is not sufficient. At Desoi‘s request, the rejected delivery item shall be returned to Desoi carriage paid. In the event of justified notification of defects Desoi shall reimburse the costs of the cheapest dispatch route; this shall not apply if the costs increase because the delivery item is at a location other than the location of the intended use.
3. In the case of material defects of the delivered goods, Desoi is initially obliged and entitled to choose between rectification of defects or replacement delivery within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of rectification or replacement, the customer may withdraw from the contract or reduce the purchase price accordingly.
4. If a defect is due to Desoi‘s default, the purchaser may claim damages under the conditions specified in § 8.
5. In case of defects of components of other manufacturers, which Desoi is not able to eliminate for licensing or actual reasons, Desoi will assert its warranty claims against the manufacturers and suppliers for the account of the purchaser or assign them to the purchaser at its discretion. Warranty claims against Desoi exist under the other conditions and in accordance with these General Terms and Conditions only if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or, for example, due to insolvency, is futile. During the duration of the legal dispute, the limitation period for the relevant warranty claims of the purchaser against Desoi is suspended.
6. The warranty shall lapse if the purchaser modifies the delivery item or has it modified by third parties without the consent of Desoi and the rectification of defects becomes impossible or unreasonably difficult as a result. In any case, the customer shall bear the additional costs of the remedy of defects resulting from the change.
7. If the purchaser is an entrepreneur and he or another purchaser in the supply chain as an entrepreneur has satisfied claims of the consumer due to defects in newly manufactured goods delivered by Desoi, which were also delivered as newly manufactured goods to a consumer, the statute of limitation of claims of the purchaser against Desoi from §§ 437, 478 para. 2 BGB (German Civil Code) occurs at the earliest two months after the time at which the purchaser or the other buyer in the supply chain as entrepreneur has fulfilled the claims of the consumer, unless the customer could have invoked the plea of the statute of limitations against his customer. The statute of limitations of the claims of the purchaser against Desoi for defective goods delivered by Desoi shall apply in any case if the claims of the customer of the purchaser against the purchaser for defects in the goods delivered by Desoi to the purchaser have lapsed, but no later than five years after the date on which Desoi delivered the respective goods to the purchaser.
8. A delivery of used items agreed with the customer in individual cases shall be made to the exclusion of any warranty.
§8 Limitation of liability
1. Any liability of Desoi is excluded. This does not apply to claims for damages by the customer arising from guaranteed characteristics of state, violation of life, body, health or of essential contractual obligations as well as liability for other damages which are based on an intentional or grossly negligent breach of duty by Desoi, its institutions, legal representatives, employees or other vicarious agents. Essential contractual obligations are those whose fulfilment is essential for the proper execution of the contract and whose fulfilment is necessary to achieve the objective of the contract and on whose compliance the contractual partner may regularly rely.
2. In the event of a breach of essential contractual obligations, Desoi is only liable for the foreseeable damage typical for the contract if this was caused by ordinary negligence, unless the customer‘s claims for damages are based on violation of life, body or health.
3. The restrictions of paragraphs 1 and 2 also apply in favour of the legal representatives and vicarious agents of the provider, if claims are asserted directly against them.
4. The provisions of the German Product Liability Act (Produkthaftungsgesetz) remain unaffected.
§9 Industrial property rights
1. Desoi warrants in accordance with this § 9 that the delivery item is free of industrial property rights or copyrights of third parties. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it for the infringement of such rights.
2. In the event that the delivery item infringes an industrial property right or copyright of a third party, Desoi will, at its discretion and expense, modify or exchange the delivery item in such a way that no more rights of third parties are infringed, but the delivery item continues to fulfil the contractually agreed functions, or procures the right of use for the purchaser by concluding a licence agreement. If it fails to do so within a reasonable period of time, the customer is entitled to withdraw from the contract or to reduce the purchase price to an appropriate extent. Any claims for damages by the customer are subject to the restrictions of § 8 of these General Terms and Conditions of Delivery.
3. In case of infringements by products of other manufacturers supplied by Desoi, Desoi will assert its claims against the manufacturers and sub-suppliers for the account of the purchaser or assign them to the purchaser at its discretion. In these cases, claims against Desoi in accordance with this § 9 shall only exist if the judicial enforcement of the aforementioned claims against the manufacturers and sub-suppliers has been unsuccessful or, for example, due to insolvency, is futile.
§10 Retention of title
1. Desoi retains title to the delivered goods (reserved goods) until all current and future claims to which Desoi is entitled against the purchaser from the business relationship have been settled. The purchaser shall store the reserved goods free of charge for Desoi and shall treat them with care. The purchaser shall insure the reserved goods against loss and damage; he hereby assigns his claims arising from such an insurance relationship to Desoi, which hereby accepts the declaration of assignment.
2. The purchaser is obliged to notify Desoi immediately in writing of any seizure of the reserved goods and to inform the pledgee of the retention of title. The customer is not entitled to sell, donate, pledge or assign as security the items delivered to him under retention of title - except in the cases described in the following paragraphs.
3. If the goods are delivered for a business operation maintained by the customer, the goods may be resold within the framework of proper business management. In this case, the claims of the purchaser against the customer from the sale are already now assigned to Desoi. In the event of resale of the goods on credit, the customer must reserve ownership vis-à-vis his customer. The purchaser hereby assigns the rights and claims arising from this retention of title towards his customer to Desoi, which hereby accepts this declaration of assignment.
4. Any treatment and processing of the reserved goods by the purchaser is carried out free of charge for Desoi. In the event of processing, combination, mixing or commixture of the reserved goods with other goods not belonging to Desoi, Desoi shall be entitled to the resulting co-ownership share in the new item in the ratio of the factor value of the reserved goods to the other processed goods at the time of processing, combination, mixing or commixture. If the purchaser acquires sole ownership of a new item, the contracting parties agree that the purchaser grants Desoi co-ownership of the new item in proportion to the factor value of the processed or combined, mixed or blended reserved items and stores them free of charge for the supplier.
5. If the reserved goods are installed by the purchaser or on his behalf as essential components in the property of a third party, the purchaser hereby assigns to Desoi, which hereby accepts this declaration of assignment, any claims arising against the third party or the party concerned for remuneration with all ancillary rights, including the granting of a security mortgage.
6. If the reserved goods are built into the purchaser‘s property as essential components, the purchaser hereby assigns to Desoi all claims arising from the sale of the property or property rights, including all ancillary rights, which Desoi hereby accepts this declaration of assignment.
7. If the value of the securities existing for Desoi according to the above provisions exceeds the value of Desoi‘s claims - not only temporarily - by more than 50 % in total, Desoi is obliged to release securities of its choice at the request of the purchaser.
8. If the purchaser does not fulfil his obligations towards Desoi or not on time and/or if he acts in an unacceptable manner on the goods delivered under retention of title, Desoi can demand the return of the goods without prejudice to its right to claim performance of the contract if a reasonable deadline set to the purchaser to fulfil its obligations has expired unsuccessfully. Desoi‘s demand to return the delivery item does not constitute a declaration of withdrawal unless this is expressly declared. Upon Desoi‘s request, the purchaser shall, under the conditions set out in sentence 1, provide Desoi with individual proof of his claims assigned to Desoi, stating all necessary individualisation features, in particular the name and address of the debtor, the amount of the claim and the existence of securities; he shall hand over the corresponding documents to Desoi free of charge. Furthermore, the purchaser informs his debtors about the assignment of the claims and asks them to pay only to Desoi. If the requirements of the sentence 1 are met Desoi is entitled to notify the debtors of the purchaser and to collect the claims. This right also exists in the event of an application for the opening of insolvency proceedings against the customer‘s assets.
1. Unless otherwise agreed, Desoi‘s invoices are due and payable immediately after invoicing without deduction. All invoice amounts are to be paid in Euro. If the customer does not pay at the due date, the outstanding amounts shall bear interest at 5% per annum from the due date; the assertion of higher interest and further damages in the event of default shall remain unaffected.
2. Desoi expressly reserves the right to refuse cheques or bills of exchange. Acceptance shall always be on account of performance only. Discount and bill of exchange charges shall be borne by the customer and are due immediately.
3. If circumstances become known by Desoi which call into question the creditworthiness of the purchaser, in particular if the purchaser does not cash a cheque or suspends his payments, Desoi is entitled to make the entire residual debt due, even if it has accepted cheques. In this case Desoi is also entitled to demand advance payments or the provision of security.
4. If the purchaser finally ceases payments and/or insolvency proceedings are applied for over his assets or judicial or extrajudicial composition proceedings, Desoi is also entitled to withdraw from the part of the contract not yet fulfilled.
5. Despite provisions to the contrary of the purchaser, Desoi is entitled to initially offset payments against the purchaser‘s older debts. Desoi will inform the purchaser about this type of settlement. If costs and interest have already been incurred, Desoi is entitled to offset the payment first against the costs, then against the interest and finally against the main service. Offsetting against counterclaims of the customer or the retention of payments due to such claims is only permissible if the counterclaims are undisputed or legally established as final and absolute.
6. If the purchaser defaults on payment, Desoi is entitled to demand interest on arrears of 8 percentage points above the base interest rate (§ 247 BGB (German Civil Code)) from the relevant point in time. Desoi is allowed to prove that a higher damage has occurred.
7. Invoices will be sent by e-mail. The purchaser will deposit a valid e-mail address with Desoi for this purpose.
§12 Prohibition of assignment
Without the express written consent of Desoi, the purchaser may not transfer or pledge his rights and claims against Desoi from the contractual relationship or from its implementation to third parties; § 354a HGB (German Commercial Code) is not affected by this.
§13 Applicable law, place of jurisdiction, partial nullity
1. The law of the Federal Republic of Germany shall apply to these terms and conditions and the entire legal relationship between Desoi and the purchaser without the norms of international private law and excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
2. If the purchaser is a registered trader within the meaning of the German Commercial Code (HGB), a corporate body under public law or separate assets under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the place of business of Desoi. The same applies in the event that the customer does not have a general place of jurisdiction in the territory of the Federal Republic of Germany. In the event that the purchaser moves his place of residence or habitual abode from the territory of the Federal Republic of Germany after conclusion of the contract or his place of residence or habitual abode is not known at the time the action is filed, the exclusive place of jurisdiction is also the place of business of Desoi. Mandatory legal provisions concerning exclusive places of jurisdiction shall remain unaffected by this provision.
3. Should any provision of these terms and conditions be or become invalid, the validity of all other provisions and agreements between Desoi and the purchaser shall not be affected.
4. Language of the contract and negotiation is exclusively German.