General terms and conditions
General Terms and Conditions of Sale and Delivery of FRANZ DÜRHOLDT GmbH & Co. KG for the Business Unit Environmental Protection Products
Conclusion of contract
Orders concerning the environmental protection products to us, contract changes and supplements as well as additional agreements require the written form. Orders placed by telephone or in any other form will be considered accepted when the goods and invoice are dispatched or handed over.
Scope of application
The following terms and conditions of sale, delivery and payment for the business area of environmental protection products shall apply to all contracts, deliveries and other services including consulting services and information. They shall also apply to all future contracts with the Purchaser and to future deliveries and other services to be provided to the Purchaser. Any terms and conditions to the contrary are hereby rejected. In addition to private end customers, we also supply entrepreneurs (§ 14 BGB), legal entities under public law and special funds under public law.
Prices, price lists
Our prices for environmental protection products are ex works plus the disposal charges levied by the Dual System and shown in the list below. The prices valid at the time of placing the order shall apply. Value added tax is not included in the price and will be invoiced separately at the statutory rate. If delivery is requested during the following working day, an individual express delivery fee will be charged.
Our invoices for the business area environmental protection products are payable within 20 days after invoice without deduction, provided that no other valid arrangement was made in writing.
If FRANZ DÜRHOLDT GmbH & Co. KG is entitled on the basis of a SEPA direct debit mandate of the customer to collect claims against the customer by means of direct debit, the customer agrees that FRANZ DÜRHOLDT GmbH & Co. KG will send him a pre-notification at the latest three (3) calendar days before the day of the intended collection of a SEPA direct debit (execution date).
The customer shall be in default of payment upon receipt of the first reminder or, without a reminder, 30 days after the due date and receipt of an invoice pursuant to Section 286 (3) of the German Civil Code (BGB). In the event of default, we shall be entitled to interest on arrears in accordance with § 288 of the German Civil Code (BGB), subject to proof of further damage caused by default.
Offsetting with claims of the customer that are not recognized or not legally established is excluded. This also applies to a right of retention due to such counterclaims, insofar as these claims are not based on the same contractual relationship.
Our obligation to deliver the environmental protection products is subject to complete and correct self-delivery, unless the non-delivery or delay is our fault. We may make optional partial deliveries.
Custom-made products are permitted excess or short deliveries and will be taken into account in the invoice. With regard to the dimensions specified for our delivery items, we reserve the right to deviations customary in the trade, unless we have expressly assured compliance with the dimensions.
If the dispatch of the ordered delivery items is delayed for reasons for which the customer is responsible, the risk shall pass to the customer upon receipt of the notification of readiness for dispatch. The reliable dispatch of the ordered goods shall be ensured by carriers commissioned by us. The parties agree that in the event of a dispute, it is the responsibility of the purchaser to prove that a delivery has not been received.
Agreed delivery periods for the business area of environmental protection products shall be extended appropriately in the event of unforeseen hindrances beyond our control, e.g. corona, strike, lockout, operational disruptions, delays in the delivery of input material, irrespective of whether these hindrances occur at our premises or those of our subcontractors. This is also the case if we are already in default. If they occur, both parties are entitled to withdraw from the contract.
We grant the purchaser unrestricted statutory warranty rights despite legal possibilities of restriction and abbreviation.
Obvious defects of the environmental protection products must be notified in writing and specified within 10 days after receipt of the goods.
Exclusion of claims for damages
We shall only be liable – for whatever legal reasons – for damages resulting from the omission or incorrect execution of suggestions or advice given before or after the conclusion of the contract or from the breach of other secondary contractual obligations – in particular instructions for the operation and maintenance of the delivery item – which have not occurred on the delivery item itself, in the event of intent, in the event of gross negligence on the part of our organs or our executive employees, in the event of culpable injury to life, limb and health, in the event of defects which we have fraudulently concealed or the absence of which we have guaranteed, in the event of defects in the delivery item, insofar as liability exists under the Product Liability Act for personal injury or damage to privately used items.
In the event of culpable breach of material contractual obligations, we shall also be liable in the event of gross negligence on the part of non-executive employees and in the event of slight negligence, but in the latter case limited to reasonably foreseeable damage typical of the contract. Further claims for damages by the Environmental Products Business Unit are excluded. In case of damages due to delayed delivery of express orders (“delivery during the next working day”) FRAN DÜRHOLDT GmbH & CO. KG is liable up to a maximum amount of 250,- EUR per order. Further claims for damages caused by delay are excluded.
In addition, we assume no liability if the customer makes our products intended for professional use available to private end users.
Retention of title
The environmental protection products delivered by us shall remain our property until all our present claims against the purchaser, as well as future claims insofar as they are connected with the delivered items, have been fulfilled.
The purchaser is entitled to resell the delivered goods which are our property (goods subject to retention of title) in the ordinary course of business. However, he hereby assigns to us all claims arising from this resale, irrespective of whether the goods subject to retention of title are resold before or after processing or whether or not they are combined with real property or movable property. If the reserved goods are resold after processing or together with other goods that do not belong to us, or if they are combined with real estate or movable property, the purchaser’s claim against its customers shall be deemed assigned in the amount of the delivery price agreed between the purchaser and us for the reserved goods.
The purchaser shall be authorized to collect this claim even after the assignment. Our right to collect the claim ourselves shall remain unaffected, but we undertake not to do so as long as the customer duly meets his payment obligations. If the customer makes use of the right to collect, we shall be entitled to the collected proceeds in the amount of the delivery price agreed between the customer and us for the reserved goods.
Processing or transformation of the reserved goods shall be carried out for us as manufacturer in accordance with § 950 BGB (German Civil Code) without any obligation on our part. If the reserved goods are processed with other items, we shall acquire co-ownership of the new item in the ratio of the market value of our goods to the value of the other processed items at the time of processing. The customer shall keep the new item in safe custody for us free of charge with due diligence.
We undertake to release the securities to which we are entitled on request to the extent that their realizable value exceeds the claims to be secured by more than 20%.
If we accept bills of exchange as a means of payment, our retention of title shall continue to exist until it is established that we can no longer be held liable under this bill of exchange.
The information contained in a quotation is non-binding and does not exempt the customer from checking the goods for their suitability for the intended purposes, processes and applications. They shall only become part of the contract if and to the extent that they have been expressly confirmed by us as binding. Guarantees as to the quality of the environmental protection products are only those which are expressly designated as such in the order confirmation. Application, use and processing of the purchased goods are the sole responsibility of the customer. We reserve the property rights and copyrights to all documents. They may only be used for the contractually intended purpose without our consent and may not be made accessible to third parties.
The company FRANZ DÜRHOLDT GmbH & Co. KG is entitled to store and transmit the following data related to the orderer: Address data, application for an order to pay or action against the orderer in the case of an undisputed claim (with date of submission to the court), application for insolvency (with date of submission of the application), decisions of the insolvency court on the application for insolvency (with date), compulsory execution already carried out (date of the respective application, type of measure), issuance of an arrest warrant within the scope of execution (with date), order of an appointment for the submission of an affidavit or acceptance of the same (with date), number of days of exceeding the agreed payment term, existence of an arrest warrant for pecuniary offenses. In individual cases, however, this data will only be passed on to the Schutzgemeinschaft after prior examination if this is necessary to protect our legitimate interests, the legitimate interests of a contractual partner of the Schutzgemeinschaft or the general public. The Schutzgemeinschaft für Warenkreditgeber stores this data and passes it on exclusively to other members of the Schutzgemeinschaft after prior examination of the credibility of a legitimate interest. The purpose is exclusively the protection of the companies affiliated to this community against insolvency of the debtors in case of advance performance of the seller. Only the above-mentioned objective data without subjective value judgments will be transmitted to and from the Schutzgemeinschaft. The customer can receive information about the data stored at the Schutzgemeinschaft concerning him, the address of the Schutzgemeinschaft and a list of the companies affiliated to it will be provided on request.
Place of performance, place of jurisdiction, applicable law
The place of performance is Wuppertal. The place of jurisdiction for all disputes arising from our legal relationship with the customer shall also be Wuppertal. However, we are also entitled to take legal action at the headquarters of the purchaser. German law shall apply; in exceptional cases, UN sales law shall also apply.