Section 1: Scope
- All deliveries, services, and quotations provided by Oskar Pahlke GmbH (hereinafter referred to as the “Seller”) shall be made exclusively on the basis of these General Terms of Delivery. These terms form an integral part of all Agreements that the Seller concludes with its contractual partners (hereinafter referred to as the “Buyer”) for the deliveries or services offered by the former. They shall also apply to all future deliveries, services, or quotations provided to the Buyer, insofar as these are legal transactions of a related nature, even if the terms are not agreed again separately.
- Terms and conditions of the Buyer or third parties shall not apply, even if the Seller does not expressly object to their validity in individual cases.
Section 2: Quotation and conclusion of Agreement
- All quotations provided by the Seller are subject to change and non-binding, unless they are expressly described as binding or indicate a specific acceptance period.
- The legal relationship between the Seller and the Buyer shall be solely governed by the written order confirmation including these General Terms and Conditions. Amendments and modifications to the Agreements concluded, including these Terms and Conditions, must be provided in written form to be valid.
- Particulars provided by the Seller regarding the goods or service to be supplied (e.g. weights, dimensions, use values, load-bearing capacity, tolerances, and technical data) and representations of the same (e.g. drawings and illustrations) are only approximations, unless usability for the contractually intended purpose presupposes exact conformity. They are not guaranteed characteristics, but rather descriptions or characterisations of the goods or service to be supplied.
Deviations that are customary in the trade, deviations that occur due to legal regulations or represent technical improvements, and the substitution of materials with equivalent materials are permissible insofar as they do not impair usability for the contractually intended purpose.
Liability for the specific weights cannot be accepted. Cutting tolerances conform to DIN 7715, part 5, class P3.
Section 3: Prices and payment
- The prices apply to the scope of service and supply specified in the order confirmations. Additional or special services will be charged separately. The prices are given in EURO plus statutory VAT as well as customs duties, fees, and other public charges and levies in the case of exports.
The minimum order value is €150.00 (net value). For orders under €300.00 net value, postage and packaging is not included (FCA—Incoterms 2020). For orders with a net value above €300.00, delivery is free of charge within Germany (DAP—Incoterms 2020).
- Invoices must be paid in full within 10 days, unless otherwise agreed in writing. If payment is made within 10 days of receipt of the invoice, the Seller shall give the Buyer a discount of 2% on the net invoice total. The Buyer shall be deemed to be in default no later than 30 days after receipt of the respective invoice. The date of payment shall be the date of receipt by the Seller. If the Buyer fails to pay by the due date, the outstanding amounts shall accrue interest from the due date at the statutory default interest rate; the Seller’s right to claim higher rates of interest and further compensation in the event of default shall remain unaffected.
- Counterclaims of the Buyer may only be set off, or payments due to such claims may only be withheld, if the counterclaims are undisputed or have been legally established.
- The Seller shall be entitled to perform or supply outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the Agreement, it becomes aware of circumstances that are likely to substantially reduce the Buyer’s creditworthiness and jeopardise settlement by the Buyer of the Seller’s outstanding claims under the respective Agreement (including under other individual orders to which the same Framework Agreement applies).
Section 4: Delivery and delivery time
- Deliveries shall be made either FCA St. Katharinen, Germany, (Incoterms 2020) or DAP (Incoterms 2020), depending on the net value of the goods.
- The Seller may—without prejudice to its rights arising from default by the Buyer—demand from the Buyer an extension of delivery and performance periods or a postponement of delivery and performance dates by the same length of time as the Buyer fails to fulfil its contractual obligations towards the Seller. The agreed delivery time shall be calculated commencing from the date on which all details of the order are clarified.
- The Seller shall not be liable for the impossibility of performing the delivery or for delays in delivery, insofar as these are caused by force majeure or other events that were not foreseeable at the time the Agreement was concluded (e.g. operational disruptions of any kind; difficulties in procuring materials or energy; transport delays; strikes; lawful lockouts; shortages of labour, energy, or raw materials; difficulties in obtaining necessary official authorisations; official measures; or non-delivery, incorrect delivery, or late delivery by suppliers) for which the Seller is not responsible. If such events make it significantly more difficult or impossible for the Seller to perform the delivery or service and the hindrance is not only of temporary duration, the Seller shall be entitled to withdraw from the Agreement. In the event of hindrances of temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by a length of time equal to the hindrance plus a reasonable start-up period. Insofar as the Buyer cannot be reasonably expected to accept the delivery or service as a result of the delay, it may withdraw from the Agreement by immediately notifying the Seller in writing.
- If the Seller is behind schedule with regard to a delivery or service, or if performing a delivery or service becomes impossible for whatever reason, the Seller’s liability for compensation shall be limited in accordance with Section 8 of these General Terms of Delivery.
Section 5: Place of performance, shipping, packaging, transfer of risk, acceptance
- The place of performance for all obligations arising from the Agreement shall be the location of the Seller’s registered office, unless otherwise specified.
- The shipping method and packaging shall be at the Seller’s discretion.
- The risk shall transfer to the Ordering Party no later than at the handover of the delivery item (the start of the loading process being the decisive moment) to the forwarding agent, carrier, or other third party appointed to make the shipment. The same shall also apply if partial deliveries are made or if the Seller has undertaken to perform additional services (e.g. shipping or installation).
Section 6: Warranty
- The warranty period is one year from delivery if the transaction is a commercial transaction for both parties. Otherwise, the statutory warranty period shall apply.
- The delivered goods must be examined carefully and without undue delay after delivery to the Buyer or to the third party specified by the Buyer. The goods shall be deemed to have been approved if the Seller has not received a notice of defects in respect of obvious defects or other defects that were apparent on prompt, careful inspection within 7 working days of delivery of the delivery item, or otherwise within 7 working days of discovery of the defect or of the time at which the defect became apparent to the Buyer on normal use of the delivery item without closer inspection. At the Seller’s request, the delivery item that is the subject of the complaint must be returned to the Seller. In the event of a justified complaint, the Seller shall reimburse the costs of the most economical means of shipment; this shall not apply in the event that the costs increase because the delivery item is located at a place other than the place of intended use.
- In the event of material defects in the delivered goods, the Seller shall first be obliged and entitled to rectify the defect or deliver a replacement at its discretion within a reasonable period of time. In the event of failure, i.e. the impossibility, unreasonableness, refusal, or unreasonable delay to the rectification or delivery of a replacement, the Buyer may withdraw from the Agreement or reduce the purchase price by an appropriate amount.
- If a defect is the fault of the Seller, the Buyer may claim compensation under the conditions set out in Section 8.
Section 7: Intellectual property rights
- In the case of items produced to customer specifications, the Buyer warrants in accordance with this Section 7 that the delivery item is free from industrial property rights or copyrights belonging to third parties. Each contractual partner shall notify the other contractual partner in writing without undue delay if claims are asserted against it for the infringement of such rights.
- In the event that the delivery item produced to customer specifications infringes an industrial property right or a copyright belonging to a third party, the Buyer shall, at its discretion and expense, modify or replace the delivery item such that no third-party rights are infringed any longer, or provide the Seller with the right of use by concluding a licence agreement. If the Buyer fails to take this action within a reasonable period of time, the Seller shall be entitled to withdraw from the Agreement or adjust the purchase price accordingly. Any claims for compensation on the part of the Seller shall be subject to the limitations of Section 8 of these General Terms of Delivery.
Section 8: Liability for compensation for fault
- The Seller’s liability for compensation, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties in contract negotiations, and tort, shall be limited in accordance with the provisions of this Section 8, insofar as fault is established in the respective case.
- The Seller shall not be liable
a) in the event of simple negligence on the part of its executive bodies, legal representatives, employees, or other vicarious agents;
b) in the event of gross negligence on the part of its employees or other vicarious agents, insofar as this does not constitute a breach of material contractual obligations.
- Insofar as the Seller is liable on the merits for compensation in accordance with Section 8(2), this liability shall be limited to loss or damage that the Seller foresaw at the time of the conclusion of the Agreement as a possible consequence of a breach of contract or, taking into account the circumstances that were known to it or of which it should have been aware, should have foreseen with the exercise of reasonable care. Indirect and consequential loss or damage resulting from defects in the delivery item is only eligible for compensation insofar as such loss or damage is to be typically expected when the delivery item is used as intended.
- In the event of liability for simple negligence, the Seller’s obligation to compensate for damage to property or personal injury is limited to an amount of EUR 1,000,000.00 per claim, even in the case of a breach of material contractual obligations.
- The above exclusions and limitations of liability apply to the same extent for the benefit of the executive bodies, legal representatives, employees, and other vicarious agents of the Seller.
- The restrictions of this Section 8 shall not apply to the Seller’s liability for wilful misconduct; for guaranteed characteristics; for injury to life, limb, or health; or under the German Product Liability Act (Produkthaftungsgesetz).
Section 9: Retention of title
- The retention of title agreed below serves to secure all current and future claims of the Seller against the Buyer arising from the delivery relationship existing between the contractual partners (including claims for payment of balances arising from a current account relationship limited to this delivery relationship).
- The goods delivered by the Seller to the Buyer shall remain the property of the Seller until all secured claims have been paid in full. The goods, as well as the goods covered by the retention of title that take their place in accordance with this clause, are hereinafter referred to as retained goods.
- The Buyer shall store the retained goods at no charge to the Seller.
- The Buyer is entitled to process and sell the retained goods in the ordinary course of business until such time as default enforcement is instigated (paragraph 9). Pledging or transferring the goods by way of security is prohibited.
- If the retained goods are processed by the Buyer, it is agreed that the processing shall be carried out in the name and for the account of the Seller as manufacturer and that the Seller shall acquire direct ownership or—if the processing is carried out using materials of multiple owners or the value of the processed item is higher than the value of the retained goods—co-ownership (fractional ownership) of the newly created item in the ratio of the value of the retained goods to the value of the newly created item. In the event that the Seller does not acquire such ownership, the Buyer hereby assigns its future ownership or—in the aforementioned ratio—co-ownership of the newly created item to the Seller by way of security. If the retained goods are combined or inseparably mixed with other items to form a single item, and if one of the other items is to be regarded as the main item, the Seller shall, insofar as the main item belongs to it, transfer to the Buyer pro rata co-ownership of the single item in the ratio specified in sentence 1.
- In the event of resale of the retained goods, the Buyer hereby assigns to the Seller by way of security the resulting claim against the Purchaser—in the event of co-ownership by the Seller of the retained goods, on a pro rata basis in accordance with the co-ownership ratio. The same shall apply to other claims that take the place of the retained goods or otherwise arise in respect of the retained goods, such as insurance claims or claims in tort in the event of loss or destruction. The Seller grants revocable authority to the Buyer to collect the claims assigned to the Seller in its own name for the account of the Seller. The Seller may revoke this collection authorisation only in the event of default enforcement.
- If third parties take hold of the retained goods, in particular by way of seizure, the Buyer shall immediately inform them of the Seller’s title and notify the Seller accordingly in order to enable the Seller to enforce its rights of ownership. If the third party is unable to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable for these to the Seller.
- The Seller shall release the retained goods as well as the items or claims that take their place upon request at its discretion, insofar as their value exceeds the amount of the secured claims by more than 20%.
- If the Seller withdraws from the Agreement in the event of conduct by the Buyer that is contrary to the terms of the Agreement—especially default of payment (default enforcement)—the Seller shall be entitled to demand the return of the retained goods.
Section 10: Final provisions
- The place of jurisdiction for all disputes arising from the business relationship between the Seller and the Ordering Party is St. Katharinen, Germany. St. Katharinen, Germany, shall be the exclusive place of jurisdiction for any legal action against the Seller. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
- The relations between the Seller and the Buyer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG) shall not apply.
- Should the Agreement or these General Terms of Delivery be found to contain gaps or omissions, such legally effective provisions that the contractual partners would have agreed in accordance with the commercial intentions of the Agreement and the purpose of these General Terms of Delivery if they had been aware of the gaps or omissions shall be deemed to have been agreed in order to fill these gaps or omissions.
- Note:The Buyer acknowledges that the Seller stores data arising from the contractual relationship in accordance with Section 28 of the German Federal Data Protection Act (Bundesdatenschutzgesetz) for the purpose of data processing and reserves the right to transmit the data to third parties (e.g. insurance companies) insofar as this is necessary for the performance of the Agreement.
Oskar Pahlke GmbH Schaumstoffe (2023)