General Terms and Conditions of Business - Terms of Sale and Delivery
General Terms and Conditions
of Saveway Isolierstoffe GmbH
Valid from: 01.06.2022
Registered company seat: Geratal OT Geraberg
Commercial Register No.: HRB 305353 (Jena Local Court)
- 1 Applicability, regulatory content
1.1 The sale of our products and our services and deliveries shall be made exclusively on the basis of the following Terms and Conditions (GTC). These GTC shall apply to contracts for the sale and/or delivery of movable items (goods) in particular, irrespective of whether we manufacture the goods ourselves or purchase them from our suppliers (Sections 433, 650 of the German Civil Code (BGB)). Unless otherwise agreed, these GTC shall also apply to all future transactions, insofar as they are transactions of the same kind, in the version valid at the time of the Buyer's order or, in any case, in the version last notified to them in text form as a framework agreement, without our having to refer to them again in each individual case.
1.2 These GTC shall only apply to contractors pursuant to § 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law.
1.3 The customer's terms and conditions shall not apply, even if we do not specifically object to their application. Deviating, contradictory or supplementary terms and conditions of the customer shall only apply if they have been expressly and individually recognized by us in terms of language. This shall also apply if we carry out the delivery to the customer without proviso in the knowledge of the customer's terms and conditions.
1.4 Individual agreements made with the customer in individual cases (including supplementary agreements, additions and amendments) shall take precedence over these GTC. Subject to proof of the contrary, a written contract or our written consent shall be binding for the content of such agreements.
1.5 References to the applicability of the legal provisions shall only be of a clarifying nature. Even without such clarification, the legal provisions shall apply unless they are directly amended or expressly excluded in these GTC.
1.6 Declarations and notifications of legal relevance by the Purchaser with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) shall be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in case of doubts about the legitimacy of the declaring party, remain unaffected.
- 2 Conclusion of contract
2.1 The quotations of SAVEWAY ISOLIERSTOFFE GMBH are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, cost estimates, references to DIN standards), other product descriptions or documents - also in electronic form - to which we expressly reserve property rights and copyrights.
2.2 The contract shall be deemed concluded by the Buyer's order (quotation) and the acceptance of the same by SAVEWAY ISOLIERSTOFFE GMBH. The Buyer's order shall be deemed to be a binding offer to enter into a contract. If the acceptance by SAVEWAY ISOLIERSTOFFE GMBH differs from the customer's order, this shall be deemed to be a new quotation by SAFEWAY ISOLIERSTOFFE GMBH without engagement. Unless otherwise stated in the order, we shall be entitled to accept the Buyer's order (quotation) within two weeks after its receipt by us. The acceptance can be declared in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.
- 3 Content of services
3.1 Technical data in the respective specifications sheets are solely applicable agreed properties of the goods to be delivered by us. No guarantees shall be given unless these have been agreed in individual contracts. In the case of sales based on samples or specimens, the samples or specimens merely describe these in terms of professional sample conformity, but do not constitute a guarantee of the quality or durability of the goods to be supplied by us.
3.2 The Buyer shall not be granted any ownership, license, usage, trademark or other rights to companies and trademarks of SAVEWAY ISOLIERSTOFFE GMBH on the basis of the business relationship with SAVEWAY ISOLIERSTOFFE GMBH. Unless a written consent of SAVEWAY ISOLIERSTOFFE GMBH has been given, the buyer is not allowed to use trademark rights of SAVEWAY ISOLIERSTOFFE GMBH. If consent has been given, SAVEWAY ISOLIERSTOFFE GMBH shall be entitled at any time to withdraw the Buyer's use of the trademark rights without being obliged to pay any compensation.
- 4 Prices, terms of payment, payment delays
4.1 Unless otherwise agreed in individual cases, the prices shall apply ex warehouse plus the applicable statutory VAT and excluding packaging and other shipping and transport costs. The packaging shall be charged at cost price and shall only be taken back if the Seller is obliged to do so by virtue of mandatory statutory provisions. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
4.2 In case more than 4 months elapse between the conclusion of the contract and the delivery, without the Seller being responsible for a delay in delivery, the Seller may reasonably increase the price taking into account any increases in material, labor and other incidental costs which have occurred and which are to be borne by the Seller. Should the purchase price, in such a case, increase by more than 40%, the Buyer shall be entitled to withdraw from the contract.
4.3 If the Seller takes into account the Buyer's requests for changes, the Buyer shall bear the additional costs incurred thereby.
4.4 The purchase price is due and payable within 14 days from receipt of the consideration and of the invoice. The place of performance for the payment of the purchase price is the registered office of the Seller.
4.5 Upon expiry of the aforementioned payment period, the Buyer shall be in delay. During the period of delay, interest shall be charged on the purchase price at the applicable delay interest rate; this is currently 9 percentage points above the respective base interest rate. In addition, the lump sum for damages caused by delay in the amount of 40 euros shall be incurred. The Seller reserves the right to claim further damages caused by the delay, taking into account the lump sum for damages caused by the delay. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.
4.6 Failure to pay the purchase price when due shall constitute a fundamental breach of contractual obligations.
4.7 The Buyer may only set off claims of SAVEWAY ISOLIERSTOFFE GMBH against a counterclaim which is undisputed or has been legally established. The same shall apply to the application of a right of retention. In the event of defects in the delivery, the Buyer's counter rights shall remain unaffected.
4.8 Should it become apparent after the conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to the purchase price is at risk due to the Buyer's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacturing of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory provisions on the dispensability of the setting of a deadline shall remain unaffected.
- 5 Delivery period, delay in delivery
5.1 The stated delivery times are non-binding, unless a definite delivery date has been expressly agreed in the individual case. If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this and at the same time notify the Buyer of the expected new delivery deadline. If the service is still not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the Buyer. The unavailability of the service in this sense shall also include, in particular, the untimely delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obligated to procure in the individual case.
5.2 SAVEWAY ISOLIERSTOFFE GMBH shall not be liable for impossibility of delivery or for delays in delivery if such impossibility or delay is caused by force majeure or other events not foreseeable at the time of conclusion of the contract and for which SAVEWAY ISOLIERSTOFFE GMBH is not responsible. A case of force majeure shall be deemed to exist in particular in the event of natural events, war, industrial disputes, shortage of raw materials and energy, traffic disruptions, fire and explosion damage, acts of God, difficulties in procuring means of transport, other operational disruptions caused by fire, water, official interventions, difficulties in obtaining necessary official permits, official measures or the failure to deliver, incorrect delivery or late delivery by suppliers, disease (including epidemics, pandemics and in particular the Corona pandemic), insofar as warnings are published in particular by the Robert Koch Institute. With regards to the Corona pandemic, a case of force majeure shall also exist - independently of or in addition to the assessment of the Robert Koch Institute - in particular if the federal or state legislator or the locally competent authority in each case imposes measures that conflict with the implementation of the contractual purpose.
5.3 If such events of force majeure in particular lead to delays in delivery and performance or reduce the availability of the goods from the facility where we source our goods, so that we are unable to fulfill our contractual obligations (taking into account other internal or external delivery obligations on a pro rata basis), we are
- a) released from our contractual obligations for the duration of the disruption and to the extent of its effects, and
- b) not obliged to procure the goods from third parties.
We shall, in particular, be entitled to postpone the delivery or service for the duration of the disruption plus a reasonable start-up period. This shall also apply if these events and circumstances, for which we are not responsible, make the performance of the affected business permanently uneconomical for us or occur at our upstream suppliers. If these events last longer than 3 months, we shall be entitled to withdraw from the contract.
5.4 Delivery deadlines, including non-binding delivery deadlines, are always given subject to the Buyer's cooperation as agreed in the contract.
5.5 The onset of our delay in delivery shall be determined according to the statutory provisions. In any case, however, a reminder by the Buyer shall be required. If agreed delivery times are exceeded due to circumstances for which we are responsible, the Buyer may withdraw from the contract in writing after the unsuccessful expiry of a reasonable period of grace set by him in writing, which as a rule must be at least 15 working days. The withdrawal must be made in writing. Only after the expiry of the aforementioned period of grace shall we be in delay. We are entitled to partial deliveries and partial services within the agreed delivery and service times if this is reasonable for the Buyer.
5.6 Further rights of the Buyer, in particular upon exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
- 6 Delivery, Transfer of Risk, Acceptance, Delay in Acceptance
6.1 Unless otherwise agreed between us and the Buyer, delivery shall be made from the same location as the place of performance for the delivery and any subsequent performance. Delivery may also be made from the factory of the Seller's own supplier. Delivery shall be made to the Buyer's warehouse or any other destination notified by the Buyer in due time. The Buyer shall notify any changes in the place of destination without undue delay. Any additional costs caused by the change of destination shall be borne by the Buyer.
6.2 The costs for transport as well as any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
6.3 The risk of accidental loss and accidental deterioration of the delivery items shall pass to the Buyer upon handover to the forwarding agent, carrier or other person or institution designated to carry out the shipment. If, in exceptional cases, a self-collection has been agreed, the risk of accidental loss and accidental deterioration of the delivery items shall pass to the Buyer upon acceptance. Accordingly, the statutory provisions of the law on contracts for work and services shall apply. Handover or acceptance shall be deemed to have taken place if the Buyer is in delay with acceptance, too. The Buyer shall be responsible for the proper storage of the delivered goods.
- 7 Retention of Title
7.1 The Seller retains title to the purchased and delivered goods until full payment of all current and future claims arising from the purchase contract and an ongoing business relationship.
7.2 The Buyer shall not be entitled to pledge the goods subject to retention of title to third parties or to assign them by way of security, but shall be entitled to further sell the goods subject to retention of title in the ordinary course of business. The Buyer herewith assigns to the Seller by way of security the claims arising from this against its business partners. The seller accepts the assignment. The Buyer is revocably entitled to collect the claims assigned to the Seller for the Seller's account in their own name.
7.3 Should the Buyer act in breach of contract, in particular in the event of a failure to pay the due purchase price, the Seller shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and the withdrawal. If the buyer does not pay the purchase price, the seller may only assert these rights if he has previously unsuccessfully set a reasonable deadline for payment to the buyer or such a deadline is redundant under the statutory provisions.
7.4 The retention of title shall extend to the products resulting from the processing, mixing or combination of the goods at their full value. If, in the event of processing, mixing or combining with goods of third parties, their ownership remains, the Seller shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Furthermore, the same shall apply to the resulting product as to the goods delivered under retention of title.
7.5 If the value of all securities existing for the Seller exceeds the existing claims by more than 10%, the Seller shall release securities of the Seller's choice upon the Buyer's request.
- 8 Buyer's obligation to inspect and notify defects; warranty for defects
8.1 The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including wrong delivery and reduced delivery), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier recourse according to §§ 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the purchaser or another entrepreneur, e.g. by incorporation into another product.
8.2 Furthermore, the Buyer's claims for defects shall require that he has complied with his statutory obligations to inspect and notify defects (§§ 377, 381 HGB). The Buyer shall ensure that immediately after arrival at the place of destination the conformity of the marking of the delivery with the order is checked and the delivery is carefully examined for defects. In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. The goods shall be deemed approved if SAVEWAY ISOLIERSTOFFE GMBH has not received a written notice of defect with regards to obvious defects or other defects which were recognizable during an immediate, careful inspection, immediately after receipt of the goods, otherwise immediately after discovery of the defect. In any case, obvious defects shall be notified in writing within 5 - five - working days from delivery and defects not recognizable upon inspection within the same period from discovery. If the purchaser fails to properly inspect the goods and/or notify us of the defect, our liability for the defect that was not notified in time or not properly notified shall be excluded in compliance with the statutory provisions. The purchaser shall ensure that any processing of a defective delivery is omitted.
8.3 Insofar as the nature has not been agreed or otherwise regulated in these GTC, the legal regulation shall be used to assess whether or not there is a defect (§ 434 Para. 1 S. 2 and 3 BGB). We accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements) to which the purchaser has not drawn our attention as being decisive for his purchase. As a matter of principle, we shall not be liable for defects of which the purchaser is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB).
8.4 In the event of SAVEWAY ISOLIERSTOFFE GMBH's liability for defects in the goods delivered, SAVEWAY ISOLIERSTOFFE GMBH shall, at its option, initially only be obliged to remedy the defect or to deliver non-defective goods (subsequent performance). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected. We shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. The Buyer shall, however, be entitled to retain a reasonable part of the purchase price in relation to the defect.
8.5 The Buyer shall give us the time and opportunity required for the required subsequent performance, in particular to hand over the defective goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor the re-installation if we were not originally obliged to install the item.
8.6 If a reasonable deadline set by the Buyer to SAVEWAY ISOLIERSTOFFE GMBH for subsequent performance (repair or subsequent delivery) has expired unsuccessfully, if subsequent performance has failed or if setting a deadline is dispensable for other reasons in accordance with the statutory provisions, the Buyer may, at their option, withdraw from the contract or reduce the compensation. In the case of an insignificant defect, however, there shall be no right of withdrawal.
8.7 The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs as well as, if applicable, removal and installation costs shall be borne or reimbursed by us in accordance with the statutory provisions if there actually is a defect. Otherwise, we shall be entitled to demand reimbursement from the Buyer of the costs incurred as a result of the unjustified request to eliminate the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Buyer.
8.8 The Buyer's claims for damages or reimbursement of futile expenses shall only exist in the event of defects in accordance with § 8 and are otherwise excluded.
- 9 Expiry of the statute of limitations for claims
9.1 The Buyer's claims for defects shall become statute-barred one year after delivery of the goods. If acceptance has been agreed, the limitation period shall commence upon acceptance. Instead of this one-year period, the statutory limitation periods shall apply in the following cases:
- a) in case of liability due to intent,
- b) in case of a fraudulent concealment of a defect,
- c) for claims against SAVEWAY ISOLIERSTOFFE GMBH due to the defectiveness of goods, if they have been used for a construction in accordance with their customary use and have caused its defectiveness,
- d) for claims based on damage to life, body or health resulting from a negligent violation of duty by SAVEWAY ISOLIERSTOFFE GMBH or an intentional or negligent violation of duty by a legal representative or assistant of SAVEWAY ISOLIERSTOFFE GMBH,
- e) for claims for other damages based on a grossly negligent breach of duty by SAVEWAY ISOLIERSTOFFE GMBH or on an intentional or grossly negligent breach of duty by a legal representative or assistant agent of SAVEWAY ISOLIERSTOFFE GMBH, and
- f) in the event of recourse by the Buyer on the basis of the regulations on the sale of consumer goods,
- g) in case of liability of SAVEWAY ISOLIERSTOFFE GMBH according to the product liability law.
9.2 If we have provided a consultation or information which is not to be invoiced separately in breach of duty without having delivered goods in connection with such consultation or information, or if the breach of duty constitutes a material defect pursuant to § 434 BGB, claims against us based thereon shall become statute-barred within one year from the statutory commencement of the limitation period. The aforementioned shall also apply to consulting contracts concluded between SAVEWAY ISOLIERSTOFFE GMBH and the customer without us having delivered goods in connection with this consulting activity. These General Terms and Conditions shall apply analogously to these aforementioned contracts. All data and information concerning the goods and other services of SAVEWAY ISOLIERSTOFFE GMBH as well as other consulting services are provided by SAVEWAY ISOLIERSTOFFE GMBH to the best of knowledge. All data and information on the suitability and application of the goods and other services are non-binding and do not release the customer from the obligation to conduct their own inspections and tests. The customer alone is responsible for compliance with applicable statutory and official regulations in the use of the goods and the implementation of the services.
- 10 Other Liability
10.1 SAVEWAY ISOLIERSTOFFE GMBH shall be liable for damages principally in accordance with the applicable statutory provisions, unless otherwise provided for in these GTC.
10.2 We shall be liable for damages - irrespective of the legal justification - within the scope of fault liability in the event of intent and gross negligence. In the case of ordinary negligence, we shall be liable, subject to statutory limitations of liability (e.g. diligence in own affairs; insignificant breach of duty), only
- a) for damages resulting from injury to life, body or health,
- b) for damages resulting from the breach of an essential contractual obligation ( an obligation the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
10.3 The same shall apply to our liability towards third parties as well as to our liability for assistant agents or other persons whose fault we must be held responsible for according to statutory provisions. The limitations of liability of clause 10.2 shall not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed as well as for claims of the Buyer under the Product Liability Act.
10.4 SAVEWAY ISOLIERSTOFFE GMBH shall not be liable in the event of impossibility or delay of performance of delivery obligations, if the impossibility or delay is due to proper compliance with obligations under public law caused by the Buyer.
- 11 Return of Goods
11.1 If the Buyer withdraws from the purchase contract in accordance with clause 8.6, the place of performance for the reversal of the purchase contract shall be at the registered office of SAFEWAY ISOLIERSTOFFE GMBH.
11.2 Any return deliveries of products shall only be possible with the prior consent of SAVEWAY ISOLIERSTOFFE GMBH. Offsetting of open items against return deliveries is not permitted. If a credit note is issued, the costs incurred by SAVEWAY ISOLIERSTOFFE GMBH for laboratory testing, repackaging, freight costs, preliminary freight etc. shall be deducted; in addition, processing costs of EUR 50.00 shall be charged per return delivery.
- 12 Data Protection
12.1 If SAVEWAY ISOLIERSTOFFE GMBH provides the Buyer with personal data of its employees (hereinafter "Personal Data") in the course of the performance of the Contract or if the Buyer otherwise obtains knowledge of such Personal Data, the following provisions shall apply. Personal Data disclosed in the aforementioned manner and not processed on behalf of SAVEWAY ISOLIERSTOFFE GMBH may be processed by the Buyer exclusively for the performance of the Contract and may not - except where permitted by law - be processed in any other way, in particular disclosed to third parties and/or analysed for its own purposes and/or used to create profiles.
12.2 The Buyer may further process the Personal Data, in particular pass it on to its group companies for the performance of the relevant contract, to the extent permitted by law. The Buyer shall ensure that the Personal Data are only made available to those employees of the Buyer who are assigned to the performance of the relevant contract and only to the extent necessary for the performance of this contract (need-to-know principle). The Buyer shall organize their internal organization in such a way that it meets the requirements of the applicable data protection law, and in particular shall take technical and organizational measures to adequately secure the Personal Data against misuse and loss.
12.3 The Buyer shall not acquire any rights to the Personal Data and shall be obliged to correct, delete and/or restrict the processing of the Personal Data at any time under the statutory conditions. Rights of retention in relation to Personal Data are excluded.
13.4 In addition to their legal obligations, the Buyer shall notify SAVEWAY ISOLIERSTOFFE GMBH without undue delay, at the latest within 24 hours, of any breach of the protection of Personal Data, in particular in case of loss. Upon termination of the relevant Contract, the Buyer shall delete the Personal Data, including any copies made, as required by law.
- 13 Place of performance, place of jurisdiction, choice of law clause
13.1 Place of performance and exclusive, also international, place of jurisdiction for all claims between SAVEWAY ISOLIERSTOFFE GMBH and entrepreneurs within the scope of § 14 BGB (German Civil Code (BGB)) as well as merchants or legal entities under public law or special funds under public law shall be Erfurt. However, SAVEWAY ISOLIERSTOFFE GMBH shall have the right to initiate legal proceedings against the Buyer also at the Buyer's legal place of jurisdiction.
13.2 The legal relationship between SAVEWAY ISOLIERSTOFFE GMBH and the Buyer shall be governed exclusively by the laws of the Federal Republic of Germany. The provisions on the international sale of goods (CSIG - Vienna UN Sales Convention) and the German IPR are expressly excluded. SAVEWAY ISOLIERSTOFFE GMBH does not participate in the dispute resolution procedure according to the Consumer Dispute Resolution Act. Superior statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.