TERMS AND CONDITIONS

I General – Scope

Our deliveries and services are provided exclusively in accordance with the following General Terms of Sale. These General Terms and Conditions of Sale shall only apply to merchants and entrepreneurs according to §14 BGB (German Civil Code). These General Terms and Conditions of Sale shall also apply to all future transactions between the contracting parties, without any special renewed reference. They shall also apply if we do not expressly refer to them in subsequent contracts, in particular also if we provide deliveries or services to the customer without reservation in the knowledge that the customer’s terms and conditions of business conflict with or deviate from our General Terms and Conditions of Sale. The General Terms and Conditions of Sale have been made known to you through our forms and our e-mail and Internet publications. The scope of application of these Terms and Conditions of Sale refers to all countries of delivery in which German law is applicable. Its applicability is already agreed upon herewith (see also Section III No. 2 of these conditions).

II Offers and Conclusion of Contract, Service Content

Our offers to the customer are not binding. The customer’s order shall be deemed a binding offer. Acceptance of this offer shall be effected at our discretion within 4 weeks by sending an order confirmation or by providing the ordered deliveries or services without reservation.
The technical data and descriptions in the respective product information or advertising material do not constitute a guarantee of the quality or durability of the goods to be supplied by us (alternatively: are exclusively valid agreed quality. Guarantees are not given unless they are agreed in individual contracts).
In the case of sales based on samples or specimens, these merely describe professional sample conformity, but do not constitute a guarantee for the quality or durability of the goods to be supplied by us.

III Prices, Terms of Payment, Default in Payment

The prices agreed upon at the conclusion of the respective contract, in particular those stated on the order form or order confirmation, shall apply. If a price has not been expressly determined, the prices according to our price list valid at the time of conclusion of the contract shall apply. For the calculation of prices, the weights and quantities, containers and two-component goods determined by us shall be weighed net, other goods from 10 kg gross = net, if the buyer does not object immediately after receipt of the goods. In addition to these prices, the value-added tax applicable on the day of delivery at the respective statutory rate as well as the costs for the packaging necessary for proper dispatch, the transport costs from our works or from our warehouse, the cartage costs and – if agreed – the costs of transport insurance are added. In the case of deliveries abroad, other country-specific charges may be added.
We reserve the right to adjust our prices appropriately if, after conclusion of the contract, changes in costs occur due to collective wage agreements, price increases by upstream suppliers or exchange rate fluctuations.
Our invoices are to be paid 5 days after receipt without deduction, unless a different term of payment has been agreed. After expiry of the due date stated on the invoice, the customer shall be in default in accordance with §286 Para. 2 No. 2 BGB (German Civil Code). The due date corresponds to the date of receipt of payment, not the date of the payment order.
The customer shall only be entitled to set-off or retention rights if his counterclaims have been legally established, are not disputed or acknowledged by us within 2 weeks of becoming aware of the set-off. Furthermore, the right of retention only exists if the asserted counterclaim is based on the same contractual relationship as our claim.
If the customer does not pay due invoices, exceeds a granted payment period or if the customer’s financial circumstances deteriorate after conclusion of the contract or if we receive unfavourable information about the customer after conclusion of the contract which calls into question the (status 2006) solvency or creditworthiness of the customer, we are entitled to make the entire remaining debt of the customer due and payable and, amending the agreements made, to demand advance payment or provision of security or, after delivery has taken place, immediate payment of all our claims based on the same legal relationship. This shall apply in particular if the customer ceases payments, a cheque from the customer is not honoured, a bill of exchange issued by the customer is not paid by the customer, insolvency proceedings have been applied for or opened against the customer’s assets, or insolvency proceedings have not been opened due to lack of assets.

IV Delivery and Performance Time, Delay in Performance

Agreed delivery times are only approximate, unless a firm deal has been expressly agreed in writing. If nevertheless agreed delivery periods are exceeded due to circumstances for which we are responsible, the customer may withdraw from the contract after the fruitless expiry of a reasonable grace period set by him. The withdrawal must be made in writing.
We shall only be in default after expiry of a reasonable grace period set by the customer. In the event of force majeure and other unforeseeable, extraordinary circumstances for which we are not responsible, such as operational disruptions due to fire, water and similar circumstances, failure of production facilities and machines, exceeding delivery deadlines or delivery failures by our suppliers as well as operational disruptions due to shortages of raw materials, energy or labour. Strike, lockout, difficulties in procuring means of transport, traffic disruptions, official interventions, we are entitled – insofar as we are prevented through no fault of our own from fulfilling our performance obligations on time by the aforementioned circumstances – to postpone the delivery or performance for the duration of the hindrance plus a reasonable start-up period. If the delivery or service is delayed by more than one month as a result of this, both we and the customer are entitled, to the exclusion of any claims for damages, to withdraw from the contract in writing under the conditions set out in Section VIII Nos. 1 to 6 of these Terms and Conditions of Sale with regard to the quantity affected by the delivery disruption.
In any case of delay, our liability for damages shall be limited in accordance with the provisions of Section VIII Nos. 1 to 6.
We are entitled to make partial deliveries and render partial services within the agreed delivery and service times if this is reasonable for the buyer.
Compliance with our delivery and performance obligations presupposes the timely and proper fulfilment of the obligations of the buyer. We reserve the right to raise the defence of non-performance of the contract.

V Transfer of Risk, Transport and Packaging Costs

Unless otherwise expressly agreed in writing between us and the customer, delivery shall be ex our factory or warehouse and shall be collected there by the customer at his own risk and expense. In this case, the risk of accidental loss and accidental deterioration of the contractual delivery items after they have been made available for collection shall pass to the customer upon receipt of the notification of readiness by the customer. In all other respects, the risk of accidental loss and accidental deterioration of the delivery items shall pass to the customer upon handover to the carrier (also in the case of carriage paid or insured delivery by us).
Returnable containers and packaging on loan must be returned by the customer within 60 days completely empty and carriage paid; loss of and damage to the returnable containers and packaging on loan shall be borne by the customer if he is responsible for this. Returnable packaging / containers may not be used for other purposes or for holding other products. They are exclusively intended for the transport of our delivered goods. Labels may not be removed. Disposable packaging will not be taken back by us. Instead, we will inform the customer of a third party who will accept the packaging in accordance with the German Packaging Ordinance. (Status 2006)

VI Duties of the Purchaser/Retention of Title

The delivered goods shall remain our property until the purchase price and all other present or future claims against the customer to which we are entitled from the business relationship have been paid in full. The inclusion of the purchase price claim against the buyer in a current account and the recognition of a balance shall not affect the retention of title.
The buyer is obliged to treat the object of purchase with care; in particular, he is obliged to insure it sufficiently at his own expense against loss and damage and destruction, e.g. against fire, water and theft, at replacement value. The customer hereby assigns to us his claims arising from the insurance contracts. We accept this assignment.
The customer may neither pledge nor assign by way of security the goods which are our property. However, he is entitled to resell the delivered goods in the ordinary course of business in accordance with the following provisions. The above-mentioned entitlement does not apply if the buyer has assigned or pledged the claim against his contractual partner arising from the resale of the goods – in each case effectively – to a third party in advance or has agreed a prohibition of assignment with him.
In order to secure the fulfilment of our claims mentioned in Section VI No. 1, the customer hereby assigns to us all claims – including future and conditional claims – arising from a resale of the goods supplied by us, together with all ancillary rights, in the amount of 110% gross of the value of the goods supplied, with priority over the remaining part of his claims. We hereby accept this assignment.
As long as and insofar as the buyer meets his payment obligations to us, he is authorised to collect the claims assigned to us against his customers within the scope of proper business management. However, he is not entitled to agree a current account relationship or prohibition of assignment with his customers with regard to these claims or to assign or pledge them to third parties. If, contrary to sentence 2, a current account relationship exists between the buyer and the purchasers of our reserved goods, the claim assigned in advance shall also refer to the acknowledged balance and, in the event of the purchaser’s insolvency, also to the balance then existing.
At our request, the customer must provide individual proof of the claims assigned to us and notify his debtors of the assignment, requesting them to pay us up to the amount of our claims against the customer. We are also entitled to inform the customer’s debtors of the assignment ourselves at any time and to collect the claims. However, we will not make use of these powers as long as the customer meets his payment obligations properly and without delay, no application for the opening of insolvency proceedings has been made by the customer and the customer does not stop payments. If one of the above-mentioned cases occurs, however, we can demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for the collection of the claim and hands over the corresponding documents.
In the event of seizure or other interventions by third parties, the buyer must inform us immediately in writing so that we can take legal action in accordance with §771 of the German Code of Civil Procedure.
The treatment, processing or transformation of the goods delivered by us under reservation of title shall always be carried out by the customer on our behalf without any obligations arising for us. If the goods delivered by us under retention of title are processed or mixed or combined with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods delivered by us (final invoice amount including VAT) to the other items at the time of processing, mixing or combining. For the rest, the same shall apply to the object resulting from the processing as to the object of sale delivered under reservation of title. If the processing, mixing or combination is carried out in such a way that the object of the buyer is to be regarded as the main object, it is deemed to be agreed that the buyer transfers proportional co-ownership to us. The buyer shall keep the sole ownership or co-ownership thus created in safekeeping for us. The buyer is entitled to dispose of the newly created products in the ordinary course of business (as of 2006) within the framework of proper business operations without pledging or assignment, as long as he fulfils his obligations from the business relationship with us in good time. The customer hereby assigns to us by way of security his claims arising from the sale of these new products, in which we have ownership rights, to the extent of our ownership share in the goods sold. If the buyer combines or mixes the delivered goods with a main item, he hereby assigns to us his claims against the third party up to the value of our goods. We hereby accept these assignments.
The customer also assigns to us the claims up to the value of our goods as security for our claims which arise against a third party through the connection of our goods with a property.
We undertake to release the securities to which we are entitled at our discretion at the request of the customer to the extent that the realisable value of our securities exceeds our claims against the customer to be secured by more than 20%.
In the event of the customer acting in breach of contract, in particular in the event of default in payment of more than 10% of the invoice amount for a not inconsiderable period of time, we shall be entitled – without prejudice to any further (compensation) claims to which we are entitled – to withdraw from the contract and demand the return of the goods we have delivered. After taking back the goods delivered by us, we shall be entitled to sell them. The proceeds of such realisation shall be set off against the customer’s existing liabilities to us – less reasonable realisation costs.

VII Rights of the Buyer in Case of Defects

Obvious material defects, wrong deliveries and deviations in quantity must be reported to us by the customer in writing immediately, but no later than 7 days after receipt of the goods by the customer, stating the production or batch number. Complaints do not entitle the customer/distributor to a deduction from the invoice. The buyer has the obligation to check, by means of a test processing, whether the delivered goods are free of defects and suitable for the intended use. This also applies if components are added which were not purchased from us. If any defects are only discovered during processing, the work must be stopped immediately and the unopened original containers that have not yet been processed must be secured. They must be made available to us for inspection on request. After 3 months from the transfer of risk to the buyer in accordance with Section V No. 1, notices of hidden defects are excluded and shall be deemed delayed if they should have been reasonably recognisable. In the event of a delayed or improperly asserted notification of defects in accordance with Section VII No. 1 Sentence 1 to 7, the buyer shall lose his rights in respect of defects under the conditions of Section VIII Nos. 1 to 6 of these Terms and Conditions of Sale, unless the defect has been fraudulently concealed by us.
In the event of defects in goods delivered by us, we shall be obliged, at our discretion, only to rectify the defect or to deliver goods free of defects (subsequent performance). If we are not prepared or not in a position to provide subsequent performance, in particular if this is delayed beyond reasonable time limits for reasons for which we are responsible, or if subsequent performance fails in any other way, the customer is entitled to withdraw from the contract at his discretion. VIII Rights and obligations of our company 1. our company shall only be liable for damages or futile expenses – irrespective of the legal basis – if the damages or futile expenses a) were caused by us or one of our vicarious agents by culpable violation of a material contractual obligation or b) are due to a grossly negligent or intentional violation of obligations by us or one of our vicarious agents. (Status 2006) According to Section VIII No. 1 Letter a and b, we are liable for damages or futile expenses caused by a consultation or information not to be paid separately only in the case of intentional or grossly negligent breach of duty, provided that this breach of duty does not constitute a material defect according to §434 BGB of the goods delivered by us. If we are liable in accordance with Section VIII No. 1 Letter a for the breach of an essential contractual obligation without gross negligence or intent, our liability for damages is limited to the foreseeable, typically occurring damage. In this case, we are in particular not liable for lost profits of the customer and unforeseeable indirect consequential damages. The above limitations of liability in accordance with sentences 1 and 2 apply equally to damages caused by gross negligence or intent on the part of our employees or agents. We shall not be liable for indirect damages of the buyer that arise from the assertion of contractual penalty claims by third parties.
If we are liable in accordance with Section VIII No. 1 Letter a for the breach of an essential contractual obligation without gross negligence or intent, our liability is limited to 1.535 million euros per case of damage. We undertake to take out and maintain insurance with appropriate coverage.
The above limitations of liability mentioned in Section VIII No. 1 to 3 do not apply if our liability is mandatory due to the provisions of the Product Liability Act or if claims are asserted against us due to injury to life, body or health. If the goods delivered by us lack a guaranteed characteristic, we shall only be liable for such damages whose absence was the subject of the guarantee.
Any further liability for damages other than that provided for in Section VIII Nos. 1 to 4 is excluded, irrespective of the legal nature of the asserted claim. This shall apply in particular to claims for damages arising from culpa in contrahendo pursuant to §311 para. 38GB, positive breach of contract pursuant to §280 BGB or due to tortious claims pursuant to §823 8GB.
Insofar as this liability for damages is excluded or limited pursuant to Section VIII Nos. 1 to 5, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents as well as vicarious agents.

IX Limitation of Claims

Claims of the customer due to defects in goods delivered by us or due to services rendered by us in breach of our obligations – including claims for damages and claims for reimbursement of futile expenses – shall become statute-barred within one year from the start of the statutory limitation period, unless otherwise provided for in the following Section IX No. 2 to 5.
If the buyer is an entrepreneur and if he or another buyer in the supply chain has fulfilled claims of the consumer as an entrepreneur due to defects in newly produced goods delivered by us, which were also delivered to a consumer as newly produced goods, the limitation of claims of the buyer against us from §437 and §478 para. 2 of the German Civil Code (BGB) comes into effect at the earliest 2 months after the point in time at which the buyer or the other buyer in the supply chain has fulfilled the claims of the consumer as a business, unless the buyer could have successfully invoked the plea of the statute of limitations against his customer contractual partner. The limitation of the claims of the buyer against us due to defective goods delivered by us shall apply in any case if the claims of the buyer’s customer contractual partner against the buyer due to defects in the goods delivered by us to the buyer have become statute-barred, at the latest, however, 1 year after the time at which we have delivered the respective goods to our buyer.

X Returns – Complaints/Claims

The return of the goods delivered by us free of defects is excluded. If, in exceptional cases, we agree to take back goods that are free of defects, a credit note will only be issued to the extent that our laboratory determines that they can be reused without restriction. For the costs of testing, preparation, reworking and repackaging, the actual costs, at least 20% of the invoice amount or at least 30 euros will be deducted. Such a credit note will not be paid out, but only serves as an offset against future deliveries. Complaints about our products (in particular VARIOSTONE) must always be submitted “in writing”, quoting the production or batch number. Only in this way can the supplier process the complaint. Complaints on the part of the customer do not entitle the distributor to a deduction from the invoice.

XI Prohibition of Assignment

Without our express written consent, no rights or claims against us, in particular those arising from defects in goods delivered by us or from breaches of duty committed by us, may be transferred in whole or in part to third parties or pledged to third parties; §354a of the German Commercial Code remains unaffected.

XII Place of Performance, Place of Jurisdiction, Applicable Law, Commercial Clauses

The place of performance and exclusive place of jurisdiction for all claims between us and merchants or legal entities under public law or special funds under public law is Oldenburg/Oldb, unless mandatory statutory provisions provide otherwise. However, we shall also have the right to bring an action against a customer at his legal place of jurisdiction.
The legal relationship between us and the customer shall be governed exclusively by the law of the Federal Republic of Germany, as it applies between German merchants and as could be effectively agreed in the respective countries of delivery (see Section I of these Terms and Conditions of Sale). The application of the regulations on the international sale of goods (CSIG – Vienna UN Sales Law) and German international private law are expressly excluded.
Insofar as trade clauses are agreed according to the International Commercial Terms (INCOTERMS), the INCOTERMS in their latest version (currently INCOTERMS 2000) shall apply.

XIII Final Provisions

Should any of the above provisions be invalid, partially invalid or excluded by a special agreement, the validity of the remaining provisions shall not be affected.
We store data of our customers within the scope of our mutual business relations in accordance with the Federal Data Protection Act.

DK Coatings GmbH
Bertha-Benz-Str. 20
D-26160 Bad Zwischenahn
Phone: +49 (0) 44 03 / 602 680
Fax: +49 (0) 33 03 / 602 6815
E-Mail: info(at)dk-coatings.com
Status: 2020/2021