GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
I. Scope of application
1. These Terms and Conditions shall apply exclusively to all incoming orders, unless otherwise agreed in writing. These Terms and Conditions shall not apply to legal transactions with consumers. Orders placed on the basis of standard terms and conditions of purchase shall always be deemed to have been concluded in accordance with our Terms and Conditions of Sale, even if we do not expressly reject them.
2. If our Terms and Conditions of Delivery and Payment are already known to the customer, they shall also apply to future business transactions without new notification. Orders for goods and the acceptance of our deliveries or services shall be deemed to be an acknowledgement of our Terms and Conditions.
3. Subsidiary agreements, amendments and deviations from these Terms and Conditions must be made in writing.
4. Other contractual conditions shall not apply even if we do not object to them and the contract is executed.
II. Conclusion of the contract
1. Our offers are non-binding. The documents belonging to the offer are only for the orientation of the customer and in no case are to be regarded as an agreement on quality or the assumption of a guarantee of quality with regard to the described goods or performance/date, and may not be passed on to third parties.
2. Orders are accepted by us via written order confirmation. Otherwise, orders shall be deemed to have been accepted if we have either executed the order or have not declared rejection within 10 days of receipt thereof.
3. Verbal agreements, promises and guarantees made by our employees – with the exception of executive bodies, authorised signatories and general representatives – in connection with the conclusion of the contract shall only become binding upon our written confirmation. The waiver of this written form requirement must also be in writing. The written form requirement is always met by fax or e-mail.
4. Supplementary clauses to the description of the goods such as “approximate”, “as already delivered”, “as before” or similar additions in our offers refer exclusively to the quality or quantity of the goods, but not to the price or delivery date. Such statements in orders of the buyer shall be understood by us accordingly.
5. Our indications of quantity are approximate. In the event of delivery in top-mounted or permanently connected tanks as well as in silo vehicles, deviations of +/- 10 % of the agreed quantity shall be deemed to be in accordance with the contract. Such quantity deviations reduce or increase the agreed purchase price accordingly.
III. Prices
1. The agreed prices shall apply plus the statutory value added tax applicable on the day of delivery, in particular taking into account the respective place of delivery.
2. The weights, numbers of items and quantities determined by us shall be decisive for the calculation if the recipient does not immediately object.
3. If prices are staggered according to the quantity delivered, the price corresponding to the quantity delivered shall be invoiced irrespective of the originally stated staggered price.
4. We will not increase prices within the first four weeks after conclusion of the contract. Thereafter, we reserve the right to adjust our prices in accordance with § 315 BGB.
IV. Technical application advice
1. We provide technical advice to the best of our knowledge. All data and information on the suitability and application of our goods do not exempt the customer from carrying out their own tests and trials to determine the suitability of our products for their intended processes and purposes.
2. The limitation period for claims arising from faulty advice is three years, starting from the end of the year in which the claim arose. If the claims are based on intentional acts, the statutory provisions on the commencement of the limitation period shall apply.
V. Delivery
1. Unless expressly agreed otherwise, delivery shall be made ex our works or warehouse, or ex the works or warehouse of our commissioned pre-supplier.
2. In the event of agreed collection, the risk of accidental loss and accidental deterioration of delivery items shall pass to the customer upon notification of provision. Otherwise, the risk shall pass to the customer at the time the goods are handed over to the carrier by us. The mode and route of dispatch shall be chosen by us. Additional costs due to a deviating wish of the customer shall be borne by them.
3. Partial deliveries which are reasonable for the customer are permissible.
4. Delivery and performance deadlines shall always be deemed to be approximate. This also applies to the delivery dates stated in offers and order confirmations. These are to be understood as “expected delivery date” and are only binding if they are expressly agreed as such separately in writing and marked with the addition “binding”. In the case of deliveries which do not affect our business (drop-shipments), the delivery date and period shall be deemed to have been complied with if the goods leave the place of delivery in such good time that, given normal transport times, the delivery arrives at the recipient’s premises in good time.
Significant, unforeseeable operational disruptions, delivery delays or delivery failures on the part of our suppliers for which we are not responsible, as well as operational interruptions due to a shortage of raw materials, energy or labour, strikes, lockouts, difficulties in procuring means of transport, traffic disruptions, acts of God and cases of force majeure on our part or on the part of our sub-suppliers shall extend the delivery period by the duration of this impediment to performance, insofar as they are of significance for the ability to deliver the goods. This also applies to delivery dates marked as “binding”. We shall inform the customer immediately of the beginning and end of such impediments. If delivery is delayed by more than one month as a result, both the customer and we shall be entitled to withdraw from the contract with regard to the quantity affected by the disruption in delivery, to the exclusion of any claims for damages.
5. We shall not be liable in the event of impossibility or delay in the fulfilment of delivery obligations, if and to the extent that the impossibility or delay is due to circumstances caused by the buyer, in particular to the fact that the buyer is fulfilling their obligations under public law in connection with the European Regulation (EC) No. 1907/2006 (REACH Regulation) as amended.
6. If the delivery of the goods to the customer cannot take place due to circumstances for which the buyer is responsible, we are entitled to charge the customer for delivery and storage costs incurred or to be incurred by us.
7. Costs arising from stand and waiting times shall be borne by the customer.
8. If the buyer does not accept the goods, we shall be entitled to withdraw from the contract after the unsuccessful expiry of a period of seven days set for acceptance and, in addition, to demand compensation for futile expenses.
9. The buyer shall in any case be responsible for unloading and storing the goods.
VI. Payment
1. The invoice amount is to be paid net within 30 days. Deviating payment terms and discount agreements must be made in writing. Timely payment shall only be deemed to have been made if we can dispose of the money with value date on the due date in the account specified by us. A discount on new invoices is excluded if older invoices due have not yet been paid.
2. In the event of late payment, interest on arrears shall be payable at a rate of 8% above the respective base interest rate. Both we and the customer shall be at liberty to prove higher or lower damages.
3. The handing over of bills of exchange is not a cash payment and is only permissible with our prior consent on account of payment. Discount and bill charges shall be borne by the customer.
4. The offsetting of counterclaims of the customer or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established.
5. Repeated non-payment of due invoices or other circumstances which indicate a significant deterioration in the financial circumstances of the customer after conclusion of contract shall entitle the customer to immediately call in all our claims which are based on the same legal relationship. In the aforementioned cases, we shall only carry out deliveries which have not yet been carried out by us when the due invoices have been paid or corresponding securities have been provided by the customer.
VII. Packaging
1. The returnable containers made available by us on loan (hereinafter referred to as: “MW containers”) shall remain our property. After arrival, they are to be emptied as soon as possible and either handed over to our vehicles for a subsequent delivery against confirmation of receipt or returned to us in a usable condition by the buyer at their expense and risk, whereby the railway regulations for the return of empties are to be observed. In this case, the customer shall bear the costs of returning the containers.
We request that you notify us in each case of rail returns for returnable containers. In the event of the return of returnable containers on the customer’s own responsibility, the delivery address and the delivery day must be agreed with us before the return. If this agreement is not reached, any forwarding of the containers will be charged to the customer. Acceptance of the returnable containers may also be refused by us.
Alternatively, extra journeys to collect the containers may be agreed with us, in which case the customer may be charged for the transport and logistics costs incurred. If returnable containers are to be taken with us by our vehicle for a subsequent delivery, this must be agreed with us before delivery of the subsequent delivery.
Otherwise, we may refuse to take back the returnable containers.
2. If the delivery is made in returnable containers, these must be returned empty and carriage paid within four weeks of receipt of the delivery. Loss of and damage to returnable packaging shall be borne by the customer as long as it has not been returned to the supplier, if the customer is responsible for this. In the case of returnable stainless steel IBCs, we shall make the container available to the customer free of charge for 12 weeks. If the MW containers have not been returned to us twelve weeks after delivery, they shall be deemed to have been rented to the customer from the 13th week of their absence from us at the currently valid rental prices per month. The current rental prices per month for the corresponding containers are available on request. If the MW containers have not been returned to us 24 weeks after delivery, we shall be entitled to invoice the customer for the container as a whole. The current sales prices for the individual containers are available on request.
3. Returnable packaging may not be used for other purposes or to hold other products. They are only intended for the transport of the delivered goods. Labelling or other marks may not be removed. Our MW containers may under no circumstances be used to hold other products as storage containers, for the storage and return of contaminated solvents or for other purposes contrary to their intended use. We will charge the cleaning fees / disposal costs incurred by us due to non-observance of this instruction at cost price. Passing on to third parties is not permitted unless this has been agreed in writing.
4. All damage to and loss of our packing materials during their absence from our works shall be borne by the customer, irrespective of whether they are at fault or not. This applies in particular to damage caused by soiling and to losses attributable to force majeure, confiscation or the like. We shall in each case charge the prices that we would have to apply if we had to purchase corresponding new containers.
5. Disposable packaging will not be taken back by us unless agreed in advance. Upon request, we will inform the customer of a third party who will recycle the packaging in accordance with the Packaging Ordinance.
VIII. Obligations to examine, give notice of defects and inspect goods
1. The customer shall inspect the goods immediately upon delivery and check them for existing defects. Information and statements regarding the delivered products and their properties (e.g. specifications, safety data sheets, etc.), which were provided to the customer by us prior to placing the order, do not release the customer from their obligation to inspect the goods upon delivery pursuant to §§ 376 and 377 of the German Commercial Code (HGB). In particular, we shall not be liable under any circumstances for damages incurred by the customer due to omitted, improper or insufficient incoming goods inspection.
By accepting the goods, the customer acknowledges the goods as “delivered as ordered”.
If a defect is detected upon delivery of the goods, we shall, in the event of a justifiable complaint, either remedy the defect or deliver defect-free goods at our discretion. For replacement deliveries, the customer shall grant us a period of four weeks from the day of the customer’s refusal to accept the goods. The customer may only reduce the purchase price after rectification of the defect has failed.
Hidden defects must be notified to us in writing within three working days of their discovery. The timely dispatch of a notice of defect shall be sufficient for compliance with the above deadlines.
If the customer refers to a hidden defect in their complaint, the customer is obliged, within the scope of their duty to cooperate, to notify us in writing of a request to take back the delivered goods within seven working days after discovery of the defect.
2. If the customer does not fulfil the inspection and complaint obligations incumbent on them under Clause 1, or does not do so in good time, the goods shall be deemed to have been approved. Insofar as the goods are deemed to have been approved, the customer may no longer assert any warranty rights against us, unless we have fraudulently concealed defects.
3. The customer must check – if necessary by trial processing – whether the delivered goods are suitable for their intended use. This applies in particular if thinners, hardeners, additional varnishes or other components are added which were not purchased from us.
4. If the customer does not fulfil the inspection obligation incumbent upon them in accordance with section 3, or does not fulfil it in good time or properly, warranty claims or other claims for damages by the customer against us shall be excluded to the extent that the performance of the inspection would have reduced the damage that has occurred.
Otherwise, we shall only be liable within the scope of IX. and X.
IX. Warranty
1. If the goods have a material defect at the time of transfer of risk, we shall first make a replacement delivery or exchange the goods. If a subsequent delivery or exchange of the goods is not possible, involves disproportionate effort or if the replacement delivery itself is defective, the customer shall be entitled to the rights set out in Clause 2. Disproportionate expenditure for the subsequent or replacement delivery shall be assumed if the costs of the subsequent or replacement delivery exceed the value of the item by 10% at the time of the transfer of risk.
2. If we are unable to remedy the material defect within a reasonable period of time for subsequent performance, the customer may, at their discretion, reduce the purchase price, withdraw from the contract or claim damages in accordance with X. above. If the subsequent or replacement delivery is unreasonable for the customer, they shall be entitled to the rights set out in sentence 1 immediately. The right to withdraw from the contract and to claim damages is excluded in the case of insignificant material defects.
3. The above warranty claims are subject to a limitation period of one year, which begins with the delivery of the goods to the customer.
4. If the goods delivered by us are resold by the customer or by one of his buyers to an end consumer, the statutory provisions shall apply to the customer’s warranty for defects. However, we shall only provide compensation for damages within the scope of IX No. 2 S. 1, X. If, however, the customer does not fulfil their duties of inspection, notification of defects and examination as stipulated under VIII, or does not do so in due time or in an orderly manner, the customer’s warranty rights in respect of defects vis-à-vis us shall expire.
5. Claims arising from material or financial damage caused by the customer’s products, their use or effect are excluded from the warranty.
X. Liability for other claims for damages
1. In the event of a merely negligent breach of duty by us or our vicarious agents, our liability shall be limited to the foreseeable damage typical for the contract. To the extent permitted by law, liability shall in any case be limited to the amount of the order value concerned.
2. We exclude any liability for damage caused by the further processing of the delivered product or by the resulting products.
XI. Retention of title
1. We retain ownership of the delivered goods until the purchase price has been paid in full. The delivered goods remain our property until all claims from the current business relationship with the customer have been settled. The retention of title shall remain in force even if individual claims have been included in current invoices and the balance has been struck and recognised. Purchase price claims shall not be deemed extinguished despite payment as long as a bill of exchange liability assumed by us in this context – such as in the context of a cheque/bill of exchange procedure – continues to exist.
2. The customer shall process or mix the goods on our behalf without this giving rise to any liability on our part. In the event of processing or mixing with other items not belonging to us, the customer hereby assigns to us co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other processed items as security for our claims, subject to the proviso that the customer shall hold the new item in safe custody for us.
3. The customer is entitled to dispose of these products in their ordinary course of business as long as they fulfil their obligations from the business relationship with us in due time.
4. Claims arising from the sale of goods to which we are entitled to ownership rights shall be assigned to us by the customer here and now as security to the extent of our ownership share in the goods sold. If the customer combines or mixes the delivered goods with a main item of a third party against payment, they hereby assign to us as security their claims for remuneration against the third party up to the amount of the invoice value of the delivered goods.
5. At our request, the customer shall provide us with all necessary information on the stock of goods owned by us and on the claims assigned to us and shall inform their customers of this assignment.
6. The customer is obliged to carefully store the goods subject to retention of title and to insure them against loss and damage at their own expense. They hereby assign their claims from the insurance contracts to us in advance. We accept this assignment already now.
7. If the value of the securities exceeds our claims by more than 10%, we shall release securities of our choice to this extent at the customer’s request.
8. The customer’s right to dispose of the products subject to our retention of title and to collect the claims assigned to us shall expire as soon as they stop payment and/or suffer a loss of assets. If these preconditions occur, we shall be entitled to demand the immediate provisional surrender of the entire goods subject to our retention of title, excluding the right of retention, without setting a grace period or exercising the right of rescission.
9. Insofar as the retention of title should not be effective according to the law of the country in which the delivered goods are located, the customer shall provide equivalent security at our request. If they do not comply with this request, we may demand immediate cash payment of all outstanding invoices, irrespective of any agreed payment terms.
XII. Data protection
We are entitled to process data about the customer received in relation to the business relationship or in connection with it, irrespective of whether this data originates from the customer themselves or from third parties, in accordance with the Federal Data Protection Act. In this regard, we refer to our Privacy Policy.
Data transmission to Creditreform Boniversum GmbH
Our company regularly checks your creditworthiness when concluding contracts and, in certain cases where there is a legitimate interest, also for existing customers. For this purpose, we work together with Creditreform Boniversum GmbH, Hammfelddamm 13, 41460 Neuss, from whom we receive the data required for this purpose. We transmit your name and contact details to Creditreform Boniversum GmbH to this end. The information pursuant to Art. 14 of the EU General Data Protection Regulation on the data processing carried out at Creditreform Boniversum GmbH can be found here: https://www.boniversum.de/en/eu-gdpr/information-required-under-the-eu-gdpr-for-consumers
Data transfer to SCHUFA Holding AG
Our company transmits personal data collected within the scope of this contractual relationship to SCHUFA Holding AG, Kormoranweg 5, 65201 Wiesbaden regarding the application, execution and the termination of this business relationship as well as data regarding non-contractual behaviour or fraudulent behaviour.
The legal basis for these transfers is Article 6(1)(b) and Article 6(1)(f) of the General Data Protection Regulation (GDPR). Transfers on the basis of Article 6(1)(f) GDPR may only take place if this is necessary to protect the legitimate interests of pantocomo GmbH or third parties and if the interests or fundamental rights and freedoms of the data subject, which require the protection of personal data, do not take precedence. The exchange of data with SCHUFA also serves the fulfilment of legal obligations to carry out creditworthiness checks on customers (Sections 505 a and 506 of the German Civil Code).
SCHUFA processes the data received and also uses it for the purpose of profiling (scoring) in order to provide its contractual partners in the European Economic Area and Switzerland and, if applicable, other third countries (insofar as an adequacy decision of the European Commission exists in respect of these or standard contractual clauses have been agreed, which can be viewed at https://www.schufa.de) with information on, among other things, the assessment of the creditworthiness of natural persons. More detailed information on the activities of SCHUFA can be found in the SCHUFA information sheet pursuant to Art. 14 GDPR or viewed online at https://www.schufa.de/schufa-en/data-privacy/.
Notification in accordance with the requirements of § 31 (2) sentence 1 no. 4 BDSG
We would like to point out that, in accordance with Art. 6(1)(f) GDPR, we may transmit data on claims that have not been settled despite being due to SCHUFA Holding AG, Kormoranweg 5, 65201 Wiesbaden and that this data may be taken into account there in the determination of probability values (scoring), provided that you have been reminded in writing at least twice after the claim became due, the first reminder was sent at least four weeks ago and you have not disputed the claim.
Further information about SCHUFA is available in the SCHUFA information sheet and at https://www.schufa.de/schufa-en/data-privacy/.
XIII. Jurisdiction and place of performance
1. The place of performance for all liabilities arising from the business relationship or from the individual contract is our respective shipping point, for payment our registered office.
2. The place of jurisdiction is Karlsruhe; this also applies to disputes in proceedings involving documents, bills of exchange or cheques.
3. The contractual relations with our customers shall be governed exclusively by the law of the Federal Republic of Germany.
XIV. Final clause
Should individual provisions of the above terms and conditions be invalid, the invalid provisions shall be replaced by provisions which come as close as possible to the economic purpose of the contract, taking due account of the interests of both parties. The validity of the remaining provisions shall not be affected thereby.
Last updated 28/05/2021
pantocomo GmbH